Jason Hommel, pro se in forma pauperis

12641 Anvil Road

Grass Valley, CA 95945

(530) 274-3450

DATED: _____________________________

Regarding: INTENTIONAL EMPLOYMENT DISCRIMINATION AND WILLFUL FAILURE TO MAKE REASONABLE ACCOMMODATION FOR RELIGIOUS OBJECTION TO THE USE OF THE SOCIAL SECURITY NUMBER

I thank the court for allowing me to proceed pro se in forma pauperis.

In contrast to what Judge Drozd alleges, I did state a claim. I listed the time and date of the employment discrimination in my complaint. According to the EEOC, I have exhausted all administrative remedies. The laws primarily in question with regard to my complaint, 26 U.S.C. 6724 (a) and 26 CFR section 301.6109-1(c), can not be ignored based on the cases cited by Magistrate Judge Drozd. His recommendation for dismissal ignores 26 Code of Federal Regulations section 301.6109-1(c) that provides clarification. Evidently, Judge Drozd is well aware that religious discrimination of the type indicated in my complaint is taking place; but he has chosen to point the finger at other cases of religious discrimination taking place in order to ignore the call for justice in my complaint. Judge Drozd bases his findings and recommendations to dismiss on cases that do not apply to my case. In essence, the plaintiffs in his cited cases appeared to demand that their employers SEEK and OBTAIN a waiver from the IRS. As was ruled in those cases, such demands are an undue burden. I agree, and I make no such demands. I merely point out that my employer, Squaw Valley Ski Corporation (SVSC), under of 26 U.S.C. 6724 (a) and 26 CFR section 301.6109-1(c), is able to file a statement with the IRS if my employer chooses to avoid the risk of a $50 penalty. I do not demand that my employer ask the IRS anything or SEEK anything from the IRS. I do not demand that my employer needs to OBTAIN anything from the IRS. I expect that my employer would be protected from IRS penalties if they complied with the laws and showed that they did request a social security number from me. Therefore, none of the cases cited by Judge Drozd are persuasive and they are not useful here. Cases cited by Judge Drozd contain bad interpretations of 26 U.S.C. 6724 (a) and 26 CFR section 301.6109-1(c) both on the part of the other plaintiffs and occasionally also by the other judges.

It is neither my concern nor my responsibility to make sure that my employer chooses to follow the simple reporting instructions in the laws in order to avoid a $50 penalty. The mere fact that the laws exist is enough to prove that my employer does not have any legal requirement that might create an undue burden to accommodate my religious beliefs. If my employer, SVSC, wants to avoid a $50 penalty, they can easily do so because it is clearly explained in the laws I have cited that show how they can go about avoiding such a penalty. The provisions and instructions in the law that protect my employer also protect my rights to religious freedom because it allows my employer to provide reasonable accommodation. My employer's refusal to protect their rights cannot be construed as a reason to deny me my rights.

I object to Judge Drozd's restatement of my claim into something that I did not claim. Judge Drozd wrote on page 5, "Plaintiff's complaint is not saved by its allegation that defendants failed to seek a "reasonable cause waiver" under 26 U.S.C. Sec. 6724(a), which provides…" and he quotes the law. I do not allege that my employer failed to SEEK a "reasonable cause waiver". In contrast, I allege and complain that my employer could have accommodated my religious beliefs by SENDING a reasonable cause affidavit, or document, or statement to the IRS. This distinction shows that my case is different. The laws do not indicate that the IRS sends out waivers, or documents, in response to receiving a "reasonable cause affidavit". Rather, the laws are clear that the penalties will be, and must be, waived when the employer obeys the laws, and sends the "reasonable cause affidavit or statement" to the IRS.

In the other complaints, where it appears that the plaintiffs demanded that their employers seek waivers, those demands must surely be unreasonable requests (and are an undue burden) if the IRS has no authority to issue waivers or documents when it receives "reasonable cause documents". Nothing in the statutes suggests that the IRS has the authority to issue waivers, or that the employer needs to obtain a waiver. And, if the IRS has no authority to issue waivers or documents, then requesting that an employer seek a waiver document from the IRS is surely an unreasonable request. Furthermore, such a request would be impossible for an employer to comply with. To arrive at the conclusion that employers must seek and obtain waivers, the courts would have to insert such wording that does not appear in either statute: 26 U.S.C. 6724 (a) or 26 CFR section 301.6109-1(c). But I am not making the demand that my employer seek and obtain a waiver, and I never have, so Judge Drozd's cited cases do not apply to my case.

In my complaint, in my summary, on page 2, I clearly described and indicated that I did not expect my employer to seek a reasonable cause waiver or document, but rather, I expected that my employer send the "reasonable cause affidavit or document" to the IRS. In my complaint, I wrote that my employer refused to:

As proof that employers are only required to request, but not required to obtain, worker SSNs, see also the following laws in addition to the two already cited above: 26 CFR 31.3402(f)(2)-1, withholding regulations ("employer is required to request...but if the employee fails to furnish..."); 26 CFR 301.6724-1(e) Reasonable Cause; and Title 26 US Code section 3402(p)(3) titled, "Authority for other voluntary withholding". Employers are not required to obtain SSNs from employees that meet the federal definition of employees. Nor can employers be punished for failing to obtain such numbers. The IRS Publication 1281 "Backup Withholding On Missing and Incorrect TINs", although not law, also supports this, and helps to clarify the issue.

The first case Judge Drozd cites is Sutton, which was addressed in my complaint. Judge Drozd wrote, "the court in Sutton found the defendant could not be liable under Title VII because Immigration and Naturalization regulations as well as the Internal Revenue Code required employers to provide the social security numbers of their employer." (I assume he meant "employees" and not "employer" at the end of his sentence.) The Sutton case does not support that an employer cannot be liable under Title VII in my case. The case proves that Sutton's lawyer was incompetent. Sutton failed to rebut the erroneous statement: "Defendant is required by law to obtain Plaintiff's social security number." The Sutton case applies to someone who admitted by default (by not objecting) that an employer is required to obtain a SSN. In contrast to Sutton, my complaint addressed that issue. The existence of 26 U.S.C. 6724 (a) and 26 CFR section 301.6109-1(c) clearly allows an employer to employ a person who does not have or use a social security number (SSN). The laws explain the alternative reporting requirements in the event that the employer does not obtain a SSN from an employee. Those laws clearly indicate that an employer is required to ask for, but is not required to obtain, a SSN for all employees, which is in contrast to the ruling stated in Sutton. The language of 26 CFR section 301.6109-1(c) is plain on this point that the employer need not obtain a number. It states:

It would be contrary to the plain meaning of the statute to suggest that an employer is required to obtain a SSN from all employees, and so the Sutton case does not apply to my case. According to those two laws, an employer is required to report a SSN, or report why a SSN could not be obtained, to the IRS, to show that the employer was not being "willfully neglectful" of the duty to ask an employee for a SSN.

Next, regarding INS regulations, in consideration with Sutton and my employer's assertions to me. There are no INS regulations that require an employer to obtain a SSN from an employee. And there are no requirements from the INS that natural born citizens must have a SSN in order to prove that they are legally able to work in the United States. I have a California birth certificate that I provided to my employer. That alone proves that I'm legally allowed to work in the United States. I also provided my employer with a valid Driver's License. The INS form explicitly states that the employer cannot specify which forms of identification are acceptable, and the form states that a Birth Certificate and Driver's License are acceptable to establish work eligibility. The form also states that the employer has to accept what the employee provides, if what the employee provides fulfills the requirement of the form. My Birth Certificate and Driver's License fulfill the requirements. As for the I-9 form, 8 CFR 274a4 also shows that employers cannot be punished if the alien employee exercises his right to refuse to witness against himself.

Judge Drozd continued regarding Sutton, "Since accommodating the employee's religious beliefs would require the employer to violate federal or state law, the court held "that accommodation would cause 'undue hardship' as a matter of law." But my entire complaint was clearly written to show that accommodating an employee's religious belief to not use a SSN would NOT REQUIRE any employer to violate any Federal or California State law. If there is a law that would be violated, please let the defendant or the court actually site such a law, instead of citing a court case that similarly alleges that such a law exists without anyone ever actually quoting a law.

In my complaint, I provided a letter from the California EDD which stated that there are no state requirements in California which prohibit an employer from hiring an employee who does not have or use a SSN. As stated by the EDD in their letter to me, which was attached as exhibit H in my complaint:

In addition, no Federal law would be violated by the employer either, because of the existence of 26 U.S.C. 6724 (a), and 26 Code of Federal Regulations section 301.6109-1(c). Judge Drozd writes, "The undersigned is bound by the decision in Sutton." I object. Sutton simply does not apply to my case, since it does not even mention the laws: 26 U.S.C. 6724 (a), and 26 CFR section 301.6109-1(c), both of which plainly refute the court's findings in Sutton.

Next, Judge Drozd quotes three other cases where the plaintiffs and rulings seem to distort the meaning of the law as stated in 26 U.S.C. 6724 (a). However, all of these other cases ignore 26 CFR section 301.6109-1(c), which clarifies 26 U.S.C. 6724 (a). 26 CFR 301.6109-1(c) provides: ...

This makes it abundantly clear that an employer does not need to obtain or seek any documents, or waivers, from the IRS. Instead, the employer merely needs to send a "reasonable cause affidavit", or statement, or other documents, or to the IRS "so stating" that he "…does not know the SSN of the other person and has complied with the request provision". When an employer obeys the laws in 26 U.S.C. 6724 (a) and 26 CFR section 301.6109-1(c), and sends such a "reasonable cause statement" to the IRS, that will cause the penalty to be waived, regardless of what the IRS may later claim. Whether or not the IRS sends a document, or waiver, in reply is irrelevant to my complaint. And I certainly do not demand that my employer must seek out such a document or waiver, particularly not in the event that the IRS does not issue such documents, or waivers. The law is clear that the penalty will be waived, regardless of whether or not waivers or documents are issued by the IRS. The IRS must waive the penalty after receiving a "reasonable cause affidavit", because the law is clear, and says "No penalty shall be imposed" in 26 U.S.C. 6724 (a), and "the penalty ($50.00) will not be assessed" in 26 CFR 301.6109-1(c). There is nothing confusing about the language, "no penalty shall be imposed" and "the penalty will not be assessed". Both are extraordinarily clear that the penalty will be, and must be, waived if the employer obeys the instructions contained in the laws. And there is nothing in either law that indicates that the employer needs to receive any acknowledgement whatsoever (or waiver) from the IRS after having sent a "reasonable cause affidavit."

These laws also refute Sutton, where the court ruled that employers are required to "obtain" a SSN. The language of 26 CFR 301.6109-1(c) clearly states that an employer is only required to "request" a SSN, and the law tells the employer what to do, in clear, plain language, in the event that a SSN is not obtained. The employer needs to "show that such failure was due to reasonable cause and not willful neglect." The employer merely needs to show that they asked the employee for a number, which is an extremely reasonable request.

Next, I will discuss the first of three cases cited by Judge Drozd involving 26 U.S.C. 6724 (a), and I will show why those cases do not apply to my case. Judge Drozd quoted Seaworth v. Pearson, 203 F. 3d 1056, 1057 (8^th Cir. 2000) ("Requiring defendants to violate the Internal Revenue Code and subject themselves to potential penalties by not providing Seaworth's social security number on information returns results in undue hardship."), cert. Denied, 531 U.S. 895 (2000).

I will repeat, I am not demanding that my employer violate any Internal Revenue Code laws whatsoever. My complaint, and accommodating my religious belief, simply does not require my employer to violate any laws, and so my request is not an undue hardship. According to 26 U.S.C. 6724 (a). 26 CFR 301.6109-1(c), the IRS Code and law actually requires an employer to report either a SSN for an employee, or the reason why a SSN could not be obtained from an employee. The reason that 26 U.S.C. 6724 (a) requires an employer to file an affidavit is to show that the employer is not being "willfully neglectful" of their reporting requirements under the IRS Code. My employer has fired me in violation of Title VII, and also, my employer has chosen to violate both IRS codes, 26 U.S.C. 6724 (a) and 26 CFR section 301.6109-1(c), by not reporting anything at all to the IRS, as I have demanded, and as the law requires. I have demanded that they obey and follow these IRS codes, which is not an unreasonable request.

Judge Drozd continues, "Plaintiffs complaint is not saved by its allegation that defendants failed to seek a "reasonable cause waiver" under 26 U.S.C. 6724 (a), which provides:

No, I did not allege "that defendants failed to SEEK a "reasonable cause waiver". I do not allege that my employer needs to SEEK, or ask permission for, or search out, or find, or ask for, or make an inquiry for, a reasonable cause waiver FROM the IRS. In contrast, I allege that my employer needs to SEND a reasonable cause affidavit, or statement, or document, TO the IRS. The affidavit statement so specified in the law contains no request, no question, nothing indicating the seeking of permission, and is not something that even demands or requests or inquires for a reply from the IRS. This significant difference is well clarified in 26 CFR section 301.6109-1(c). My employer does not need to ask permission from the IRS to hire me. There is nothing in 26 U.S.C. 6724 (a) that indicates an employer needs to seek a waiver or document or ask permission from the IRS for anything. There is no need for an employer to seek anything from the IRS, and there is no indication in 26 U.S.C. 6724 (a) for such a procedure. In the other cases, the plaintiffs without social security numbers demanded that their employers seek a waiver from the IRS, which were clearly unreasonable demands, and were demanding something that the law does not provide for and does not say.

My employer simply needs to follow the law which requires the employer TO ASK me for a SSN, and report what happened when they asked me, whether they received a number or not. If my employer did not receive a number after asking me, then, under 26 U.S.C. 6724 (a), and 26 CFR section 301.6109-1(c), they are required to tell the IRS, and SEND a reasonable cause affidavit. Such a document or statement sent by my employer would show that they did not receive a SSN from me when they asked for one, thus proving that they are not showing "willful neglect" to do what the law requires, which is TO ASK me for a SSN.

Judge Drozd continues, "The complaint alleges that plaintiff's religious belief furnishes defendants with the requisite reasonable cause." No, my complaint did not allege that was the only reason, it might be one reason of many reasons. As I quoted above, the EDD admitted that there are many things that an employer can do to show reasonable cause when they wrote, "There are various things that an employer could provide to show that he made such a good faith attempt, including the fact that they have secured Social Security Account numbers for all their workers except one." Another reasonable cause would be that a person does not have a number. If a person does not have a number, they certainly cannot provide a number.

The key point in the wording of 26 U.S.C. 6724 (a) and 26 CFR 301.6109-1(c) is that the employer needs to show that they are not showing "willful neglect". Any cause that shows that the employer did not show "willful neglect" would be a reasonable cause. What would "willful neglect" be? Obviously that would be "not asking for a number," or perhaps not reporting anything to the IRS. Therefore, if the employer shows that they DID ASK an employee for a number, and they do report something to the IRS, then that would clearly show that they were not showing "willful neglect," of the requirement to report something to the IRS, and thus provide "reasonable cause."

The employer is not required by 26 U.S.C. 6724 (a) or 26 CFR 301.6109-1(c) to show why an employee does not have a number. Any person might not choose to apply for, or use, a SSN for thousands of different personal reasons that neither the courts nor the IRS has any justification or mandate for exploring, and the employer does not need to furnish any of those reasons to the IRS. The employer only needs to show that they are not being "willfully neglectful" of the legal requirements for an employer TO ASK an employee for a SSN.

Judge Drozd wrote that other courts have "expressly rejected the same contention in cases alleging religious discrimination based upon an employer's response to an employee's refusal to provide a social security number." But the contention in the other cases is not the same as mine. Judge Drozd quotes Seaworth, 203 F.3d at 1057 ("Even if a waiver could be obtained, we think that the expense and trouble incident to applying for it imposes a hardship that is more than de minimis, as a matter of law."). In principle, I agree. If I were to demand that my employer seek a waiver from the IRS, where the IRS has no ability or provision to issue waivers or documents, that demand would certainly be an undue burden. I understand that I cannot demand that my employer do what is impossible, and could not be asked to SEEK a waiver document that does not exist and for which there is no procedure, no law, and no application form.

The Judges in Seaworth seem to agree with my argument that it would be impossible to receive a waiver from the IRS. They state, "Even if a waiver could be obtained…" as if they recognize that the IRS could not fulfill such a request. They also acknowledge that such a request would be extraordinarily expensive and troublesome. I agree. I believe that if I were an employer, I could hire a thousand attorneys and I would never receive a mythical waiver from the IRS that the IRS has no ability or authority to issue. On the other hand, it takes no expense, and no assistance from any lawyers, to understand and follow the simple directions contained in the laws 26 U.S.C. 6724 (a) and 26 CFR 301.6109-1(c), and send an affidavit to the IRS.

So the ruling in Seaworth does not apply to my case, because Seaworth makes a demand that I do not. In Seaworth, the court re-stated the argument of the plaintiff: "Seaworth argues that defendants could seek a reasonable-cause waiver under I.R.C. Sec 6724(a)." Again, I am not making that argument, I argue that my employer needs to comply with the law in 26 U.S.C. 6724 (a) and 26 CFR 301.6109-1(c), and SEND an affidavit to the IRS.

An employer does not need to SEEK or OBTAIN a waiver, for there is no such waiver to be obtained. The law 26 U.S.C. 6724 (a) includes no information about obtaining a waiver. The law says that the employer simply needs to file an affidavit, or statement of fact showing cause to prove that the employer did not show "willful neglect." Sending an affidavit to the IRS showing "reasonable cause" shows that the penalty will be waived, and also that the employer would not be breaking any laws, but rather, complying with the provisions of the laws.

Getting back to the issue of expense. There is no expense and trouble involved in the process. My employer could send to the IRS a simple note stating, ("We, SVSC, hereby do swear and affirm that we asked Jason Hommel for a social security number and he certified that he didn't have one.") Such a statement or affidavit would have fulfilled the requirement of 26 U.S.C. 6724 (a) and 26 CFR 301.6109-1(c). Normally, an employer would obtain information on a W-4 form, and use the information on the W-4 on a quarterly statement sent to the IRS. Instead, in my situation, my employer simply needed to file an alternative statement, or document, saying that they asked me for a SSN and that I did not provide one. The employer does not even need to provide in the affidavit a reason why the employee does not have a SSN, such as mentioning a religious objection. Again, as my complaint clearly stated in reference to Exhibit C, the EEOC said, in Feb 2001: "All that was necessary was that it [the employer] request a social security number and so notify the Internal Revenue Service by affidavit, that it had done so." To help my employer in that process, I provided my employer with a form that clearly stated that it was an affidavit, under 26 U.S.C. 6724 (a), that certified that my employer asked me for a number, and that I did not have one. Merely sending a sheet of paper, that I had signed, to the IRS, is not an "undue burden", and costs nothing more than sending the W-4 form.

In conclusion to discussing Seaworth. The decision in Seaworth says, "Seaworth argues that defendants could seek a reasonable-cause waiver under I.R.C. Sec. 6724(a)". But this only proves that Seaworth, appellant pro se, was incompetent, and made unreasonable demands. In contrast, I'm not arguing that my employer needs to SEEK a reasonable cause waiver. I'm arguing that my employer needs to SEND a reasonable cause affidavit. Therefore, the ruling in Seaworth is simply not applicable to my case. Furthermore, the ruling is not based on what 26 U.S.C. 6724 (a) and 26 CFR 301.6109-1(c) actually say, and is contrary to what those laws actually say.

The second case cited by Judge Drozd was Baltgalvis v. Newport News Shipbilding, Inc., 1332 F. Supp. 2d 414, 420 (E.D. Va. 2001) (finding that $50 penalty defendant may face for non-compliance with the Internal Revenue Code and the burden of applying for a waiver each constitute more than a de minimis hardship). I agree that the burden of applying for a waiver that does not exist and for which the law makes no provision, would certainly be more than a de minimis hardship, it would be both unreasonable and impossible. But I made no such demand that my employer engage in such a waste of time. Again, there is no provision in 26 U.S.C. 6724 (a) for the necessity of receiving a waiver. The law does not mention that waivers, or documents, are ever issued. The law does not mention that an employer needs to obtain a waiver, or document from the IRS. In contrast, the employer simply needs to file an affidavit, and statement of fact to the IRS, in accordance with the law, and obey the law, comply with the law, as I demand, which is not unreasonable. So, Baltgalvis does not apply to my case.

The court, in Baltgalvis, also wrote that a "penalty defendant may face… constitute(s) more than a de minimis hardship" which I find absolutely preposterous! An employer faces a potential penalty from the IRS with every employee they hire. A potential penalty exists for NOT FILING a SSN for those employees who have them and want to use them to track their Social Security earnings, just as a potential penalty exists for NOT FILING the affidavit for those employees who do not have SSNs. In each case, an employer is required to file paperwork with the IRS. If hiring employees with SSNs does not constitute an "undue hardship" due to paperwork filing requirements for them, then neither could the paperwork involved in hiring employees without SSNs be an "undue hardship." In other words, complying with the law is nothing unusual, and nothing substantially different than what the employer does for all other employees.

Again, as in Seaworth, the judgment in Baltgalvis says that the plaintiff "maintains that NNS [her employer] could seek a reasonable-cause waiver under 26 U.S.C. Sec 6724(a). Again, this case does not apply, because I do not make that claim. I allege that my employer, under 26 U.S.C. 6724 (a) and 26 CFR 301.6109-1(c), must SEND the "reasonable cause" affidavit, or document, or statement, to the IRS, not SEEK one.

The third and last case cited by Judge Drozd regarding 26 U.S.C. 6724 (a) and 26 CFR 301.6109-1(c) was Equal Employment Opportunity Comm'n v. Allendale Nursing Ctr., 996 F. Supp. 712, 718 (W.D. Mich. 1998). (rejecting a plaintiff's "attempt [] to transform a section which allows an employer to likely avoid certain penalties if it takes certain steps into a requirement that the employer must take these steps in order to accommodate the employee who caused the penalty in the first place"). This ruling also does not apply to my case. Additionally, parts of the ruling are ridiculous to the extreme. First of all, the penalty is not caused by the employee who does not have a SSN. The penalty exists, and is in place to make sure the employer reports either a SSN, or that a SSN was not obtained after asking for one. The $50 penalty can ALSO be applied to an employer who employs people with SSNs, but fails to report the numbers. The penalty is "caused" when the employer fails to report. No employee can be held responsible if the employer fails to report either a SSN or the affidavit that the laws require. Therefore, the penalty is NOT "caused" by an employee who does not have a SSN. And thus, the contention that "the employee… caused the penalty in the first place," is not remotely consistent with what the laws actually say. The language of the laws is clear. The penalty is for the employer and exists to make sure the employer is not showing "willful neglect" in following the laws that require an employer TO ASK all employees for social security numbers. An employee cannot and does not cause an employer to "not ask". The penalty is not caused by the employee, just as employees who have SSNs do not cause penalties to apply to their employers who may be neglectful of reporting their SSNs. The penalty applies to an employer for not complying with the information reporting requirement to either report a SSN for the employee, or to report why a SSN was not obtained. An employee without a SSN does not cause their employer to "fail to ask". An employee without a SSN does not cause their employer to "fail to report an affidavit" as the law requires in 26 U.S.C. 6724 (a).

Secondly, 26 U.S.C. 6724 (a) is, indeed, a reporting and filing requirement that does, indeed, need to be followed by employers, which is in contrast to the opinion in EEOC v. Allendale Nursing Ctr., which opined, without justification, that it is not a requirement. There are penalties for intentionally disregarding the reporting requirements to either file a SSN or an affidavit stating that the employee has no SSN. The start of 26 U.S.C. 6721 begins by mentioning that information reporting requirements must be followed.

Note 26 U.S.C. 6721 (e), "Penalty in case of intentional disregard". This law shows that there is an additional penalty to be assessed against employers who refuse, and intentionally disregard to file the affidavit as required under section 26 U.S.C. 6724 (a).

Neither I, nor the plaintiff in Equal Employment Opportunity Comm'n v. Allendale Nursing Ctr., is the one who is "attempt[ing] [] to transform a section … into a requirement that the employer must take these steps in order to accommodate the employee…" It is the law itself that has made sections 26 U.S.C. 6724 (a) and 26 CFR 301.6109-1(c) a requirement by providing additional penalties "in case of intentional disregard", which I suppose would be worse than "willful neglect".

And "intentional disregard" for the law is exactly the claim I am making under the Civil Rights Act of 1991 that provides for punitive damages for willfulness and intentional discrimination. Thus, I have filed a bona fide claim and I am suing for $300,000, plus other costs, et al. So, my employer has not only shown intentional disregard for the reporting requirements in 26 U.S.C. 6724 (a), but also shown intentional disregard for Title VII.

Third, in EEOC v. Allendale, the plaintiff "claims that because the Tax Code provides a waiver provision for penalties, 26 U.S.C. Sec 6724, the Defendant was obligated to seek a waiver in order to accommodate Rhoads' belief." Again, I do not make this claim that my employer needs to SEEK a waiver, and so this case does not apply to my case.

The language of both laws 26 U.S.C. 6724 (a) and 26 CFR 301.6109-1(c) are very clear. In fact, 26 CFR 301.6109-1(c) does not even mention a waiver, or any other such document that any employer needs from the IRS as evidence of permission to hire someone without a SSN.

What is a waiver? According to www.m-w.com, Merriam-Webster Online: "waiv·er Date: 1628 1 : the act of intentionally relinquishing or abandoning a known right, claim, or privilege; also : the legal instrument evidencing such an act."

I am not demanding that my employer seek any legal documents or instruments from the IRS, and the laws do not say that the employer needs to obtain any document or waiver from the IRS. There is nothing in the wording of either law that indicates that an employer needs any such document from the IRS whatsoever. There is nothing in either law that indicates that the IRS actually issues such documents, or waivers. There should be no confusion over this issue. The law does not specify that a waiver is even issued. The word waiver is not even used in 26 CFR 301.6109-1(c). And 26 U.S.C. 6724 (a) only mentions "waiver" in the title. The laws are clear that the IRS will, and must, waive the $50 penalty if the employer submits the "reasonable cause affidavit or document or statement". But there is nothing in the laws that says an employer first needs to receive or obtain a waiver before going forward with hiring an employee. The laws are clear evidence that an employer can, indeed, hire someone who does not have a social security number (SSN), does not know the SSN of the employee, and does not receive a SSN from an employee after asking for one. And both laws provide clear and simple language for the employer to follow and obey when the employer is not able to obtain a SSN from an employee. It is not unreasonable, or an "undue burden" to ask an employer to obey and follow such instructions in the laws.

In sum, it appears as if the legal decisions cited by Judge Drozd appear to claim the following: That it is an undue burden for employers to have to comply with the reporting requirements of the tax law. Clearly, such rulings are flawed! For if complying with IRS reporting requirements is an "undue burden," then employers would now have several precedents to use to avoid complying with any and all tax law reporting requirements. Such rulings, if accurate and could be relied upon, would destroy the entire foundation of the tax system of the United States.

Judge Drozd writes, "Because plaintiff can prove no set of facts in support of the sole federal claim that would entitle him to relief, his complaint must be dismissed." I object! I have provided allegations of religious discrimination which are not in dispute, and I have provided the laws under which my claim is based.

Because Judge Drozd did not cite any law that requires an employer to actually obtain a SSN from all employees, his recommendation for dismissal must be overruled. Because Judge Drozd did not cite a law that requires employers to only hire employees who have SSNs, his recommendation for dismissal must be overruled. Because Judge Drozd did not provide any legal or rational justification for the mysterious and oddly construed legal decisions related to 26 U.S.C. 6724 (a), his recommendation for dismissal must be overruled. Because Judge Drozd did not show that 26 U.S.C. 6724 (a) requires an employer to obtain a waiver from the IRS (which is wording that the law does not contain), as his cited cases allege, his recommendation for dismissal must be overruled. Because Judge Drozd ignored 26 CFR section 301.6109-1(c), which provides clarification and clear instructions on the same topic as 26 U.S.C. 6724 (a), then the rulings that Judge Drozd cited do not apply to my case. And finally, because I did state a claim which is based on more than just 26 U.S.C. 6724 (a), but also 26 CFR section 301.6109-1(c), which Judge Drozd ignored in his findings and recommendations, then Judge Drozd's findings and recommendations to dismiss must be overruled.

Finally, regarding my application for appointment of counsel. The primary reason this was denied appears to be Judge Drozd's finding and recommendation that my complaint fails to state a claim, that my claim does not have merit. However, as my "Objections to Judge's Findings and Recommendations" shows, for all the reasons set forth above, my complaint certainly does state a claim.

I do not ask for assistance of counsel out of fear that I am unable to make or present my case or present my arguments. I am not asking for representation. I ask for assistance of counsel primarily to help the court, so as not to waste the court's time, and to help me with procedure. If I do not have this assistance, I may be a burden for the court to have to deal with, as I would likely unnecessarily waste the valuable time of the court and clerks as I would likely need to ask the court to clarify definitions and procedures for me. I believe it is in the best interests of the court to provide me with assistance of counsel. Therefore, I ask that Judge Drozd's order number "2. Plaintiff's application for appointment of counsel is denied", be overruled.

I ask that my case be allowed to proceed with no further additional court delays. My employer, Squaw Valley Ski Corp., deserves to be notified that this case is now open and pending. It is unfair to my employer that there has been a court delay in excess of 4 months, or about 130 days between July 11^th when I filed my complaint, and November 21^st, the date of the court's response. It has now been almost a year since the date of the employment discrimination action that began in December 2001 and continued through February 2001. According to Title VII, the employer should have been served within 10 days of the initial court filing, and within 180 plus 10, or 190 days of when the employment discrimination practice occurred.

ENFORCEMENT PROVISIONS

In conclusion, I have stated a cause of action. My complaint does not ask my employer to SEEK a waiver, or document, or OBTAIN anything from the IRS, and my complaint did not ask or require my employer to violate any tax laws to make a reasonable accommodation for my religious belief. I'm asking that my employer obey the laws, and make reasonable accommodation for my religious belief by sending the "reasonable cause affidavit" as specified in 26 U.S.C. 6724 (a), and 26 CFR section 301.6109-1(c). I have clearly distinguished my case as different from the other cases cited by Judge Drozd, and I have clearly shown why the other cases do not apply in this case. Therefore, I ask that the finding and recommendation of Judge Drozd to dismiss my complaint be overruled. I ask that my case proceed immediately, and that U.S. Marshals be directed to initiate service of process on SVSC, in accord with my status as "in forma pauperis."

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Jason Hommel, Plaintiff pro se in forma pauperis