UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JASON HOMMEL CASE NO. 03-15170

Appellant/Petitioner

vs.

Appellee/Respondent

APPELLANT’S INFORMAL OPENING BRIEF

1. Jurisdiction

a. Timeliness of Appeal or Petition:

(i) Date of entry of judgment or order of district court: 12-30-2002

(ii) Date of service of any motion made after judgment (other than for fees and costs): N/A

(iii) Date of entry of order deciding motion: 12-31-2002

(iv) Date notice of appeal or petition filed: 1-27-2003

(v) For prisoners, date you gave notice of appeal to prison authorities N/A

b. PLEASE ATTACH ONE COPY OF EACH OF THE FOLLOWING:

1. The order from which you are appealing

2. The district court’s entry of judgment

3. The district court docket sheet

2. What are the facts of the case?

I was hired by the defendant (appellee/respondent), Squaw Valley Ski Corporation, (SVSC), as a ski coach and I worked for three days in December, 2001. When my

CASE NO. 03-15170 Page 2

employer asked me for my social security number, I said I did not use one, that I refused to apply for one, and that I therefore could not provide one, based on my religious beliefs. I cannot, in good conscience, participate in social security, since the system is based on fraud, and is a system of idolatry. I cannot voluntarily participate in fraud, nor can I participate in a system of idolatry by participating in social security. I informed the ski coaches who hired me of my religious beliefs, and I informed SVSC of the legal issues involved, and how they could easily make a reasonable accommodation for my beliefs under the law to comply with Title VII of the Civil Rights Act of 1964 which forbids religious discrimination in employment.

I sent several letters to SVSC by certified mail that clearly explained the law.

I also sent a letter to the Employment Development Department of California (EDD), to ask them about the California State reporting requirements for employers reporting about employees‘ social security numbers. I received a favorable response, in writing, in Feb. 2002, from the EDD which said,

Additionally, I asked the EDD two specific questions as follows:

1.  Does the EDD actually require and/or mandate that all employers in the State of

CASE NO. 03-15170 Page 3

California only employ people who have social security numbers?

2.  If an employer refuses to hire a person who does not have a Social Security Number, and the employer makes that decision based on a claim that the Social Security number is required for all employees in the State of California by the EDD, is that employer acting on what the EDD and/or what the law tells them to do, or is that employer acting on their own?

To each question, the written answer of the EDD was the following:

“The Employment Development does not set the hiring practices of private businesses.“

And I provided my employer, SVSC, with a copy of the EDD’s response to me.

Nevertheless, SVSC fired me and continued to deny me employment, based solely on my lawfully protected religious beliefs to not use a social security number, and refused to make a reasonable accommodation for my religious beliefs under Title VII of the Civil Rights Act of 1964 and 1991. Specifically, they refused to file an affidavit with the IRS as is required by various statutes and codes in the law which would show “reasonable cause” for why they could not obtain a social security number from me, to avoid the $50 fine.

Therefore, I filed a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC refused to act on my behalf, quoting Sutton v. Providence, (192 F.3d 826 (9^th Cir 1999), a decision of this court, the Ninth Circuit. Nevertheless, the CASE NO. 03-15170 Page 4

EEOC issued me a “right to sue” letter, so I filed suit myself in Federal District Court.

I also filed for “in forma pauperis” status, which was granted by the District court.

In response to my complaint, and upon granting “in forma pauperis” status, the District court should have instructed the U.S. Marshals to handle service of process on the defendants. But the defendants were never served or notified of my complaint to the District court. Instead, Judge Drozd issued a six page “findings and recommendations” to dismiss.

In response, I filed a list of objections, stating clearly why his cited cases did not apply to my case, and/or were inconsistent with the laws in question. Specifically, I noted that I’m not demanding that my employer obtain any non-existent waiver from the IRS, I’m demanding that my employer file the affidavit with the IRS, as the law tells them to do in the event they are unable to obtain a social security number from an employee after asking for one.

My case was dismissed by the Chief Judge, William Schubb, without further comment, or explanation, or reasons, regarding the objections I raised.

3. What did you ask the district court to do (for example, award damages, give injunctive relief, order your release from prison, etc.)?

CASE NO. 03-15170 Page 5

I asked for “in forma pauperis” status, which was granted. I asked for assistance of counsel, which was denied. I asked for a jury trial to determine punitive damages for willfulness as prescribed under the Civil Rights Act of 1991. I asked for reasonable attorney’s fees. I asked for back wages lost due to the discrimination. I asked for injunctive relief to get my job back.

4. State the claim or claims you raised at the district court.

The findings and recommendations of Judge Drozd alleged that I failed to state a claim.

The claim I raised was based on Title VII of the Civil Rights Acts of 1964 and 1991, and the two statues (quoted in question number 7.)

My claim is that my employer discriminated against me in employment based solely on my religious beliefs, and that my employer refused to make a reasonable accommodation for my religious beliefs. I also claim that my employer willfully and purposefully discriminated against me, knowingly violating the law, refusing to follow the clear and simple directions contained in the statutes for what to do in the event of not obtaining a social security number from an employee, (see question 7 for the statutes.)

5. What issues are you raising on appeal?

CASE NO. 03-15170 Page 6

They key issue is the wording of the two statues (quoted in question number 7, below) which were not even mentioned in the Sutton case, previously decided by this court, the Ninth Circuit.

In several of the cases cited by Judge Drozd, it was noted that it is unreasonable to expect that an employer would have to seek a waiver from the IRS. However, I agree, and I am not demanding that my employer seek any waiver.

I am merely demanding that my employer obey the laws, and follow the directions in the laws, and file the affidavit, as required by law, in the event that my employer asks me for a number and I don’t provide one, or as the law says, “…if after such request has been made, the payee does not furnish the payor with an identifying number…“. I assert that in order to provide a “reasonable accommodation,” all my employer needs to do is to file an affidavit with the IRS that shows that my employer’s failure to obtain a social security number from me was “due to reasonable cause and not willful neglect”, as the laws instruct.

The cause, or reason for my employer’s failure to obtain a number from me, is that I don’t use a social security number. The employer does not need to show why I don’t use one, they only need to show why they failed to obtain a number from me. If I don’t use one, my employer certainly cannot be expected to obtain one from me. The law acknowledges that condition and eventuality as a possibility and makes that explicitly clear in its

CASE NO. 03-15170 Page 7

wording, as it says, “if after such request has been made, the payee does not furnish the payor with an identifying number“, and the law goes on to describe what to do when that happens.

6. Did you present all these issues to the district court?

Yes/No If not, why?

Yes. I presented this issue in my “Objections to the findings and recommendations by Judge Drozd”, but this issue was simply ignored in the final ruling, which made no comment on any of the objections I raised, or laws I cited.

7. What law supports these issues on appeal? (You may, but need not, refer to cases and statutes.)

Treasury Regulation 26 CFR 301.6109-1(c):

"When the person filing the return statement, or other document does not know

the SSN of the other person, and has complied with the request provision of this paragraph, he shall sign an affidavit on the transmittal document forwarding such returns, statements, or other documents to the Internal Revenue Service so stating. A payor is required to request the identifying number of the payee. If after such request has been made, the payee does not furnish the payor with an identifying number, the penalty ($50.00) will not be assessed against the payor, if it is shown that such failure is due to reasonable cause and not willful neglect."

CASE NO. 03-15170 Page 8

See also Title VII of the Civil Rights Act of 1964. And the Civil Rights Act of 1991 which provides for additional penalties for “willfulness”.

8. Do you have any other cases pending in this court? If so, give the name and docket number of each case.

No.

9. Have you filed any previous cases which have been decided by this court? If so, give the name and docket number of each case.

No.

10. For prisoners, did you exhaust all administrative remedies for each claim prior to

filing your complaint in the district court?

N/A.

CASE NO. 03-15170 Page 9

STATEMENT TELLING THE COURT WHAT I WANT THE COURT TO DO WITH THIS APPEAL:

I want this court, the Ninth Circuit, to reverse the District court’s order that dismissed my case. I want this case to be remanded back to the District court so that the case can proceed in front of a jury to decide the issue of “willful and intentional religious discrimination” of my employer, Squaw Valley Ski Corp., according to the Civil Rights Act of 1991, which provides for up to $300,000 worth of punitive damages for such discrimination. I also want the district court to evaluate and rule on the rest of my original demands that are provided for under both Civil Rights Acts, such as back wages, reasonable attorney’s fees, and injunctive relief so that I can work as a ski coach again.

3-10-2003

________________ __________________________

DATE SIGNATURE (Jason Hommel)

12641 Anvil Road

Grass Valley, CA 95945

ADDRESS