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United States v. Balice

United States District Court, D. New Jersey

May 23, 2018

MICHAEL BALICE et al., Defendants.


          KEVIN MCNULTY United States District Judge

         Mr. Balice has filed dozens of motions under various titles. The court has, in several prior opinions, considered Mr. Balice's arguments and rejected them. (ECF Nos. 71, 102, 152, 167, 208, 210, 216). I have also required that he seek leave of the Magistrate Judge before Filing further motions. (See, e.g., ECF Nos, . 102, 152). Nevertheless, Mr. Balice has submitted several more motions. (ECF Nos. 229, 230, 233, 234, 236, 239)[1] They might be rejected on the ground that they were filed without leave. In the interest of efficiency, however, I briefly consider them.


         Mr. Balice requests reconsideration of the earlier order granting summary judgment in favor of the United States. (ECF No. 229). Reconsideration is denied for two reasons: (A) the motion is untimely and (B) it raises no new arguments.

         (A) First, Mr. Bailee's motion for reconsideration is untimely. Local Civil Rule 7.l(i) provides that a motion for reconsideration must be served and filed within fourteen days after the entry of the order. The order granting summary judgment for defendant was issued on August 9, 2017. (ECF No. 211). Mr. Balice did not file his motion for reconsideration until October 25, 2017-well past the fourteen-day deadline. (ECF No. 229). Mr. Bailee's motion would be untimely even under Federal Rule of Civil Procedure 59(e), which states that "[a] motion to alter or amend judgment must be filed no later than 28 days after the entry of judgment."

         (B) Second, Mr. Balice's motion does not raise arguments appropriate for a motion for reconsideration. Reconsideration is proper in three situations: (1) an intervening change in the law; (2) new, previously unavailable, evidence has become available; or (3) to correct a clear error of law or prevent manifest injustice. See N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995); Carmichael v. Everson, No. 3-cv-4787, 2004 WL 1587894, at *1 (D.N.J. May 21, 2004). Mr. Balice claims that letters sent to him by the IRS "directly contradict this court's summary judgment decisions." (ECF No. 229 at ¶ 2). Mr. Balice does not specifically identify what is wrong with the IRS's accounting; he objects that the balance has changed. Each letter clearly sets forth the "account balance before this change, " which is consistent with prior records. (See ECF Nos. 219-6, 219-7). The IRS updated Mr. Balice's account balance because of ongoing, statutorily determined interest and penalties. This is not new evidence, a new argument, or an intervening change in law that could provide a basis for reconsideration. Therefore, Mr. Balice's request for reconsideration is denied.


         Mr. Balice's circumstances do not warrant a stay pending appeal. Courts in the Third Circuit consider the following factors when considering such a stay: (A) whether the stay applicant has made "a strong showing that they are likely to succeed on the merits"; (B) whether the applicants will be irreparably injured absent a stay; (C) whether the issuance of the stay will substantially injure the other parties interested in the proceeding; and (D) where the public interest lies. Thomerv. Sony Comput Entm't Am. LLC, No. 9-cv-1894, 2013 WL 1868500, at *1 (D.N.J. May 3, 2013). Because granting a stay is "an exercise of judicial discretion", not a matter of right, a stay applicant "bears the burden of showing the circumstances justify an exercise of that discretion." Nken v. Holder, 556 U.S. 418, 433-34 (2009).

         (A) First, Mr. Balice has not made a "strong showing" that is he likely to succeed on appeal. Mr. Balice's primary basis for appeal is that the Sixteenth Amendment does not authorize enforcement of a direct tax without apportionment. Mr. Balice previously made this argument to the Third Circuit on an interlocutory basis. See Balice v. Comm'r, 634 Fed.Appx. 349, 349-50 (3d Cir. 2016). The Third Circuit held that "the type of tax-protestor arguments that Balice raised have long been rejected as frivolous." Id. at 350 & n.l. Mr. Balice cannot make a "strong showing" of likely success.

         (B) Second, Mr. Balice has not demonstrated irreparable harm. The IRS may seize Mr. Balice's property. However, if a court later ruled that he was not liable for some or all of the payment, the damage could be undone by an order requiring repayment with appropriate interest. See In re Carlson, 224 F.3d 716, 718 (7th Cir. 2000); Sherman v. Nash, No. 1551-71, 1977 WL 1143, at *2-3 (D.N.J. Apr. 14, 1977). "The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm." Sherman, 1977 WL 1143, at *3 (citation omitted). Additionally, allegations of economic hardship alone are usually insufficient to establish irreparable harm. See Church of Scientology of Cat v. United States, 920 F.2d 1481, 1489 (9th Cir. 1990); see also Bob Jones Univ. v. Simon, 416 U.S. 725, 745-46 (1974).

         Mr. Balice also seeks a stay to avoid harms that would result from his own actions. For instance, Mr. Balice argues that he "will be subject to indefinite arrest and incarceration for contempt for refusing to vacate the premises [of his property] while appeals are pending." (ECF No. 239 ¶ 33). This harm would result from Mr. Balice refusing to obey a court order-not from the denial of a stay.

         (C) and (D) Third, [2] a stay would injure the public interest. A taxpayer cannot delay the collection of taxes indefinitely by filing frivolous motions and actions. The Government must "assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference." Bob Jones Univ., 416 U.S. at 736. Mr. Balice has delayed resolution of this case numerous times. The public's interest in prompt enforcement of the tax laws weighs heavily against granting a stay.

         In sum, none of the factors weigh in favor of granting a stay. Mr. Bailee's requests for a stay pending appeal are thus denied.


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