Petition for Writ of Certiorari — Michael B. Ellis, et al., Petitioners v. Amy Berman Jackson, et al.

Supreme Court briefOct 12, 2021

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No. 21-

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filed

OCT 1 2 2021

IN THE

SyPREMEFCTOURTL,^K

Supreme Court of the United States

October Term 2021

Michael B. Ellis and Robert A. McNeil

Petitioners,

On Petition for a Writ of Certiorari

to the United States Circuit Court of Appeals

for the D.C. Circuit

Appealing COA Causes 20-5033 & 20-5034:

Ellis & McNeil v. Amy Berman Jackson, et al,

Pursuant to

Supreme Court Rules 13.3, 10 & F.R.C.P. 60(b)(6)

PETITION FOR A WRIT OF CERTIORARI

Michael B. Ellis

In propria persona

5052 NECR 2020

Rice, Texas 75155

(903) 326-6263

Robert A. McNeil

In propria persona

729 Grapevine Hwy #148

Hurst, Texas 76054

(713) 806-5199

October 18,2021

TWO QUESTIONS PRESENTED FOR REVIEW

Question 1:

Do courts of appeal nationwide exhibit a pattern and

practice of refusing to adjudicate EVERY issue

presented by the Class of disrespected, unrepresented

litigants filing appeals arising from the underlying

institutionalized IRS record falsification program, and

from the open support thereof by involved U.S. district

judges?

Question 2:

Did the Circuit Court of Appeals fail to carry its de

novo burden to prove, in support of Judge Kelly’s

holding, that Congress’ enactment of the AntiInjunction Act stripped courts of power to review the

institutionalized falsification of IRS records concerning

targeted Americans?

i

PARTIES TO THE PROCEEDING

Michael B. Ellis & Robert A. McNeil

Petitioners In Propria Persona

The United States Court of AAppeals for the

District of Columbia Circuit

1

Respondent

ii

TABLE OF AUTHORITIES

Cases

Crumpacker v. Ciraolo-Klepper, 17-5054,

D.C. Circuit...........................................

9

DeOrio v. Ciraolo-Klepper, 17-5057,

D.C. Circuit.................................

9

DePolo v. Ciraolo-Klepper, 16-5308,

D.C. Circuit.................................

9

Devereaux v. Abbey, 263 F.3d 1070

(9th Cir. 2001)...... ......................

FN 14

Dwaileebe v. Martineau, 17-5058,

D.C. Circuit..............................

9

Elkins v. United States,

364 U. S. 206, 364 U. S. 222 (1960)

FN 18

Ellis v. Jackson, et al, 20-5033,

D.C. Circuit

1,2, 9, 12, 13, 22, FN 24

Ellis v. Comm’r., 15-5035,

D.C. Circuit.................

9, 11, FN 12, FN 22

Ford v. USA, 18-17217,

9th Circuit................

9, 10

Hazel-Atlas Glass Co v. Hartford-Empire Co.,

322 U.S. 772..................................................

16

Herring v. United States,

129, S.Ct. 695 (2009),(Ginsburg, J dissenting)... 15

V

Herbert v. National Academy of Sciences, 974 f. 2d

192,

(D.C. Cir. 1992), citing Hohri u. United States,

782 F.2d 227 (D.C.Cir. 1986)

FN 20

Howe v. USA, 21-35125,

9th Circuit..............................

9, 11, FN 25

Howe v. The Hon. David C. Nye, 21-70662,

9th Circuit.................................................

9, 11

In Re: Ellis and McNeil Pre-Filing Injunction,

18-mc-00011, U.S. District Court for D.C...

FN 3

In Re: Ellis and McNeil Pre-Filing Injunction,

21-5132, D.C. Circuit

FN 3

In Re: Long-Distance Telephone Service Federal

Excise Tax Refund Litigation, 12-5380,

D.C. Circuit (2014)

FN 12

FN 23

Kurz v. US., 19-310

Kurz v. US., 19-2985,

8th Circuit.................................................

9

McGarvin v. Ryan O. McMonagle, 17-5055,

D.C. Circuit...............................................

9

McNeil v. Comm’r, 16-5233,

D.C. Circuit....................

9

Olmstead v. United States,

277 U.S. 438..................

14, FN 10, FN 13, FN 16

On Lee v. United States, 343 U. S. 747,

343 U. S. 758-759 (1952)

(Frankfurter, J., dissenting)............

vi

FN 18

Podgorny v. Ciraolo-Klepper, 17-5056,

D.C. Circuit.....................................

9

Safe Air for Everyone v. Meyer,

373 F. 3d 1035, 9th Circuit, 2004

FN 25

Stanley v. Lynch, et al, 20-5034,

D.C. Circuit

1, 2, 9, 12, 22, FN 24

United States v. Beers,

189 F.3d 1297, 1304 (10th Cir.1999)

FN 15

United States v. Jennings,

960 F.2d 1488, 1490 (9th Cir. 1992)

FN 15

USA v. Ebenezer K. Howe IV, 19-421

District Court of Idaho

FN 3, FN 5, FN 7, FN 8, FN 24

USA v Ford, 17-00187

Eastern District of California

9

USA v. Gregory Darst, 13-cr-181

Middle District of Florida.....

FN 3, FN 5

USA v, Gregory Darst, 21-1292

Middle District of Florida....

FN 3, FN 5

£/BA v, Gregory Darst, 21-12485

Eleventh Circuit....................

FN 3

U.S. v. Throckmorton, 98U.S. 61,1878

FN 1

US. v. Torrance, 18-1631

FN 23

Whitlock v. Brueggemann, 682 F.3d 567, 585

(7th Cir. 2012)..........................................

FN 14

vii

Statutes

28 U.S.C. §2255

FN 24

26 U.S.C. §6020(b)

6, FN 6

Anti-Injunction Act

i, 3, 13, 17, FN 24

Evarts/Judiciary Act

iii, 17

Rules

FRCP 12

16

FRCP 12(b)(1)

13, FN 25

FRCP 12(b)(6)

13

FRCP 60(b)(6)

1, 3, 21, 22, FN 2

SCR 10(a)

1, 3, 21, 22

SCR 13.3

1, 3,21

Publications

Internal Revenue Manual §5.1.11.6.7.....

..... FN 6

Money magazine, April, 1990

FN 4

Revenue Officer’s Training Manual,

(Unit 1, Page 23-2).......................

FN 6

viii

TABLE OF CONTENTS

TWO QUESTIONS PRESENTED FOR REVIEW., i

PARTIES TO THE PROCEEDING

11

TABLE OF CONTENTS

111

TABLE OF AUTHORITIES

v

JURISDICTION

1

STATEMENT OF THE CASE

1

Introduction

3

ARGUMENT

8

THREE Reasons for Granting Petition

17

1. The pattern and practice of involved COA

judges violates the Evarts/Judiciary Acts and

the rights of litigants to meaningful access to

courts.

17

2. The practice is producing utter chaos in

district courts.

17

3. Congress can pass no law restricting the

power of courts to review agency programs to

falsify records..

17

Relief Requested

21

iii

APPENDIX

APPENDIX A- U.S. District Court

Memorandum Opinion

January 13, 2020..........

a

APPENDIX B- U.S. Court of Appeals

Judgment

June 1, 2021..................

n

APPENDIX C - U.S. Court of Appeals

Order Denying Petition for

Panel Rehearing

August 27, 2021...................... q

APPENDIX D - U.S. Court of Appeals

Order Denying Petition for

En Banc Rehearing

August 27, 2021...................... s

iv

JURISDICTION

Under Supreme Court Rule 10, when “a United States

court of appeals has so far departed from the accepted

and usual course of judicial proceedings, or sanctioned

such departure by a lower court”, it would “call for an

exercise of this Court’s supervisory power’’. Hence,

when a petition such as this relates extensive, explicit

allegations of misconduct occurring in the Courts

below, the Supreme Court can invoke its supervisory

jurisdiction.

On August 27, 2021, the Circuit issued orders denying

our petitions for panel rehearing and for rehearing en

banc. (See 20-5033/20-5034, Dkt. Nos. #1911839 &

#1911842) This Court thus also has jurisdiction

pursuant to SC Rule 13.3.

Further, since the denial of appellate relief was issued

on June 1, 2021 by the D.C. Circuit COA using the

wrong standard of review in order to avoid

adjudicating EVERY issue raised on appeal, (all “legal”

issues) and since “Fraud vitiates everything,

judgments as well as contracts,”1 the “judgments”

issued by the Circuit can never be “final.” They remain

forever subject to Rule 60(b)(6) motions, and can be

adjudicated in this Court.2

STATEMENT OF THE CASE

As their penultimate goal, Petitioners seek to

terminate the pattern and practice of courts of

appeal nationwide destroying the due process rights

of the Class of disrespected, unrepresented litigants

1 United States v. Throckmorton, 98 U.S. 61, 1878.

2 Litigants suffering misconduct during the course of an appeal

by officers of a COA cannot be compelled to raise a Rule 60(b)(6)

motion in that forum. It would never be adjudicated.

1

complaining of the underlying IRS record

falsification program, and the open support thereof

by involved district court judges.3

For yet another example of that pattern, in

consolidated appeals 20-5033 and 20-5034, Ellis &

McNeil v. Jackson, Cooper, Srinivasan, et ah, in the

United States Court of Appeals for the District of

Columbia Circuit, that Court has once again used the

wrong standard of review, without identifying it, to

avoid adjudicating EVERY issue Petitioners raised.

The pattern practiced by courts of appeal nationwide,

is also destroying access by victims of the

institutionalized IRS record falsification scheme to

this Court, since by avoiding full discussion of

EVERY legal issue raised, the involved judges

cynically leave “nothing to appeal”. Question 1. is

thus of obvious “imperative public importance”

justifying “deviation from normal appellate practice”.

Restated, the U.S. Court of Appeals for the District of

Columbia Circuit is “open for business”, accepting

filing fees, issuing briefing schedules, etc. But

disrespected,

unrepresented litigants

alleging

explicit, non-conclusory, well-pled allegations of

3 Please see (1.) the recently filed Petition of Mr. Greg. A. Darst,

21-5785, docketed on September 27, 2021, originating from his

filing of a Coram Nobis Motion in the Middle District of Florida,

(13-cr-181 and 21-cv-1292), and arising through the Eleventh

Circuit (21-12485), and see (2.) the newly filed Petition of Mr.

Ebenezer Howe, originating in an ongoing forfeiture in the U.S.

District Court of Idaho (2:19-cv-421) and arising through the

Ninth Circuit, (9th Appeal: 21-35682), and see (3.) Petitioners’

recently filed request for writ originating from D.C.D.C. (18-mc00011) arising through the U.S. Circuit Court of Appeals for the

D.C. Circuit, (D.C. Circ. Appeal: 21-5132).

2

fraud involving officers of the Court at the district

level, have no access to “adequate, effective,

meaningful” appellate relief.

Their statutory right has been reduced to a mere

parody. Attorneys who swore an oath to protect the

due process rights of their fellow Americans are

gutting them. Petitioners further contend that the

refusal of COA judges to identify the standard of

review used, in order to avoid adjudicating EVERY

issue raised on appeal, is a tacit, screaming

concession the involved judicial officers know their

denial of appellate relief is improper / fraudulent.

Hence, this Court is the ONLY forum that can

adjudicate the antinomian pattern and practice of

courts of appeal nationwide, pursuant to S.C. Rules

13.3, 10(a) and FRCP 60(b)(6).

In Question 2., we seek determination whether the

Circuit failed to carry its de novo burden to prove, as

Judge Kelly held, that the Anti-Injunction Act

stripped courts of power to review the institutionalized

falsification of IRS records concerning targeted

Americans.

Introduction

As sketched below, (Pgs. 5-7), IRS’ surreptitious

program to falsify digital and paper records concerning

those labeled “non-filers”, is an ongoing assault on the

due process rights of those who have noted and rely on

3

multiple public statements by various IRS

Commissioners that “The income tax is voluntary’.4

Sadly, during litigation to enjoin the institutionalized

falsification of federal (IRS) records concerning victims,

the due process rights of disrespected, unrepresented

Class litigants have again been gutted, this time by

involved U.S. district court judges.

To add insult, after the filing of numerous fully-paid

appeals seeking meaningful appellate relief from the

underlying IRS record falsification program and from

the open support thereof by involved district judges, a

conscience-shocking pattern and practice has emerged:

No issue raised in ANY appeal by the

litigants has been adjudicated.

Beginning in 2015 during the leadership of Mr.

Merrick Garland, then Chief Judge of the U.S. Circuit

Court of Appeals for the District of Columbia, with the

active assistance of Mr. P. Srininvasan, (now-Chief

Judge), courts of appeal started issuing denials of

appellate relief in Class cases while refusing to

adjudicate EVERY issue raised, including EVERY

legal question. The “orders” of denial used the wrong

standard of review without identifying it, (clear error

4 Here are just two of many examples: "We don't want to lose

voluntary compliance... We don't want to lose this gem of

voluntary compliance" Fred Goldberg, IRS Commissioner,

Money magazine, April, 1990. Goldberg confirmed the 1953

SWORN testimony of Dwight E. Avis, head of the Alcohol and

Tobacco Tax Division of the Bureau of the Internal Revenue

before the House Ways and Means Committee of the EightyThird Congress: "Let me point this out now: Your income tax is

100 percent voluntary tax, and your liquor tax is 100 percent

enforced tax. Now, the situation is as different as night and

day"

4

rather than de novo) and were issued over the names

of judges who LIKELY had no involvement in the

appeals, as shown below.

Appellants contend that the pattern of issuing

appellate “orders” that adjudicate no legal issue raised

on appeal, is a failure of the judges to carry their de

novo burden to substantiate/prove correct outlandish

claims of district judges (such as Judge Kelly in this

appeal). It is also a tacit admission the involved

appellate judges cannot refute their victims’ legal

arguments, so the proponents of the scheme resort to

simply defrauding their courts

and their

unrepresented victims.

Since no case involving fraud on the Court, BY THE

COURT SYSTEM, has ever been adjudicated, this is a

case of first impression, as well as of national

significance.

Backstory: IRS’ Record Falsification Program

The following FIVE facts are incontrovertible,

confirmed in public records and in multiple sworn

Declarations by Co-Petitioner/Forensic Accountant,

Mr. Robert A. McNeil, which are incorporated fully

by reference herein as support for this Petition.5

a. Multiple IRS Leaders/Commissioners have

conceded that the income tax is “voluntary”. [See

Footnote 4 for two of many examples.]

5 Please see the invariable systemic record falsification of IRS

records shown in the Declarations of Petitioner/Forensic

Accountant McNeil concerning two American victims of the IRS

program, 1.) U.S.D.C. for Idaho, U.S. v. Howe 19-421, Doc. 61-1,

2.) U.S. v. Darst, 13-cr-181 (Doc. 119-1) or 21-cv-1292, (Doc. 2-1).

The systematic fraud never varies, hence is institutionalized.

5

b. IRS has repeatedly conceded that the core statute

supposedly authorizing preparation of substitute

tax returns, 26 U.S.C. §6020(b), does NOT apply

to income tax,6

c. Protections written into IRS’ core software

(“IMF”) precisely support the twin concessions in

a. and b. above, i.e., IRS’ published procedural

manuals reveal that the IMF software will

“unseat’Vreject any attempt to enter alleged

deficiency amounts supposedly owed by a “nonfiler”, unless the IMF software for that given year

is first made to reflect IRS’ pretended receipt of a

return from the targeted victim.7

d. So, to justify attacking “non-filers” via non­

judicial liens/levies or via criminal prosecutions

and civil litigation, IRS first INVARIABLY and

repeatedly falsifies its core, controlling annual

6 The authority to perforin substitutes for return is discussed in

the Internal Revenue Manual §5.1.11.6.7, which shows that

such authority is limited to matters involving “employment,

excise and partnership taxes”, and does not include the

income tax. [Link here: http://www.irs.gov/irm/nart5/irm 05-01011r-cont01.html. scroll down to 5.1.11.6.7 “IRC 6020(b)

Authority”.] The Privacy Impact Assessment IRS issues

concerning 6020(b) precisely confirms that limitation. [Link

here: http://www.irg.g6v/pub/irs-pia/aut6 6020b-pia.pdf] In the

Revenue Officer’s Training Manual. (Unit 1, Page 23-2) the

Commissioner concedes: “The IRM restricts the broad

delegation shown in figure 23-2 (6020(b))... to employment,

excise and partnership tax returns because of constitutional

issues”, Emphasis added.

7 See, for example, the sworn Decl. of Robert A. McNeil, [See

2:19-cv-421-CWD, Doc. 61-1, Declaration of Forensic

Accountant Robert A. McNeil.] presenting IRS’ published

manuals detailing precisely how IRS employees bypass the

security protections written into IRS’ all-controlling Individual

Master File software.

6

digital records (known as the Individual Master

File) concerning victims for each targeted year to

falsely reflect

1. IRS’ receipt from those IRS labels “non­

filers” of 1040A returns supposedly filed

for each year on claimed dates, and to

falsely reflect

2. The preparation by IRS of substitute tax

returns for all targeted years on yet other

claimed dates, despite the fact no

substitute income tax returns are ever

signed/prepared by IRS concerning “non­

filer” victims on any date, let alone those

shown in IRS’ falsified digital records, and

paper “certifications”/ “transcripts” derived

therefrom.

The existence of the invariable sequence of actions

committed to falsify the annual records of IRS’

controlling software concerning those IRS labels

“non-filers”8 provides incontrovertible support for the

Commissioners’ multiple public claims the income

tax is voluntary.9

As a necessary corollary to those facts, since

Congress could never impose a duty upon Americans

requiring a Government agency to enforce by

8 The sworn Declaration of forensic accountant Robert McNeil

included in U.S. Dist Ct for the Idaho Dist, cause 2:19-cv-421 as

Doc. 61-1 is proof the falsification of IRS records is not an

isolated incident. In every case involving targeted “non-filers”,

it is IRS’ invariable, institutionalized mode of attack.

9 It is not Petitioners who claim the income tax is voluntary. It

is the top administrators of the Internal Revenue Service. [See

Footnote 4 above, for two examples.]

7

committing crime (falsifying federal records),10 socalled “non-filers” owe nothing to the Treasury.

ARGUMENT

Question 1.

Do courts of appeal exhibit a pattern and

practice of refusing to adjudicate EVERY issue

presented by the Class of disrespected,

unrepresented litigants filing appeals arising

from the underlying institutionalized IRS

record falsification program, and from the open

support thereof by involved U.S. district

judges?

Notice Requested

Petitioners respectfully request Justices of this Court

judicially notice, pursuant to FRE 210, the following

public record facts, all confirmed by resort to records

easily accessible to the Justices.

A. Notice Orders Dismissing FOURTEEN

Appeals without adjudicating ANY issue

raised

Petitioners request the Justices notice the dismissals

of FOURTEEN consecutive fully paid appeals by

victims of the underlying IRS record falsification

program, and of the open support thereof by involved

district judges. Notice is also requested of the fact

that not once did the involved circuit judicial officers

10 In Olmstead v. United States, 277 U.S. 438, in Justice

Brandeis5 incomparable dissent, he explained; “When these

unlawful acts were committed, they were crimes only of the

officers individually. The Government was innocent, in legal

contemplation, for no federal official is authorized to commit a

crime on its behalf.

8

identify the standard of review used. Nor was any

issue raised in any appeal adjudicated. The orders

are incorporated fully herein by reference:

■USCA, D.C. Circ. 15-5035 Ellis v. Comm’r,

■USCA, D.C. Circ. 16-5233 McNeil v. Comm’r,

■USCA, D.C. Circ. 16-5308 DePolo v. Ciraolo,

■USCA, D.C. Circ. 17-5054 Crumpacker v. Ciraolo,

■USCA, D.C. Circ. 17-5055 McGarvin v. McMonagle,

■USCA, D.C. Circ. 17-5056 Podgorny v. Ciraolo,

■USCA, D.C. Circ. 17-5057 DeOrio v. Ciraolo,

■USCA, D.C. Circ. 17-5058 Dwaileebe v. Martineau,

■USCA, 9th Circuit 18-17217 Ford o. US,

■USCA, 8th Circuit 19-2985 Kurz v. US,

■USCA, 9th Circuit 21-35125 Howe v. US,

■USCA, 9th Circuit 21-70662 Howe v* David C. Nye,

■USCA, D.C. Circ. 20-5033 Ellis v. Jackson, et ah

■USCA, D.C. Circ. 20-5034, Stanley v. Lynch, et al.

B. Notice Proceedings in U.S. v. Ford. 17-00187

Petitioners request the Justices notice that during

discovery in the forfeiture case U.S. v. Ford, 1700187, unrepresented 11 Defendant Melba Ford

secured from the IRS incontrovertible evidence

proving that no assessment was prepared/signed by a

duly authorized representative of the Secretary on any

date concerning her and the year in question; (2003),

Instead, IRS produced irrefutable evidence in

discovery that IRS’ Sun Microsystems computer

automatically created every relevant document

concerning her alleged liability. Thus, none were

signed by a duly authorized delegate of the Secretary

11 Her motions for appointment of counsel, both at the district

level and on appeal, were viciously denied without explanation.

9

of the Treasury. [See Ford sworn Brief on Appeal, 1817217, Dkt. Entry 17, pg. 24]

Moreover, IRS provided evidence in discovery proving

that no substitute income tax return was prepared on

any date shown in IRS’ falsified digital and paper

documents concerning Ms. Ford.

The Justices are requested to also notice that in

Ford, The Hon. District Judge Dale Drozd entered

into the record his “finding” that “a duly authorized

delegate of the Secretary” “prepared an assessment”

concerning Ford and 2003 on “Feb. 26th, 2007” (See

Drozd holding, 17-00187, Doc. 70, Order Granting

Summary Judgment. Pg. 5, line 9, et seq.), when no

evidence supported his finding, [See Record, All], and

in derogation of evidence provided by IRS

controverting his “finding’Vfabrication.

C. Notice Proceedings in Ninth Circuit Appeal.

Ford v. U.S.. 18-17217

As requested above, Petitioners also request the

Justices notice Ms. Ford’s appeal to the Ninth

Circuit, (18-17217), which was denied while ignoring

EVERY issue she raised, i.e., the Panel ignored the

extensive, incontrovertible evidence supplied by the

IRS and presented by Ms. Ford proving the Service’s

Sun Microsystems computer auto-generated all

documents supporting the Government’s case.

D. Notice the outcome of recent Ninth Circuit

appeals by Mr. Ebenezer K. Howe IV (2135125 and 21-70662)

Petitioners request the Justices notice that the Ninth

Circuit denied two appeals filed by Mr. Howe, (cited

above), while offering incoherent, un-intelligible

10

explanations in what appear to be deliberate

violations of his due process right to meaningful

access to courts.

E. NOTICE the pattern and practice was

initiated under the leadership of then-D.C.

COA Chief Judge Merrick Garland.

The Justices are requested to notice that the first

Class appeal dismissed without identifying the

standard of review, in order to avoid adjudicating

EVERY legal issue raised, occurred in 2015 in the

United States Circuit Court of Appeals for the

District of Columbia Circuit, under the leadership of

Mr. Merrick Garland, then Chief Judge.

Specifically, now-Chief Judge Srinivasan either

himself wrote, or directed the Clerk to produce the

“order” denying relief in appeal 15-5035, Ellis v.

Commissioner. Mr. Srinivasan is supposedly a tax

expert, but he used the wrong standard of review,

refused to adjudicate EVERY issue raised on appeal,

and issued the “order” over the names of Circuit

judges who likely had NOTHING to do with it.12

Thus, under the leadership of Mr. Garland, Mr.

Srinivasan appears to have been personally involved

in the pattern and practice of defrauding his Court

and the Class of disrespected, unrepresented

12 In denying appellate relief in 15-5035, Mr. Srinivasan

claimed The Hon. Janice Rogers Brown as a panel member. Ms.

Brown, an outstanding jurist and excellent author, excoriated

IRS misconduct in other appeals, [See her dissent in In Re:

Long-Distance Telephone Service Federal Excise Tax Refund

Litigation, USCA 12-5380(2014).] It is VERY likely she had

NOTHING to do with the “order” issued over her name,

especially since the standard of review was wrong. She has

since resigned from the bench.

11

litigants, victimized first by the IRS record

falsification program, then by involved district

judges.

F. Notice is requested of “orders” dismissing D.C.

COA cases 20-5033 and 20-5034 without

addressing any issue raised.

The Justices are requested to notice the

reprehensible pattern of refusing to identify the

applied standard of review, and refusing to

adjudicate EVERY issued raised on appeal, occurred

once again in the recent dismissal orders in

consolidated appeals under consideration in this

Petition, D.C. COA causes 20-5033 and 20-5034, Ellis

& McNeil v. Jackson, Cooper, Srinivasan, et al.

Question 1. Summary

Public record evidence is irrefutable. In FOURTEEN

consecutive appeals, courts of appeal nationwide

have refused to adjudicate EVERY issue raised on

appeal by the Class of disrespected, unrepresented

litigants suffering from the underlying IRS record

falsification program, and from the open support

thereof by involved district court judges.

Moreover, since that pattern does not occur in cases

involving represented litigants, the practice

demonstrates a vicious class-based animus and un

precedented assault on the rights of unrepresented

Americans.

12

Question 2.

Did the Circuit Court of Appeals fail to carry its

de novo burden to prove, as Judge Kelly held,

that the Anti-Injunction Act stripped courts of

power

to

review

the

institutionalized

falsification of IRS records concerning targeted

Americans?

As the foremost and core issue raised by Petitioners

in a fully paid appeal from The Hon. District Judge

Timothy Kelly’s dismissal, pursuant to Rule 12(b)(1)

and 12(b)(6), of their suits to enjoin IRS from

falsifying the digital and paper records concerning

them, your Petitioners contended that Mr. Kelly

erred by holding:

“Even if it is true that IRS employees merely

make SFRs appear to exist,” (when they don’t),

“Plaintiffs still seek to enjoin the process by

which the (false) appearance is created and

through which tax deficiencies are then

assessed and collected” [See 20-5033, Doc.

1874990, Appellants’ Brief on Appeal, pg. 11,

First Sent., citing Kelly Mem., Doc 26, Pg. 6,

Fnl. Sent.]

By so doing, Petitioners contended on appeal that Mr.

Kelly had violated every applicable precedent

concerning government misconduct in the history of

United States jurisprudence, including:

a. Justice Brandeis’ celebrated

Olmstead v. United States;18

holding

in

13 ‘The Eighteenth Amendment has not, in terms, empowered

Congress to authorize anyone to violate the criminal laws. And

Congress has never purported to do so. The terms of

appointment of federal prohibition agents do not purport to

13

b. Unanimous nation-wide precedent that

government agents cannot fabricate evidence

to “frame” victims, (e.g. fabricating the

appearance IRS received 1040A returns from

non-filers, that alleged deficiencies are owed,

etc.), in order to justify initiating criminal and

civil prosecutions;14

c- The universally-agreed precept that ALL

prosecutors are imputed by law to know that

“exculpatory information” exists in the records

of the Agency prosecuting the case, and are

REQUIRED to present evidence of falsified

IRS records to grand juries and income tax

Defendants in “willful failure to file” cases;15

confer upon them authority to violate any criminal law. Their

superior officer, the Secretary of the Treasury, has not

instructed them to commit crime on behalf of the United States.

It may be assumed that the Attorney General of the United

States did not give any such instruction.” Olmstead v. United

States, 277 U.S. 438, Brandeis, J., dissent.

14 “All courts that have directly confronted the question agree

that the deliberate manufacture of false evidence contravenes

the Due Process Clause”. Whitlock u. Brueggemann, 682 F.3d

567, 585 (7th Cir. 2012), cert, denied 133 S.Ct. 981 (2013).

Judicial agreement on the subject includes ten circuits, and

none departs from the rule, stated succinctly: “Anyone who acts

on behalf of the government should know that a person has a

constitutional right not to be ‘framed.’” Devereaux v. Abbey, 263

F.3d 1070 (9th Cir. 2001).

15 See United States v. Beers, 189 F.3d 1297, 1304 (10th

Cir.1999) “[information possessed by other branches of the

government, including investigating officers (of investigative

agencies), is typically imputed to the prosecutors of the case’ for

Brady purposes; United States v. Jennings, 960 F.2d 1488, 1490

(9th Cir. 1992) ‘[t]his personal responsibility cannot be evaded

by claiming lack of control over the files ... of other executive

branch agencies’. Thus, a defendant’s due process right to a fair

14

d. The Clean Hands Doctrine, which forbids

courts from granting ANY relief to litigants

committing fraud16

e. The “government integrity rationale” per

Herring v. United States, 129, S.Ct. 695

(2009),(Ginsburg, J dissenting), 17

f. The “imperative of judicial integrity”,18 and

trial is violated when any Government actor, agent or agency

withholds material evidence favorable to the defendant,

irrespective of personal knowledge of a prosecuting attorney.”

16 ‘The governing principle has long been settled. It is that a

court will not redress a wrong when he who invokes its aid has

unclean hands. The maxim of unclean hands comes from courts

of equity. But the principle prevails also in courts of law. Its

common application is in civil actions between private parties.

Where the Government is the actor, the reasons for applying it

are even more persuasive.” Ibid. 484. [ Emphasis added.] “[T]he

objection that the plaintiff comes with unclean hands will be

taken by the court itself. It will be taken despite the wish to the

contrary of all the parties to the litigation. The court protects

itself.” Olmstead v. United States, 277 U.S. 438, unrivaled

dissent, Brandeis, J, emphasis added.

17 Judge Kelly posited that Congress can pass a law, the AIA,

that shields criminal acts of an agency from judicial review,

(such as fabricating by fraud the appearance of liabilities,

where none exist by law, etc.). Congress has no such power.

18 “This rejection of ‘the imperative of judicial integrity,’ Elkins

v. United States, 364 U. S. 206. 364 U. S. 222 (1960), openly

invites ‘[t]he conviction that all government is staffed by . . .

hypocrites!, a conviction] easy to instill and difficult to erase."

Paulsen, The Exclusionary Rule and Misconduct bv the Police.

52 J.Crim.L.C. & P.S. 255, 258 (1961). When judges appear

to become ‘accomplices in the willful disobedience of a

Constitution they are sworn to uphold,’ Elkins v. United

States, supra at 364 U. S. 223. we imperil the very

foundation of our people's trust in their Government on

which our democracy rests.” See On Lee v. United

15

g. The Supreme Court’s holding in Hazel-Atlas

Glass Co v. Hartford-Empire Co., 322 U.S. 772

concerning fraud on courts by attorneys.19

But instead of determining de novo whether Judge

Kelly’s legal conclusion that the Anti-Injunction Act

stripped courts of power to review the

institutionalized falsification of federal records

concerning IRS-targeted Americans, (de novo review

of legal issues is required by Circuit precedent),20 the

Circuit denied appellate relief with these twenty

words:

“Appellants have not shown that the district

court erred in concluding that their claims are

barred by the Anti-Injunction Act.”

We had no such burden.

Petitioners contend that since Judge Kelly did not

resolve any factual issues, the applicable standard of

review was de novo, not clear error, as inferred by the

Circuit. Thus the burden on appeal was not on the

appellants, but on the judges... who failed.

States, 343 U. S. 747. 343 U. S. 758-759 (1952) (Frankfurter, J.,

dissenting). [Emphasis added.]

19 “Every element of the fraud here disclosed demands the

exercise of the historic power of equity to set aside fraudulently

begotten judgments. This is not simply a case of a judgment

obtained with the aid of a witness who, on the basis of afterdiscovered evidence, is believed possibly to have been guilty of

perjury. Here, even if we consider nothing but Hartford's sworn

admissions, we find a deliberately planned and carefully

executed scheme to defraud,” (by attorneys/officers of

the court), “not only the Patent Office but the Circuit

Court of Appeals.” [Emphasis added.]

20 See Herbert v. National Academy of Sciences, 974 f. 2d 192,

(D.C. Cir. 1992), citing Hohri v. United States, 782 F.2d 227

(D.C.Cir. 1986).

16

THREE Reasons for Granting Petition

These three reasons justify granting this Petition:

Reason 1. The pattern and practice of involved COA

judges violates the Evarts/Judiciary Acts and the

rights of litigants to meaningful access to courts.

Reason 2. The practice is producing utter chaos in

district courts.

Reason 3. Congress can pass no law restricting the

power of courts to review agency programs to falsify

records.

We will review the reasons in the order shown.

Reason 1. The pattern and practice of involved COA

judges violates the Evarts/Judiciary Acts and the

rights of litigants to meaningful access to courts.

The independence and impartiality of the judiciary is

under open assault. In 1891, Congress enacted the

Evarts Act, establishing courts of appeal to ensure

litigants received justice, if they feel aggrieved by

actions of district judges. Even today, the courts of

appeal claim their existence ensures the

independence and impartiality of the judiciary.21

A stated goal of the creation of appellate courts was

to make the judiciary self-policing. It hasn’t.

21 See website of U.S. Courts, Courts of Appeal:

https://www.uscourts.gov/educational-resources/educationalactivities/us-courts-appeals-and-their-impact-vourlife#:~:text=The%20appeals%2Qprocess%20

17

The pattern and practice of courts of appeal

nationwide, as proven by review of the orders

incorporated herein and cited above, matches the

antinomian practice established in 2015 by the U.S.

Court of Appeals for the D.C. Circuit under the aegis

of Mr. Merrick Garland, with the direct involvement

of now-Chief Judge “Sri” Srinivasan.22

That pattern and practice of courts of appeal is an

overt effort to destroy the reason d’etre for creating

appellate courts. It is also eviscerating the due

process rights of the Class of unrepresented victims

complaining of the underlying IRS record

falsification program, and of the open support thereof

by involved district judges.

Importantly, such pattern and practice does NOT

occur in cases involving represented litigants. Hence

the practice by Circuit judges Merrick Garland and

Padmanabhan Srinivasan is an invidious, classbased assault on the due process rights of

unrepresented Americans. That practice must be

stopped.

Reason 2. Pattern and Practice of COAs is causing

Unimaginable Chaos in District Courts.

The pattern and practice is empowering district

judges to violate the due process rights of litigants in

nearly unthinkable manners. Because district judges

know unrepresented litigants have no access to

22 As noted above, Mr. Srinivasan denied appellate relief in 155035 by causing to be issued an ‘order’ using the wrong

standard of review, which addressed no issue raised on appeal,

and which listed as signatories two Judges who likely had

nothing to do with his ‘order’ (such as the talented Hon. Janice

Rogers Brown, she of exquisite integrity and unexcelled writing

skill!).

18

meaningful appellate relief, the judges are writing

and speaking gibberish,23 fabricating facts,24 and

23 Three examples prove the point. In a Ninth Circuit case, the

Hon. Judge Brennan held: “Lastly, respondent argument that

purported falsified his tax records is unavailing.” [See U.S. v.

Torrance, 18-1631, Doc. 54, pg. 2, 2nd f, errors in orig.]

For a second example, during a hearing on October 8, 2020 in

U.S. v. Torrance [Case 18-1631], a shocked, tongue-tied

Magistrate (Peterson) blurted:

“The issue you are - your points are about the answer

to the question. Whether they are - the IRS is indeed

correct that you owe money. Whether they are indeed

correct whether they have - the specific amounts at

issue, and I don’t know if any of those are - are

correct. You know, who knows? I don’t know. That

information certainly isn’t before me. You are alleging

a large conspiracy falsification issue.” [See Hearing

Transcript, Doc. 69, Pg. 22, Line 13, et seq.]

For a third example, please see Eighth Circuit case Kurz v. U.S.,

19-310. In dismissing Mr. John Kurz’ case wherein he alleged

IRS’ institutionalized falsification of records damaged him, the

late Hon. District Judge Shaw fabricated: “Mr. Kurz’s Rule 60

motion alleges that the government... perpetrated a fraud upon

the Court by reducing Mr. Kurz to a ‘standard tax-defier’.” [19310, Doc. 61, Pg. 4, 2nd Full f, 1st sent.] Kurz filed no such

gibberish. In income tax cases against unrepresented litigants,

district judges are becoming aware their victims have only

physical access to appellate courts, but NOT to adequate,

effective, MEANINGFUL appellate relief.

24 Three examples will prove the point. First, the Honorable

Judges Jackson and Cooper colluded to fabricate a false version

of relief sought by Class victims, to bring their cases within the

prohibitions of the Anti-Injunction Act, in order to obstruct the

jurisdiction of their courts over the underlying IRS record

falsification program damaging their victims. [See Briefs in

COA causes 20-5033 and 5034.]

Second, in the ongoing litigation concerning a Coram Nobis

Motion filed by Mr. Greg Darst in the Middle District of Florida,

The Honorable Mary S. Scriven justified her “termination” of

his motion and conversion of it into a §2255 petition by claiming

as justification “internal administrative procedures of the

Middle District of Florida”. No such procedures exist. §2255

19

violating every applicable precedent,

assistance of involved Circuit judges,25

with

the

Reason 3. Congress can pass no law stripping the

judiciary of power to review record falsification

programs of Government agencies.

Every American knows Congress has no power to

authorize the commission of crime to enforce laws,

nor to strip courts of power to review crimes

systematically committed against Americans.

Judge Kelly and involved Circuit judges failed to

prove that Congress stripped courts of power to

review the commission of felonies by an agency of the

Government, when Congress enacted the AntiInjunction Act. This Court dare not support such

petitions can only be filed by those in custody, which ended for

Mr. Darst nearly seven years ago.

Third, in an ongoing forfeiture case in the U.S. District Court

for the District of Idaho, 19-421, U.S. v. Howe, The Hon.

Magistrate Candy Dale fabricated a ‘finding’, then entered it

into the record, that IRS supposedly prepared assessments

concerning Mr. Howe on September 12, 2016, despite the fact

that no evidence such assessments exist appears in the record

before her bench, (See Record, All). The lawlessness engendered

by the pattern and practice of COAs nationwide is

unimaginable.

25 See for example, Mr. Howe’s appeal [9th Cir., 21-35125] of The

Hon. Judge David C. Nye’s repeated, point-blank refusals of

Howe’s motions seeking to compel production, pursuant to

FRCP Rule 12(b)(1), of the summary record of assessments

supposedly prepared by IRS on September 12, 2016. In that

appeal, the Ninth Circuit allowed Judge Nye to ignore and

violate Ninth Circuit precedent authorizing Rule 12(b)(1)

factual attacks on false complaint allegations per Safe Air for

Everyone v. Meyer, 373 F. 3d 1035 - Court of Appeals, 9th

Circuit 2004.

20

blatant injustice as that advanced by the twenty

words of the Court of Appeals in denying appellate

relief to your Petitioners.

Finally, the Court should grant this petition because

the use by the panel below of the clear error standard,

in deliberate violation of binding Circuit precedent

mandating de novo review, is a screaming, tacit

admission by all involved lawers that they are

defrauding their courts and Petitioners.

Final Note

By the open speaking of the truth, we would

commend ourselves to the consciences of lawyers

with integrity. Let us make common cause to restore

the separation of powers, the independence of the

judiciary and the Rule of Law. It is long overdue.

Relief Requested

Petitioners request the Court use its unquestioned

power pursuant to SC Rules 13.3, 10 and FRCP Rule

60(b)(6) to:

1. Confirm the pattern and practice of courts of

appeal nationwide refusing to adjudicate

EVERY issue raised by the Class of

disrespected

unrepresented

litigants

complaining of the IRS record falsification

program, and the open support thereof by

involved district judges; to

2. Confirm that pattern began in 2015 in the

United States Circuit Court of Appeals for the

District of Columbia Circuit under the

leadership of Mr. Merrick Garland, with direct

21

involvement of Mr. Padmanabhan Srinivasan;

to

3. Terminate that pattern and practice pursuant

to the Court’s unquestioned supervisory power

described in SCR 10(a), and pursuant to Rule

60(b)(6); to

4. Hold that the involved judges in D.C. Circuit

appeals 20-5033 and 20-5034 failed to carry

their de novo burden to prove Congress’

enactment of the Anti-Injunction Act shielded

from judicial review the commission of

criminal acts by IRS employees/officers; and to

5. remand those appeals for actual adjudication,

pursuant to binding precedent of the Circuit

Court of Appeals for the D.C. Circuit.

Finally, Petitioners request the Court order any

further relief it finds just and equitable, under these

most difficult and absolutely extraordinary

circumstances.26

Respectfully submitted,

Robert A. McNeil

In propria persona

729 Grapevine Hwy

#148

Hurst, Texas 76054

(713) 806-5199

Michael B. Ellis

f In propria persona

&052 NECR 2020

Rice, Texas 75155

(903) 326-6263

26 Petitioners, unlearned all, don’t pretend to know the correct

procedure for presenting their cases. They will amend their

filings under the direction of the Court, if deemed necessary.

22

Verification/Declaration

Comes now Michael B. Ellis and Robert A. McNeil,

each declaring under penalty of perjury, pursuant to

28 U.S.C. §1746, that “All the facts stated in the

foregoing

“PETITION

FOR

WRIT

OF

CERTIORARI

” are absolutely true and correct

to the very best of my knowledge and belief, that I

have personal knowledge of almost every fact alleged,

that they are material, admissible and that I am

competent to testify thereto. Hence, every fact stated

above, and every inference derived therefrom, is

absolutely true and correct, and that I am presenting

this Declaration under penalty of perjury.

So HELP ME GOD.

Executed on October 18, 2021

Michael B. Ellis

Robert A. McNeil

23

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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