Patriot Attorney
Cheyenne, WY 82003

Patriot Attorney
Arlington, VA 22209-2004

Attorneys for Plaintiff


                                                      IN THE UNITED STATES DISTRICT COURT FOR THE
                                                                   DISTRICT OF WYOMING


Marilyn Patriot,                         )
                                         )
                Plaintiff,               )
                                         )
   v.                                    )       Civil No. 2:0xx-xx-xxx
                                         )
UNITED STATES OF AMERICA,                )
                                         )
               Defendant.                )
_________________________________________)

REPLY TO UNITED STATES’ OPPOSITION TO PLAINTIFF’S MOTION FOR INTERIM AWARD

1. On October 24, 2008 Defendant filed an opposition to Plaintiff’s motion for interim attorney fees based mainly on the followings: (1) Award of attorney fees in this action is covered by section 7430; (2) 28 USC § 2412(e) excludes proceedings to which section 7430 applies; (3) the court lacks jurisdiction until a final determination has been made.

2. In making these arguments, Defendant is either in error or intentionally misleading the court.

I. 26 USC § 7430 does not apply to this case

3. 28 USC § 2412(e) states: “The provisions of this section shall not apply to any costs, fees, and other expenses in connection with any proceeding to which section 7430 of the Internal Revenue Code of 1986 applies…”

4. However, 26 USC § 7430 does not apply to this case because it is cited under § 7433(e)(2)(B) which specifically relates to bankruptcy procedure.

5. This case is unrelated to bankruptcy of section 7433(e). Instead, this case relates to section 7433(a) and (b). Therefore, all of Defendant’s arguments relating to the inapplicability of the Equal Access to Justice Act to are false and irrelevant.

II. Defendant’s “Final Determination” Argument is Immaterial

6. Defendant argument that attorney fees would have to await final determination is also irrelevant. Defendant has largely based these arguments on 26 USC § 7430(c)(4)(c).

7. First, as stated earlier, section 7430 does not apply to this case.

8. Second, local Civil Rule 54.3 (g) permits a party claiming to be entitled to an award of interim attorney’s fees to submit a motion in this regard.

9. Third, the Equal Access to Justice Act amendments permit attorney fee petitions to be filed before final judgment. Haitian Refugee Center v. Meese, 791 F.2d 1489 (C.A.11 (Fla.), 1986) The legislative history of the EAJA amendments states that fee petitions may be filed before a final judgment. (H.R.Rep. No. 99-120, 18 n. 26, U.S.Code Cong. & Admin.News 1985, p. 146.) The EAJA, as amended, thus follows the trend of decisions under other fee statutes which permit interim fee awards in appropriate circumstances. See Gaines v. Dougherty County Board of Education, 775 F.2d 1565 (11th Cir.1985); Jonas, 758 F.2d at 567. Haitian Refugee Center at 1495-1496.

III. Sovereign Immunity has been waived

10. Defendant makes an argument about sovereign immunity stating that the United States is immune from suit except where it has expressly consented.

11. First, The United States has already consented to this action since it is a party to it and has been litigating it for over a year.

12. Second, Plaintiff is seeking interim attorney fees in an action to which the United States has already consented.

13. Third, the EAJA is a waiver of sovereign immunity. Action on Smoking and Health v. Civil Aeronautics Board, 724 F.2d 211, 225 (D.C.Cir.1984).

IV. Government attorneys are violating their professional responsibility

14. The ABA Model Code of Professional Responsibility EC 7-14 states: “A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and fair record, and he should not use his position or the economic power of the government to harass parties or to bring about unjust settlements or results.”

15. In this case, elderly Plaintiff has had problems with the IRS for many years. Her counsel has been working with her for over a year without adequate pay. Instead of pursuing a fair playing field, government lawyers have the audacity to first oppose compensating Plaintiff’s attorney and second to falsify arguments in doing so.

16. In this case, government attorneys are using the economic power of the government against an impoverished Plaintiff and her attorney to bring about an unjust result.

V. Defendant’s Conduct is Unreasonable

17. It is unreasonable for Defendant to engage in a long, protracted defense where it was clear that the IRS had clearly committed illegal or negligent acts in its collection of taxes from Plaintiff, as evident by Plaintiff overcoming Defendant’s motion to dismiss and the District of Columbia court ruling.

18. It has also been unreasonable for the government to continue in this litigation instead of seeking settlement, especially after the D.C. Court denied the government’s motion to dismiss.

19. It is also unreasonable to expect of Plaintiff’s counsel to continue to work for free in preparation for trial, especially after overcoming the government’s motion to dismiss.

20. Plaintiff has already prevailed on certain merits leading to the transfer of the case from the District of Columbia to Wyoming rather than total dismissal. Plaintiff has a substantial likelihood to prevail on the claims outlined in her amended complaint.

21. There is no evidence of delay in this litigation that is attributable to Plaintiff.

VI. Conclusion

22. Plaintiff is entitled to an interim award of attorney fees. The term “fees and other expenses” includes attorney fees. 28 U.S.C. § 2412(d)(2)(A).

23. Congress enacted the Equal Access to Justice Act to encourage lawyers to undertake litigation to vindicate constitutional and statutory rights of those individuals who could not otherwise afford to vindicate those rights. In this case, Plaintiff cannot afford to pay reasonable attorney fees.

24. A hardship situation does exist in this case and which the court cannot overlook or ignore.

25. The EAJA amendments permit attorney fee petitions to be filed before final judgment. This Court has jurisdiction and must assist Plaintiff in seeking review of, or defending against, unreasonable governmental action. Therefore, this Court must pass a judgment in line with what Congress has commanded and award the fees requested.

WHEREFORE Plaintiff requests that this Honorable Court do grant the relief herein requested and other relief the Court deems appropriate.

Respectfully submitted,

_/s/ Patriot Attorney Date: November 2, 2008
Patriot Attorney

CERTIFICATE OF SERVICE

IT IS HEREBY CERTIFIED that a true and correct copy of the foregoing documents, along with the attached Proposed Order, have been served upon the following via the ECF electronic filing system on November 2, 2008:

KELLY H. RANKIN
United States Attorney

ADAIR F. BOROUGHS
Trial Attorney, Tax Division
U.S. Department of Justice
P.O. Box 683
Washington, DC 20044

Attorneys for the United States

_/s/ Patriot Attorney
Patriot Attorney