Antitrust Law Daily Wrap Up, RICO NEWS: Supreme Court asked to review dismissal of pro se litigants’ RICO suit, (Sep 24, 2013)

By Peter Reap, J.D., LL.M.

Pro se litigants Brian and Kathleen Kenner have asked the U.S. Supreme Court to review a decision by the U.S. Court of Appeals in San Francisco affirming the dismissal of the petitioners’ RICO lawsuit against 10 Internal Revenue Service (IRS) employees in their individual capacities.

The Ninth Circuit held that “the district court dismissed the Kenners’ RICO claims against the Internal Revenue Service (“IRS”) defendants for failure to state a claim because the Kenners’ allegations against the IRS defendants constitute violations of the Internal Revenue Code (“IRC”) in connection with tax collection activities, and the sole remedy for such claims is 26 U.S.C. § 7433.” However, according to the petition, the Ninth Circuit is in error and the Kenners’ claims sufficiently constitute a RICO violation.

The Kenners argue that the Ninth Circuit has previously held that RICO may be appropriate for use against IRS employees providing the elements of RICO are properly pled and that 26 U.S.C. § 7433 may not be applied to violations of RICO. Furthermore, the Ninth Circuit has held the Kenners’ petition for a rehearing of its ruling “in limbo,” making the Supreme Court’s participation in the dispute all but unavoidable, the Kenners contend. To ignore the Ninth Circuit’s decision would grant federal employees an implied right to immunity for a pattern of racketeering, they assert.

The petition in Brian Kenner v. Erin Kelly, Docket No. 13-372, was filed August 13, 2013.

Attorneys: Brian and Kathleen Kenner, Pro se.

News: RICO