United States District Court, D. New Jersey
MCNULTY United States District Judge
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) They might be rejected on the ground
that they were filed without leave. In the interest of
efficiency, however, I briefly consider them.
MOTION TO ALTER OR AMEND ORDER OF SALE (ECF No. 229)
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.
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
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.
MOTION TO STAY ENFORCEMENT OF THE ORDER OF THE COURT PENDING
RESOLUTION OF APPEALS (ECF Nos. 230, 239)
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).
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.
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,
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.
and (D) Third,  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
none of the factors weigh in favor of granting a stay. Mr.
Bailee's requests for a stay pending appeal are thus
MOTION TO VOID JUDGMENT FOR LACK OF SUBJECT-MATTER