NORMAN L. VROMAN
Lawyer
c/o General Delivery
Hopland, California
IN PROPRIA PERSONA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA ) No.CR 91 0213 EFL
)
PLAINTIFF, ) MOTION TO DISMISS
) POINTS AND AUTHORITIES
v )
)
NORMAN LEON VROMAN )
)
DEFENDANT. )
______________________________)
DEFENDANT'S BRIEF IN SUPPORT OF
MOTION TO DISMISS
The Defendant herein, Norman L. Vroman has moved this court
for an order dismissing all five counts of the indictment herein
which allegedly charge offenses proscribed by Title 26, U.S.
Code, section 7201 and 7203 and has asserted that this Court does
not have subject matter jurisdiction of such offenses because of
the failure of various federal agencies to comply with the
mandates of Title 5, U. S. Code, section 552. The motion contends
that there has not been published in the Federal Register any of
the tax returns, statements or lists which may be required to be
made or filed by federal law and further that there has been a
failure of the appropriate federal agency to publish descriptions
Motion to Dismiss:
Page 1 of 38
of its central and field organization as also required by said
section 552. As a result of non-compliance with section 552,
there is no duty or obligation to make or file federal personal
income tax returns. This brief is offered in support of that
motion.
STATUTORY FOUNDATION FOR FEDERAL REGISTER PUBLICATION
Prior to 1935, much of the internal documentation of federal
agencies, as well as regulations promulgated by federal agencies
to administer and enforce a variety of federal statutes, was not
published and generally made available to the American public,
notwithstanding the fact that such documentation and regulations
purported to impose mandatory obligations. The first act which
commanded the publication of agency requirements which affected
the public was the Act of July 26, 1935, 49 Stat. 500, ch. 417;
this act created the Federal Register and compelled federal
agencies to publish therein agency orders and regulations (see
sections 4 and 5 of the act). To insure agency compliance with
the act's requirements, section 7 provided as follows:
"No document required under section 5(a) to be published in
the Federal Register shall be valid as against any person who has
not had actual knowledge thereof."
An expansion of items required to be published in the
Federal Register occurred as a result of the enactment of the
Administrative Procedure Act; see Act of June 11, 1946, 60 Stat.
237, ch 324. An important definition within this act was the
following contained in section 2:
"(c) Rule and rule making. -- 'Rule' means the whole or any
part of any agency statement of general or particular
Motion to Dismiss:
Page 2 of 38
applicability and future effect designed to implement, interpret,
or prescribe law or policy or to describe the organization,
procedure, or practice requirements of any agency...."
And section 3 of the act commanded that the following types
of agency "rules" be published within the Federal Register:
"(a) Rules. Every agency shall separately state and
currently publish in the Federal Register (1) descriptions of its
central and field organization including delegations by the
agency of final authority and the established places at which,
and methods whereby, the public may secure information or make
submittals or requests; (2) statements of the general course and
method by which its functions are channeled and determined,
including the nature and requirements of all formal or informal
procedures available as well as forms and instructions as to the
scope and contents of all papers, reports, or examinations; and
(3) substantive rules adopted as authorized by law and statements
of general policy or interpretations formulated and adopted by
the agency for the guidance of the public, but not rules
addressed to and served upon named persons in accordance with
law. No person shall in any manner be required to resort to
organization or procedure not so published."
Further, the act established a certain method whereby
agencies were to publish in the Federal Register proposed and
final agency rules and were to accord public hearings in
reference thereto. The well known requirements that federal
agencies provide adjudication of certain contested matters,
subject to judicial review, was established for the first time in
this act. Section 9 of the act provided as follows:
Motion to Dismiss:
Page 3 of 38
"No sanction shall be imposed or substantive rule or order
be issued except within jurisdiction delegated to the agency and
as authorized by law."
The benefits to the American public derived from the
adoption of this act are many. For example, without the
requirement to publish statements of the agency's organization, a
party would not know, as a matter of law, what part of an agency
was the proper unit or division responsible for the resolution of
a particular problem, what part of an agency had enforcement
authority, or what part of an agency was designated to receive
"submittals" required of the public. While it is obvious that
social security benefits applications are not submitted to the
Securities and Exchange Commission, it might be entirely improper
to submit such an application to the office secretary for Social
Security's data processing unit. Without the requirement to
publish agency "delegation orders," the American public and its
members are deprived, and possibly detrimentally so, of the
knowledge of which officers and agents within a vast federal
agency are authorized to act on behalf of the agency. The
submission of a tort claim to either the proper officer
designated to receive the same or to the office janitor is of
critical importance if the claim is one year and 364 days old.
Finally, without notice to the American public via publication of
the substantive requirements of a federal agency having delegated
authority to administer and enforce federal laws, nobody,
excluding possibly agency personnel, judges and lawyers, would
have any knowledge of what was required to avoid the imposition
of civil or criminal sanctions.
Motion to Dismiss:
Page 4 of 38
As amended, the above noted statutes continue their
existence today, codified within Title 5, U.S. Code, sections 551
through 558. These sections within Title 5 require that federal
agencies must publish in the Federal Register a variety of
information which affects the rights, duties and obligations of
members of the public. In 5 U.S.C., section 551, a "rule" is
defined thusly:
"(4) 'rule' means the whole or a part of an agency statement
of general or particular applicability and future effect designed
to implement, interpret, or prescribe law or policy or describing
the organization, procedure, or practice requirements of an
agency ...."
Section 552 describes in particular detail various items which
must be published by federal agencies in the Federal Register:
"(1) Each agency shall separately state and currently
publish in the Federal Register for the guidance of the public--
(A) descriptions of its central and field organization
and the established places at which, the employees (and in the
case of a uniformed service, the members) from whom, and the
methods whereby, the public may obtain information, make
submittals or requests, or obtain decisions;
(B) statements of the general course and method by
which its functions are channeled and determined, including the
nature and requirements of all formal and informal procedures
available;
(C) rules of procedure, descriptions of forms available
or the places at which forms may be obtained, and instructions as
to the scope and content of all papers, reports, or examinations;
Motion to Dismiss:
Page 5 of 38
(D) substantive rules of general applicability adopted
as authorized by law, and statements of general policy or
interpretations of general applicability formulated and adopted
by the agency; and
(E) each amendment, revision or repeal of the
foregoing.
Except to the extent that a person has actual and timely
notice of the terms thereof, a person may not in any manner be
required to resort to, or be adversely affected by, a matter
required to be published in the Federal Register and not so
published. For the purpose of this paragraph, matter reasonably
available to the class of persons affected thereby is deemed
published in the Federal Register when incorporated by reference
therein with the approval of the Director of the Federal
Register."
Further, section 552a directs that all federal agencies
which maintain "systems of records" containing data and other
information regarding individual citizens or residents, must
publish descriptions of those systems in the Federal Register;
see section 552a(e)(4). And when any federal agency engages in
the collection of information from an individual, section
552a(e)(3) commands that the individual concerned be informed of
the authority for the collection of the information, the purpose
for which the information is intended to be used, the routine
uses made of the information, and the effect of not providing
such information.
Finally, section 558(b) prohibits an agency from issuing any
substantive rule or order, or imposing any sanctions, outside the
jurisdiction delegated to the agency.
Motion to Dismiss:
Page 6 of 38
As seen from above, section 552 permits "incorporation by
reference", a process governed by 1 C.F.R., part 51. However,
matters which should be published in the Federal Register but
which are deemed included therein "by reference" must be approved
by the Director of the Federal Register and "proper language" so
noting the"incorporation by reference" must appear within agency
rules which are published in the Federal Register. Items which
cannot be published either in the Federal Register or by
incorporation by reference are described at 1 C.F.R., section
5.4. This latter prohibition first appeared in the August 27,
1941, edition of the Federal Register, at page 4398, et seq.
Thus, current statutes impose stringent requirements upon
federal agencies to publish in the Federal Register descriptions
of the agency's organizational structure as well as those
substantive rules of general applicability duly promulgated by
the agency. Any matter required by law to be published, but
which is not, cannot be the basis for the imposition of any
sanction or penalty against anyone.
REQUIREMENT FOR PUBLICATION OF AGENCY ORGANIZATION
Section 552 expressly requires an agency to publish
statements or descriptions of the central and field organization
of the agency and the established places where the public is
required to make submittals. The reasons for such a requirement
are obvious and readily apparent. Almost without exception,
Congressional enactments designate a particular executive branch
officer as the official statutorily authorized to administer and
enforce the act in question. Such an officer further will have
Motion to Dismiss:
Page 7 of 38
similar statutory duties arising not from one but invariably many
acts. Since one such executive officer is physically incapable
of performing the acts required of him by the law, such officials
must create large agencies and delegate statutory
responsibilities to subordinates. Additionally, agencies are
subdivided into a variety of branches, divisions, units,
districts and other minor offices, all of which have different
duties and responsibilities. Federal agencies which employ tens
of thousands of people have administrative, regulatory, data
processing and other branches, and the functions of one branch
simply cannot be performed by any other branch. The purpose of
this requirement in section 552 is to insure that the members of
the American public have the requisite information as to the
authorities and responsibilities of any branch, division or unit
of an agency, and are informed of the proper agency unit with
which such parties must deal.
A quick perusal of the Code of Federal Regulations reveals
that many federal agencies meet the requirements of section 552.
For example, Congress has enacted numerous acts which vest
statutory duties in the hands of the Secretary of Agriculture.
Title 7, C.F.R., part 2, contains approximately 92 pages which
describe both the organizational structure of the Department of
Agriculture and the delegation orders issued by that Secretary to
his subordinates. The Commissioner of the Immigration and
Naturalization Service complies with section 552; see Title 8,
C.F.R., section 2.1, and parts 100 and 103. The following list
identifies other executive officials and departments which
similarly comply and cites the corresponding and applicable
portions of the Code of Federal Regulations wherein statements of
organizational structure and delegation orders may be found:
Motion to Dismiss:
Page 8 of 38
1. Nuclear Regulatory Commission:
10 C.F.R., part 1.
2. Comptroller of the Currency:
12 C.F.R., part 4.
3. Small Business Administration:
13 C.F.R., part 101.
4. Civil Aeronautics Board:
14 C.F.R., part 384.
5. Federal Trade Commission:
16 C.F.R., part 0
6. Consumer Product Safety Commission:
16 C.F.R., part 1000.
7. Commodity Futures Trading Commission:
17 C.F.R., part 140.
8. Securities and Exchange Commission:
17 C.F.R., part 200.
9. Federal Energy Regulatory Commission:
18 C.F.R., part 375.
10. Water Resources Council:
18 C.F.R., part 701.
11. Office of Workers' Compensation:
20 C.F.R., part 1.
12. Railroad Retirement Board:
20 C.F.R., part 200.
13. Benefits Review Board:
20 C.F.R., part 801.
14. Commissioner of Food and Drugs:
21 C.F.R., part 5.
15. Peace Corps:
22 C.F.R., part 302.
16. U.S. Information Agency:
22 C.F.R., part 504.
17. U.S. Arms Control and Disarmament Agency:
22 C.F.R., part 601.
18. Secretary of H.U.D.:
24 C.F.R., part 3.
Motion to Dismiss:
Page 9 of 38
19. Inspector General, H.U.D.:
24 C.F.R., part 2000.
20. Department of Justice:
28 C.F.R., part 0.
21. Environmental Protection Agency:
40 C.F.R., part 1.
The above list is by no means exclusive. Nonetheless, it is
clear that many federal agencies do comply with the statutory
requirement to publish in the Federal Register statements of
organization and staffing, in addition to departmental delegation
orders.
The consequence of an agency's failure to comply with this
specific publication requirement is the prohibition that nobody
may be adversely affected by the lack of publication, and further
that nobody can be forced to resort to an agency's organizational
structure which is not published. In essence, an agency's
published organizational structure is "legally visible" while an
unpublished structure is, for all intents and purposes, "legally
invisible". For example, the American public has duly published
notice of the organizational structure of the Department of
Agriculture and it is through that published structure that this
agency will engage in activities involving domestic enforcement
of the acts within its jurisdiction. In contrast, the Secretary
and Department of State have not published in the Federal
Register the organizational structure of that agency, and the
obvious reason relates to the fact that the State Department has
"international responsibilities" as opposed to domestic; it is
chiefly concerned with treaty responsibilities and thus is
precluded from so publishing its organizational structure and
delegation orders in the Federal Register; see 1 C.F.R., section
5.4.
Motion to Dismiss:
Page 10 of 38
In contrast to the vast number of cases where litigation has
occurred concerning the lack of publication of such things as
agency regulations, there appear to be few cases wherein an issue
has been created regarding the lack of publication of an agency's
organizational structure. The first case involving this point
was Pinkus v. Reilly, 157 F.Supp. 548 (D.N.J., 1957). Here,
Pinkus was engaged in advertising and selling his weight gain
program through the U.S. Mails. The U.S. Post Office contended
that his advertisements were fraudulent and issued an
administrative "fraud order" which in essence precluded Pinkus'
use of the mails. Suffering poorly before the agency, Pinkus
sought judicial review of the fraud order and asserted that the
agency had through unpublished statements of organization in
essence commingled the agency's prosecutorial and adjudicating
authority in the hands of one official, this latter commingling
also being unlawful. The Court held the agency's action of
issuing the fraud order void:
"The last above point raised by Pinkus seems to be directly
and clearly covered by the terms of the Administrative Procedure
Act itself, which provides that 'no person shall in any manner be
required to resort to organization or procedure not so
published'," 157 F.Supp., at 549.
"The question thus is whether at the time Pinkus was
proceeded against by the Department, as above, the Department had
complied with this publication requirement. The prosecution of
Pinkus by the Department, as above, was initiated February 7,
Motion to Dismiss:
Page 11 of 38
1955, so the specific question is whether at that time there
existed in the Federal Register the published 'central and field
organization' of the Post Office Department, its 'delegation of
final authority', and its 'procedures' to which Pinkus was
'required to resort'," 157 F.Supp., at 550.
"It is thus clear that Pinkus was 'required to resort to
organization ... not so published' - in the Federal Register.
This obviously violates the above provision of the statute that
'no person shall in any manner be required to resort to
organization or procedure not so published'. Thus the
Department's present proceedings against Pinkus are invalid,"
157 F.Supp., at 551.
While Pinkus was chiefly complaining that there was an
unlawful commingling of the agency's prosecutorial and
adjudicatory functions and this relationship was unpublished, it
must be remembered that a deciding factor in this case concerned
the fact that the entire organizational structure of the Post
Office was unpublished. While the Post Office had several years
earlier complied with the publication requirement, some six
months prior to the agency proceedings against Pinkus, the agency
had published a notice in the Register which in essence declared
that the last published statement of organization was no longer
in effect. Thus, at the time of the agency proceedings against
Pinkus, the then existing organizational structure of the Post
Office was not described in anything published in the Federal
Register, hence the decision.
Motion to Dismiss:
Page 12 of 38
Shortly after the decision in Pinkus, the same question was
presented to the Second Circuit in Columbia Research Corp. v.
Schaffer, 256 F.2d 677 (2nd Cir., 1958), and Vibra Brush Corp. v.
Schaffer, 256 F.2d 681 (2nd Cir., 1958). In both of these cases,
the facts concerned "fraud orders" issued by the Post Office,
just like Pinkus; further, these two cases also concerned the
unlawful commingling of prosecutorial and judicial functions as
in Pinkus. In the Court's initial decisions in both of these
cases, it was held, based on the authority of Pinkus, that the
administrative actions of the Post Office were void for failure
of the agency to publish its organizational structure in the
Register. It must be noted, however, that these decisions were
reversed upon petition for rehearing, the problem being that
involving substitution of parties because the Postmaster
involved, Schaffer, had resigned prior to the appeals. But, both
cases still demonstrate the legal necessity for an agency to
publish its organizational structure.
Prior to rehearing in Columbia, a decision in G. J. Howard
Company v. Cassidy, 162 F.Supp. 568 (E.D.N.Y., 1958), was
rendered. This case also involved a fraud order issued by the
Post Office regarding a weight loss device named the "Magic
Button", marketed by the Howard Company. Upon the authority of
Columbia, the agency's fraud order was held void. And a similar
decision was made in Low v. Thomas, 163 F.Supp. 945 (E.D.Pa.,
1958).
The statute in question unequivocally requires that federal
agencies must publish in the Register descriptions of the current
organizational structures of the same, and the few cases
regarding this issue more than adequately demonstrate the
consequences of a failure to do so. Potential problems regarding
Motion to Dismiss:
Page 13 of 38
the deficiency of agencies to so publish are created when an
agency changes or modifies its organizational structure in some
partial way, but fails to place the American public on notice by
publication. However, a far more serious problem ensues when an
agency fails to publish statements of its entire organizational
structure and has been remiss in its duty to do so for more than
16 years.
NECESSITY TO PUBLISH SUBSTANTIVE RULES
As previously mentioned, a "rule" for publication purposes
is certainly an agency requirement imposed on the public which
implements or prescribes law. Pursuant to section 552(a)(1)(D),
"substantive rules of general applicability" must be published in
the Federal Register; an omission in this respect means that the
unpublished rule is unenforceable against one without notice.
Perhaps one of the best examples of the consequence of an
agency's failure to publish a substantive rule is Hotch v. United
States, 212 F.2d 280 (9th Cir., 1954). Here, a federal agency
implemented an unpublished regulation which banned commercial
fishing in Taku Inlet on the Alaskan coast. Hotch was prosecuted
and convicted for violating this regulation and his conviction
was at first affirmed on appeal. He filed a petition for
rehearing and asserted for the first time on appeal the issue of
the non-publication of this substantive rule, and this directly
caused a reversal of his conviction. Referring to the
Administrative Procedure Act, the court held:
"The Acts set up the procedure which must be followed in
order for agency rulings to be given the force of law. Unless
the prescribed procedures are complied with, the agency (or
administrative) rule has not been legally issued, and
consequently is ineffective," 212 F.2d, at 283.
Motion to Dismiss:
Page 14 of 38
The situation was somewhat different in Gonzalez v. Freeman,
334 F.2d 570 (D.C.Cir., 1964), where there were no regulations,
published or unpublished, which disposed of the controversy.
Here the Gonzalez Corporation, whose officers were several
Gonzalez brothers, was debarred from conducting business with the
Commodity Credit Corporation, the operative circumstances
involving misuse of official inspection certificates by Thomas
Gonzalez, who was indicted and plead guilty to a misdemeanor.
The corporation and the other Gonzalez brothers filed an action
challenging the validity of the agency's order imposing a 5 year
debarment. The Court held the agency's action void:
"The command of the Administrative Procedure Act is not a
mere formality. Those who are called upon by the government for a
countless variety of goods and services are entitled to have
notice of the standards and procedures which regulate these
relationships. Neither appellants nor others similarly situated
can turn to any official source for guidance as to what acts will
precipitate a complaint of misconduct, how charges will be made,
met or refuted, and what consequences will flow from misconduct
if found," 334 F.2d, at 578.
"Considerations of basic fairness require administrative
regulations establishing standards for debarment and procedures
which will include notice of specific charges, opportunity to
present evidence and to cross-examine adverse witnesses, all
culminating in administrative findings and conclusions based upon
the record so made," 334 F.2d, at 578.
Motion to Dismiss:
Page 15 of 38
"[W]e cannot agree that Congress intended to authorize such
consequences without regulations establishing standards and
procedures and without notice of charges, hearings, and findings
pursuant thereto. Absent such procedural regulations and absent
notice, hearing and findings in this case, the debarment is
invalid," 334 F.2d, at 579.
An unpublished regulation was at issue in Berends v. Butz,
357 F.Supp. 144 (D.Minn., 1973). As a result of severe and
excessive rainfall in 15 counties in Minnesota in early 1972, the
Secretary of Agriculture declared that such counties were
"natural disaster areas" and declared that emergency farm loans
would be available until June 30, 1973; this notice was published
in the Federal Register. But, Secretary Butz terminated the
emergency loan program by an unpublished order issued December
27, 1972. In a suit instituted by several farmers complaining
about the failure of the Department of Agriculture to accept loan
applications, the court held that the loan program could not be
terminated by an unpublished order of the Secretary:
"In adopting the directive of December 27, 1972, defendants
did not comply with even one of these mandatory requirements,
despite the fact that the directive would have a substantial
impact on those regulated, and hence is a 'rule' as contemplated
in the statute," 357 F.Supp., at 154.
"Inherent in these provisions is the concept that the public
is entitled to be informed as to the procedures and practices of
a government agency, so as to be able to govern their actions
accordingly. The termination of the emergency loan program was
without any notice, and was in violation of the provisions of the
statute," 357 F.Supp., at 155.
Motion to Dismiss:
Page 16 of 38
The curtailment of a welfare program's benefits via an
unpublished agency manual was the subject of Morton v. Ruiz, 415
U.S. 199, 94 S.Ct. 1055 (1974). In this case, an Indian named
Ruiz, being otherwise eligible for Indian welfare benefits
available through a Congressional appropriation, was denied such
benefits on the basis of an unpublished agency manual which
denied benefits to all Indians but those living "on" Indian
reservations. The Court here construed the appropriations act as
extending benefits to Indians who lived "on or near" a
reservation, and held that the agency manual which limited
benefits to only those Indians "on" reservations was void and
unenforceable:
"The Administrative Procedure Act was adopted to provide,
inter alia, that administrative policies affecting individual
rights and obligations be promulgated pursuant to certain stated
procedures so as to avoid the inherently arbitrary nature of
unpublished ad hoc determinations," 415 U.S., at 232.
"The conscious choice of the Secretary not to treat this
extremely significant eligibility requirement, affecting rights
of needy Indians, as a legislative-type rule, renders it
ineffective so far as extinguishing rights of those otherwise
within the class of beneficiaries," 415 U.S., at 236.
In Northern California Power Agency v. Morton, 396 F.Supp.
1187 (D.D.C., 1975), at issue was whether an agency could make
informal, ad hoc and unpublished rules of procedure to govern
proceedings in which the public had an interest. Here, the
Department of Interior operated a hydroelectric power generation
Motion to Dismiss:
Page 17 of 38
project and sold such power to 54 electrical power companies.
Interior proposed a substantial rate increase to which its
customers objected; an informal and constantly changing
procedural plan was devised by which the complaints so made would
be decided by the agency. The Court held, however, that the
failure to conduct agency hearings pursuant to published rules of
procedure violated section 552.
A variety of issues based upon the provisions of the Clean
Air Act were at issue in Maryland v. Environmental Protection
Agency, 530 F.2d 215 (4th Cir., 1975). In this case, Maryland
complained that certain regulations of the EPA which allegedly
applied to it had not been subjected pre-promulgation publication
in the Federal Register. Finding that the challenged regulations
were published in final form in the Federal Register but had not
been published therein in the notice and comment phase of the
process of regulation promulgation, the same were found void and
unenforceable. See also Rowell v. Andrus, 631 F.2d 699 (10th
Cir., 1980).
At issue in Appalachian Power Company v. Train, 566 F.2d 451
(4th Cir., 1977), was the failure of the EPA to publish a very
lengthy document named "Development Document" in the Federal
Register. This document (described in Virginia Electric and
Power Company v. Costle, 566 F.2d 446, 448 (4th Cir., 1977)) was
263 pages long and purported to establish standards for effluent
emissions. Because the document itself constituted a substantive
agency regulation which was not published, it was held invalid:
Motion to Dismiss:
Page 18 of 38
"[T]he Development Document is not a validly issued part of
the regulations, because it has not been published in the Federal
Register, nor have the procedural requisites for incorporation by
reference been complied with. With this position we agree, and
hold that 40 C.F.R., section 402.12 is not enforceable for want
of proper publication," 566 F.2d, at 455.
"Any agency regulation that so directly affects pre-existing
legal rights or obligations ..., indeed that is 'of such a nature
that knowledge of it is needed to keep the outside interests
informed of the agency's requirements in respect to any subject
within its competence,' is within the publication requirement....
As the substance of a regulation imposing specific obligations
upon outside interests in mandatory terms ..., the information in
the Development Document is required to be published in the
Federal Register in its entirety, or, in the alternative, to be
both reasonably available and incorporated by reference with the
approval of the Director of the Federal Register," 566 F.2d, at
455.
See also PPG Industries, Inc. v. Costle, 659 F.2d 1239
(D.C.Cir., 1981).
An unpublished policy statement was at issue in Dean v.
Butz, 428 F.Supp. 477 (D.Hawaii, 1977). This case involved an
agency determination that security deposits for rental housing
paid by a government agency should be considered as "income" for
food stamp purposes, this determination being made by an
unpublished letter. In holding this agency policy void for lack
of publication, the Court held:
Motion to Dismiss:
Page 19 of 38
"The Mellinger letter does not involve housekeeping
operations nor adjudicatory opinions. It is a clarification of
existing regulations. It, however, does have a significant
impact upon a segment of the public, the members of the class
here. If the monies for security deposits are counted as income
to the members of the class, the class members must pay more for
food stamps.... The effect of an increased cost for food stamps
has a substantial impact upon their limited budgets. Therefore,
under the Ninth Circuit's test, the regulation is of general
applicability. Since the Mellinger letter was not published in
the Federal Register, as required by 5 U.S.C. section
552(a)(1)(D), it is invalid," 428 F.Supp., at 480.
The question before the court in Vigil v. Andrus, 667 F.2d
931 (10th Cir., 1982), was the validity of the curtailment of a
school lunch program for Indian children. Here, the Bureau of
Indian Affairs administered a program whereby such lunches were
provided to all Indian children regardless of need. This program
was transferred to the Department of Agriculture, which provided
free lunches only to the needy. The challenge made regarding the
non-publication of the transfer of the program to the Department
of Agriculture and consequent elimination of certain children
from the program was upheld and the unpublished transfer was
declared void:
"If a substantive rule or general policy is not published,
parties without actual notice cannot be adversely affected by it.
"Therefore, we find the BIA's policy changes invalid for
want of publication. If the BIA wishes to eliminate nonneedy
Indian school children from the free lunch program, it must
comply with its current rulemaking procedures," 667 F.2d, at 938.
Motion to Dismiss:
Page 20 of 38
An unpublished Social Security claims manual which directly
affected entitlement to Social Security benefits was found void
in Herron v. Heckler, 576 F.Supp. 218 (N.D.Cal., 1983). The
manual in question in this case provided for the reduction or
elimination of Social Security benefits in the event the
beneficiary owned property valued in excess of a certain amount.
The claimant's argument that the manual's provision thus limiting
benefits was void for want of publication in the Federal Register
met with the approval of the District Court in this case:
"The claims manual provisions clearly fall within the
definition of 'rule' quoted above: they are an agency statement;
they are applicable prospectively to a class of SSI beneficiaries
generally and to the named plaintiff particularly; and by
defendants' own admission in their memoranda, they are designed
to implement, interpret and/or prescribe law. Moreover, the
claims manual provisions are 'rules' as the term generally has
been construed by the courts: they declare policies generally
binding on the affected public; they provide specific standards
to regulate future actions of the affected public; and they make
a substantive impact on the rights and duties of persons subject
to their limitations," 576 F.Supp., at 230.
"In sum, the Secretary was required, by the express terms of
the APA and the 'substantial impact' principle, to notify the
public and to solicit comments before she promulgated the claims
manual limitations at issue here. Her failure to comply with the
notice and comment provisions of the APA renders the challenged
limitations void and unenforceable," 576 F.Supp., at 232.
It is thus clear from the above cited and quoted cases,
representative samples of the multitude of similar cases, that an
agency's failure to publish any document (regardless of how named
by the agency) which is designed to implement or prescribe law is
a "rule" which is void and unenforceable.
Motion to Dismiss:
Page 21 of 38
NECESSITY TO PUBLISH INSTRUCTIONS
Within an agency, "instructions" may be promulgated and
distributed to agency officers and employees informing them as to
the manner and method of implementing and enforcing any
particular law. If by chance these "instructions" likewise meet
the definition of a "rule" as defined by section 551, and if the
same be "substantive" as prescribed by section 552, they must be
published in the Federal Register. Several cases have found such
"instructions" to agency employees void for non-publication.
It appears that one of the first cases to deal with this
issue was United States v. Morelock, 124 F.Supp. 932 (D.Md.,
1954). This case concerned an act to regulate the production of
wheat, which of necessity required agriculture officials to
measure the amount of acreage devoted to wheat production. To
accomplish this purpose, agency "instructions" given to agency
employees outlined measurement procedures and the same required
some affirmative acts on the part of farmers. When suit was
instituted to force some dissenting farmers to permit measurement
of their wheat crops, the farmers replied that their supposed
duties under the act as set forth within the unpublished
"instructions" were void. The District Court agreed:
"But there is no provision in the Act or the Regulations
imposing any duty on farm operators in connection with the visits
of the reporters or other representatives of the county
committee. The only obligation on farm operators in that
connection is set out in Paragraph II D of Instruction No.
1006.... This instruction was not published in the Federal
Register or otherwise brought to the attention of defendants
before suit. It was, therefore, not binding on them," 124
F.Supp., at 944.
Motion to Dismiss:
Page 22 of 38
"As we have seen, those Instructions were not published in
the Federal Register, and therefore cannot impose any affirmative
duty on defendants," 124 F.Supp., at 945.
During the height of the Viet Nam war, certain draft law
regulations outlined a procedure whereby conscientious objectors
would be inducted for civilian service. But, the operation of
this procedure concerning conscientious objectors was
substantially varied by the issuance of a "Letter to All State
Directors" and a temporary "instruction", both of which were not
published in the Federal Register notwithstanding the fact that
the same had an adverse impact upon such objectors. In Gardiner
v. Tarr, 341 F.Supp. 422 (D.D.C., 1972), upon challenge, these
documents were found void as unpublished substantive rules:
"While the pre-publication and publication sections of the
Act and the implementing Executive Order do not further define
what are considered to be 'Rules' and 'Regulations', it is
inconceivable that policies intended to have the force and effect
of the policies purporting to effect the Plaintiffs in this
proceeding, may be considered anything other than 'Rules and
Regulations', notwithstanding the label attached by Defendant,
and may be applied to Plaintiffs or any affected registrant
without having been published in a manner in accordance with the
Act. Whatever Defendant has entitled these unpublished but
written policies, they 'purport[s] to be an authoritative
Motion to Dismiss:
Page 23 of 38
declaration of policy issued for the guidance of the [Selective
Service] System's line officers....' Therefore, the letters and
Temporary Instruction in question are as much 'regulations' as
any administrative agency's standardized, enforced, and broad
policy directives," 341 F.Supp., at 434.
The same issue was raised in Piercy v. Tarr, 343 F.Supp.
1120 (N.D.Cal., 1972), which resulted in a similar holding.
The validity of an unpublished instruction affecting the
food stamp program was at issue in Aiken v. Obledo, 442 F.Supp.
628 (E.D.Cal., 1977). While the food stamp program is federally
funded and state administered, federal regulations establish the
standards for eligibility. But, in this case, an indigent and
eligible family was denied such assistance because of an
unpublished "FNS (FS) Instruction 732-1, section 2313", which
limited eligibility by a "collateral contact requirement and a 6
month rule." These limitations upon food stamp entitlement
contained in "instruction" to employees administering the program
were held void for want of publication:
"Interpretative rules '... consist of administrative
construction of a statutory provision on a question of law
reviewable in the courts'.... They do not have the force of
law....
"The 'collateral contact' and 'six month' rules set forth in
the instruction in question have the force of law....
"Procedural rules are those that relate to the method of
operation of the agency, while substantive rules are those which
establish standards of conduct or entitlement..." 442 F.Supp., at
649.
Motion to Dismiss:
Page 24 of 38
"Since it is undisputed that the 'collateral contact' rule
was not so published, it was adopted in violation of notice and
comment provisions of the APA and must be declared void and set
aside," 442 F.Supp., at 650.
And a similar problem regarding the food stamp program was
raised in Anderson v. Butz, 550 F.2d 459 (9th Cir., 1977), which
considered a different aspect of the unpublished "Food and
Nutrition Service (FNS), Food Stamp (FS) Instruction 732-1",
before the court in Aiken, supra. Here the unpublished
instructions commanded that HUD rent subsidies should be
considered as "income" for food stamp purposes. Finding a
substantial impact upon recipients of food stamps as a
consequence of the "rule" contained in the unpublished
instructions, the Court declared such rule void and
unenforceable. See also United States v. Shearson Lehman Bros.,
Inc., 650 F. Supp. 490, 496 (E.D. Pa., 1986); and United States
v. Riky, 669 F. Supp. 196, 201 (N.D. Ill., 1987).
Thus, the above case authority clearly shows that
"instructions" given to agency personnel which command the
performance of an act by a member of the public or which limit
entitlement to statutory benefits are subject to the publication
requirement. If such "rules" found in agency instructions to
agency personnel must be published, then likewise similar
"instructions" given directly by the agency to the public must
also be published on the grounds that the same similarly are
"rules".
Motion to Dismiss:
Page 25 of 38
NECESSITY TO PUBLISH FORMS
As seen from the above cases, agency "rules", especially
those which are not published, can appear in a variety of
documents such as manuals, letters, instructions and other
things. Additionally, forms used by agencies can fall within the
ambit of a "substantive rule", especially those designed to
implement a law, thus necessitating publication. Several cases
have considered the issue of the consequence of non-publication
of such an agency form.
In United States v. Two Hundred Thousand Dollars ($200,000)
in United States Currency, 590 F.Supp. 866 (S.D.Fla., 1984), at
issue was the validity of Customs Form 4790 (Currency Transaction
Report), used in the enforcement of the Currency and Foreign
Transactions Reporting Act. In this case, a man named Palzer had
suffered the seizure of $200,000 by Customs when he entered the
country and failed to submit form 4790. In the resulting
forfeiture proceedings, Palzer intervened and asserted the
invalidity of the form because it constituted an agency "rule"
which had not been published in the Federal Register. In
considering Palzer's claim, the court here found that regulations
required the filing of a form, although the substance and
contents of the information required to be supplied was not
addressed in the regulations:
"However, the regulations are incomplete in this case
without the forms, because the regulations do not set forth the
information a traveler will be required to furnish on the forms,
specifically Form 4790," 590 F.Supp., at 869.
The Court found that the form itself constituted an agency
"rule":
Motion to Dismiss:
Page 26 of 38
"Interpretative rules are 'statements as to what the
administrative officer thinks the statute or regulation means',
... whereas substantive rules, such as Form 4790, are issued by
an agency pursuant to statutory authority which have the force
and effect of law.... It is also apparent that Form 4790 is not
a 'general statement of policy' as would be exempted from the
publication requirement under 5 U.S.C. section 553(b). That Form
4790 is a 'legislative' rule rather than an interpretive one or a
general statement of policy is apparent from the fact that the
form was clearly intended to implement the pertinent statute ...
and the regulation...; section 551(4) of the APA distinguishes
agency statements designed to implement a law from those designed
to interpret it," 590 F.Supp., at 870, 871.
Finding that the form in question was a "rule" which had not
been published, the Court declared:
"Given the scope of the information which Customs Form 4790
requires a traveler to furnish, as well as the Form's role as an
implementing mechanism for the reporting regulations, Form 4790
is a substantive and implementing rule which falls within none of
the acceptable exemptions under the APA and should have been
published in the Federal Register," 590 F.Supp., at 871, 872.
Another case addressing the issue of whether an agency form
is likewise a "rule" requiring publication is United States v.
Reinis, 794 F.2d 506 (9th Cir., 1986). In this case, Reinis was
charged with money laundering and consequent failure to file the
C.T.R. Form 4789. In a short opinion, and based upon the
authority of the opinion noted immediately above, it was held
that this form was a substantive rule which was invalid for
failure of the agency to publish the same in the Federal
Motion to Dismiss:
Page 27 of 38
Register. See also United States v. Cogswell, 637 F. Supp. 295,
298 (N.D. Cal., 1985); United States v. Gimbel, 830 F.2d 621, 626
(7th Cir., 1987); United States v. Risk, 672 F. Supp. 346, 358
(S.D. Ind., 1987), affirmed at 843 F.2d 1059 (7th Cir., 1988);
and United States v. Hayes, 827 F.2d 469, 471, 472 (9th Cir.,
1987).
MAJOR PUBLICATION DEFICIENCIES OF THE
DEPARTMENT OF THE TREASURY
The critical contention at issue in this case regards the
prosecution's assertion that the Defendant was required to file
income tax returns pursuant to the Internal Revenue Code, but he
failed to submit to the agency in question the appropriate tax
return, statement or list as supposedly required, and he failed
to make these submittals to the appropriate office purportedly
designated by the Secretary. Because of these alleged
deficiencies or failures to perform, the Defendant is thus
subjected to prosecution. In reply, the Defendant asserts that
this prosecution must fail entirely, due to severe and profound
omissions occurring on the part of those claiming the statutory
authority to administer and enforce the Internal Revenue Code,
which failure obviates any requirement to file federal personal
income tax returns.
The Administrative Procedure Act as above noted commands
that federal agencies must publish in the Federal Register the
following information:
(a) descriptions of the agency's central and field
organization;
(b) agency delegation orders;
(c) forms and descriptions of forms; and
(d) substantive rules.
Motion to Dismiss:
Page 28 of 38
The present motion of the Defendant asserts that Treasury
and its subordinate units (I.R.S., Customs and B.A.T.F.) have not
in many years published statements of the organizational
structure of this agency and its corresponding units. The
contention is further made that there has been a complete failure
of the responsible agency to publish income tax forms and
applicable instructions, the same constituting "rules" under the
APA.
While the prosecution has been silent thus far in this case
regarding its theory of prosecution, by drawing upon the
experience of other tax cases the same can be fairly established.
Herein, the prosecution assuredly contends that the Defendant had
"income" during the subject years, thus necessitating the making
of income tax returns under section 6012 of the Internal Revenue
Code and the filing thereof as required by section 6091. Because
computer records fail to disclose that the Defendant filed
returns, he has thus violated section 7203. But, the positive
duty and obligation of the Defendant to act in this fashion is
based almost entirely upon assumptions having no legal support.
Analysis of section 6012 is very revealing. Subsections (a)
and (b) thereof simply define classes of individuals and other
entities under a supposed obligation to make returns; these two
subsections fail to identify the precise contents of the return
which should be so made, a fatal omission; see Viereck v. United
States, 318 U.S. 236, 63 S. Ct. 561 (1943). Up until 1986,
subsection (c) indicated that a return should include information
regarding income excluded under sections 121 and 911 of the Code.
Motion to Dismiss:
Page 29 of 38
Starting in 1987, subsection (d) was added which further
indicated that a return should include interest exempt from
taxation. Other than the items noted in subsections (c) and (d),
there is nothing appearing in the statute which describes the
contents of the return which should be so made.
The regulation at 26 C.F.R., section 1.6012-1, attempts in a
vague manner to remedy these statutory deficiencies, but the
effort so made by this regulation still fails to meet the
mandates of section 552 of the APA. While Forms 1040, 1040A,
1040W, 1040NR and 2555 are mentioned in this regulation, neither
the contents of these forms nor the forms themselves have been
published as required. And, it is essential to properly fill out
these forms to consult the applicable instructions, but here
again, the instructions likewise have not been published.
Section 6091 concerns the places where returns should be
filed, those places being an internal revenue district or service
center, as the Secretary may so designate by regulations. Title
26 C.F.R., section 1.6091-2(a), commands that individual income
tax returns "shall be filed with the district director for the
internal revenue district" where the taxpayer resides. An
exception to subsection (a) of this regulation is subsection (c),
which provides as follows:
"Notwithstanding paragraphs (a) and (b) of this section,
whenever instructions applicable to income tax returns provide
that the returns be filed with a service center, the returns must
be so filed in accordance with the instructions."
Motion to Dismiss:
Page 30 of 38
Thus, the place where one files the "submittal" required
under sections 6012 and 6091 are generically described as
district director's offices or service centers. But, these places
are "legally invisible" because neither the Treasury nor the
I.R.S. have currently published descriptions of their central and
field organizations.
OBJECTION TO TAX RETURNS
Apparently, a taxpayer may submit pursuant to section 6012 a
"return, statement or list" reporting his income. But, section
552(a)(1)(C) compels a federal agency to publish in the Federal
Register "forms" and "instructions as to the scope and content of
all papers, reports, or examinations." However, concerning
income taxes, no "returns, statements or lists" are published;
and there are no published descriptions of these "returns,
statements or lists", or "instructions" as to their scope or
contents. Thus, the legal requirement allegedly imposed under
section 6012 of the Code, and the corresponding regulation,
1.6012-1, is nonexistent and void because of agency failure to
publish the items required by statute.
Additionally, tax forms and applicable instructions
constitute "substantive rules" as mentioned in section
552(a)(1)(D) of the APA. Individual income tax returns clearly
"implement" the Code and particularly give force to section 6012
and its corresponding regulation. Further, to fill out such
returns, it is essential to consult applicable "instructions"
which define the "scope and contents" of the forms. Since no tax
returns have been published, there can be no requirement to make
any of them under the authority of United States v. $200,000,
supra, and United States v. Reinis, supra. On the authority of
United States v. Morelock, supra, Gardiner v. Tarr, supra, Piercy
Motion to Dismiss:
Page 31 of 38
v. Tarr, supra, Aiken v. Obledo, supra, and Anderson v. Butz,
supra, the applicable instructions for income tax returns,
statements or lists cannot impose any duty because they are
likewise unpublished. If instructions to agency employees can
constitute a "rule" for APA purposes, then likewise
"instructions" to the American public are so as well.
OBJECTIONS TO FILING REQUIREMENT
Section 6091 and its corresponding regulation, 1.6091-2,
facially command the public to file individual income tax returns
with "district directors or service centers." But, there is no
legal obligation to do so because not only these agency divisions
but also the entire parent agency are "legally invisible".
By statute, the Secretary of the Treasury is vested with the
authority to administer and enforce the Code; see sections 7801
through 7805. But, for unknown reasons, the organizational
structure of Treasury is unpublished, and the same deficiency
exists regarding the I.R.S., Customs and B.A.T.F.
Regarding the organizational structure of the I.R.S., it
must be noted that in the past this agency published in the
Federal Register its statement of organization and staffing,
I.R.M. 1100. The below list contains the cites to where former
versions of I.R.M. 1100 were so published:
1. 21 Fed. Reg. 10418, 1957-1 Cum. Bul. 679;
2. 26 Fed. Reg. 6372, 1961-2 Cum. Bul. 483;
3. 30 Fed. Reg. 9368, 1965-2 Cum. Bul. 863;
4. 32 Fed. Reg. 727, 1967-1 Cum. Bul. 435;
5. 34 Fed. Reg. 1657, 1969-1 Cum. Bul. 403;
6. 35 Fed. Reg. 2417, 1970-1 Cum. Bul. 442;
7. 36 Fed. Reg. 849, 1971-1 Cum. Bul. 698;
8. 37 Fed. Reg. 20960, 1972-2 Cum. Bul. 836;
9. 39 Fed. Reg. 11572, 1974-1 Cum. Bul. 440.
Motion to Dismiss:
Page 32 of 38
Since the last publication of I.R.M. 1100 in 1974, there
have been some approximately 3500 pages of changes made to this
manual. The current I.R.M. 1100 has nothing contained within it
which has been published. Thus, for the last 15 years, the
entire organizational structure of the I.R.S. has been
"invisible" to the law.
All persons are charged with notice of the authority of
government agents; see Continental Casualty Co. v. United States,
113 F.2d 284 (5th Cir., 1940); Hale County, Texas v. American
Indemnity Co., 63 F.2d 275 (5th Cir., 1933); United States v.
Foster, 131 F.2d 3 (8th Cir., 1942); and Federal Crop Insurance
Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1 (1947). The purpose
of the APA, particularly section 552(a)(1)(A), is to give force
to the above principle of law. However, since the I.R.S. has
failed to publish its organization structure as required, and
particularly to publish descriptions of district directors and
their offices, and service centers, nobody can be forced to or
adversely affected by any failure to make submittals to these
entities which, for legal purposes, are "invisible."
CONCLUSION
Because the appropriate federal agency has failed to publish
in the Federal Register the "returns, statements or lists" as
required by the APA and has further failed to publish
descriptions of central and field organization wherein the public
must make submittals, as a matter of law there was no obligation
on the part of the Defendant to make or file federal income tax
returns. For this reason, the indictment herein is due to be
dismissed.
Motion to Dismiss:
Page 33 of 38
Respectfully submitted this the ____ day of _________.
/s/ Norman Vroman
________________________
NORMAN L. VROMAN
In Propria Persona
Motion to Dismiss:
Page 34 of 38
CERTIFICATE OF SERVICE
It is hereby certified that a true and correct copy of the
foregoing was hand delivered to the United States Attorney, at
his respective office, on this ___ day of __________, 1991.
/s/ Norman Vroman
___________________________
Norman L. Vroman
Motion to Dismiss:
Page 35 of 38
Norman L. Vroman
Lawyer
c/o General Delivery
Hopland, California
IN PROPRIA PERSONA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, ) No. CR 91 0213 EFL
)
PLAINTIFF, ) MOTION TO DISMISS
)
v )
)
NORMAN LEON VROMAN, )
)
DEFENDANT. )
______________________________)
Comes now the Defendant herein, Norman Leon Vroman, and
moves this Honorable Court to dismiss counts 1 through 5 of the
indictment herein on the grounds that this Court lacks subject
matter jurisdiction over such offenses. In support hereof, the
Defendant shows as follows:
1. That the theory of the prosecution's case in this cause
is based upon the assertion that the Defendant had an obligation
and legal duty under section 6012 of the Internal Revenue Code to
make tax returns for the years in question and to file those
returns pursuant to section 6091 of the same Code;
2. That there is no such asserted legal duty to so act on
the part of the Defendant because neither the Department of the
Treasury nor the Internal Revenue Service have published the
returns, statements or lists required under section 6012 of the
Code in the Federal Register as mandated by Title 5, U.S. Code,
section 552;
Motion to Dismiss:
Page 36 of 38
3. That there is no duty to file such returns, statements
or lists with any federal agency because of the failure of both
the Department of the Treasury and the Internal Revenue Service
to publish in the Federal Register descriptions of the central
and field organizations of these agencies as mandated by Title 5,
U.S. Code, section 552;
4. That in the absence of publication of both the tax
forms and applicable instructions thereto at issue in this cause
as well as descriptions of agency structure which define the
place where Defendant was under a supposed duty to make
submittals, the prosecution of the counts mentioned above in this
cause is barred under the authority of Title 5, U.S. Code,
section 552.
Wherefore, the premises considered, the Defendant moves this
Court for an order dismissing counts 1 through 5 of the
indictment in this cause for failure of the appropriate agencies
to comply with the requirements of the Administrative Procedure
Act. This motion is supported by the attached and following
brief.
Respectfully submitted this the ____ day of ________, 1991.
/s/ Norman Vroman
__________________________
Norman L. Vroman
In Propria Persona
Motion to Dismiss:
Page 37 of 38
CERTIFICATE OF SERVICE
I hereby certify that I have this date served a copy of the
foregoing motion and supporting brief to the United States
Attorney by hand to him at his respective office.
Dated this the ____ day of ___________, 1991.
/s/ Norman Vroman
___________________________
Norman L. Vroman
Motion to Dismiss:
Page 38 of 38
# # #
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U.S.A. v. Vroman