Petition for Writ of Certiorari — Michael B. Ellis, et al., Petitioners v. Amy Berman Jackson, et al.
Supreme Court briefOct 12, 2021
Ask Donna
What actually matters in this document.
Text
s
No. 21-
dPI
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.