U.S. DISTRICT COURT

FOR

THE DISTRICT OF COLUMBIA

CASE #18-mc-00011

In re McNEIL and ELLIS PRE-FILING INJUNCTION

Assigned to Judge Christopher R. Cooper

Date Filed: 01/24/2018

On January 24, 2018, U.S. District Court Judge Christopher R. Cooper ordered the Clerk’s office to open a miscellaneous case (mc) to adjudicate issues related to his April 19, 2017 pre-filing injunction issued against Robert McNeil and Michael Ellis in Case 16-1053 Crumpacker, et al v. Ciraolo-Klepper, et al.

The true purpose of this case was to determine if McNeil and Ellis should be held in contempt of Court for allegedly violating Judge Cooper’s pre-filing injunction.

Before I provide the details of Case 18-mc-00011, however, here is the back story, which involves several cases:

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On August 15, 2016, in Case #16-cv-1053 Crumpacker v. Ciraolo-Klepper, et al, DoJ attorney Ryan O. McMonagle filed the government’s Answer and Counterclaim [Doc 04] to the Original Complaint [Doc 01]. At that time the case was assigned to U.S. District Court Judge Tanya S. Chutkan in Washington, D.C.

On page 7 of [Doc 04], Mr. McMonagle included a “Counterclaim for Injunctive Relief Against Mark Crumpacker, Michael B. Ellis, and Robert A. McNeil”, which reads as follows:

The United States of America, as the proper defendant and counterclaim plaintiff, brings this counterclaim to:

Permanently enjoin Mark Crumpacker, Michael B. Ellis, and Robert McNeil from filing any action in the United States District Court for the District of Columbia without obtaining prior leave from the court, and from assisting in filing, or inciting others to file, any further frivolous actions in this District without obtaining prior leave from the court, which:

Assert or purport to assert a claim under the United States Constitution or Administrative Procedure Act (5 U.S.C. § 701, et seq.) (the “APA”) challenging actions taken by the Internal Revenue Service in preparing to assess and assessing income tax liabilities pursuant to 26 U.S.C. § 6020; and/or
Assert or purport to assert a claim under the United States Constitution or the APA challenging actions taken by the Department of Justice to defend against the suits described above and/or collect income tax liabilities.

On September 2, 2016, in Case 16-1768 Podgorny, et al v. Ciraolo-Klepper, et al, notoriously corrupt Judge Amy Berman Jackson issued an Order to Show Cause [02] why Plaintiff Podgorny’s case should not be dismissed for lack of subject matter jurisdiction. Judge Jackson asserted that Podgorny’s claims were barred by the Anti-Injunction Act, 26 U.S.C. §7421.

On September 22, 2016, in Case 16-1768 Podgorny, et al v. Ciraolo-Klepper, et al, Plaintiff Podgorny filed her Motion to Recuse Judge Amy Berman Jackson [04]. This motion to recuse was filed because, in her Order to Show Cause, Judge Jackson cited Case 14-471 Ellis v. Commissioner of IRS, as precedent for dismissal. But, Judge Jackson was the judge in that case and she created that precedent by falsifying Ellis’ claims so as to cause them to fall within the ambit of the Anti-Injunction Act (AIA), thus, justifying dismissal.

Then, instead of responding to the Motion to Recuse, on, or about, September 27, 2016, Judge Jackson, along with Judge Ellen S. Huvelle and Judge Christopher R. Cooper, participated in an extra-judicial meeting to reassign Case 16-1768 Podgorny, et al v. Ciraolo-Klepper, et al to Judge Cooper’s docket.

Shortly thereafter, on October 21, 2016, Crumpacker, Dwaileebe, Morris, McGarvin, and Podgorny were all assigned to Judge Christopher R. Cooper, per his Consolidation and Case Management Order [Doc 18]. Ostensibly, the cases were consolidated onto one docket for the following reasons:

If multiple civil actions before the Court “involve a common question of law or fact,” Federal Rule of Civil Procedure 42(a) permits the Court, on a motion by a party or one of its own, to consolidate the actions or “issue any other orders to avoid unnecessary cost or delay.”
Given the similarities between the five complaints before the Court, the Court finds that consolidation of the cases for purposes of docketing and resolving pre-trial motions is appropriate to promote judicial efficiency.

Then, on December 31, 2016, in what Plaintiffs dubbed the “New Years Eve Massacre”, Judge Cooper issued an Opinion and Order dismissing Crumpacker, Dwaileebe, Morris, McGarvin, Podgorny and DeOrio for lack of subject matter jurisdiction (AIA), citing, as precedent, the falsified claims created by Judge Jackson in Ellis.

On February 28, 2017, DoJ attorney Ryan O. McMonagle filed United States’ Motion for Permanent Injunction and United States’ Memorandum of Law in Support of Motion for Permanent Injunction stating,

(1) An injunction is necessary and appropriate under the Court’s inherent authority to prevent the filing of further actions by the counterclaim defendants without prior leave of court, because (i) the actions filed by the counterclaim defendants to date are numerous, duplicative, and frivolous; and (ii) the counterclaim defendants are using their actions to harass IRS employees, attorneys for the Department of Justice, and Judicial Officers;

(2) The United States is entitled to an injunction as a matter of law under 26 U.S.C. § 7402(a), because the counterclaim defendants’ filing of numerous frivolous lawsuits against the IRS, the DOJ, and its employees, interfere with the enforcement of the internal revenue laws.

In response, on March 13, 2017. McNeil and Ellis filed Counterclaim Defendants’ Opposition to Motion for Sanctions.

Then, Mr. McMonagle, on March 21, 2017, filed United States’ Reply in Support of Its Motion for Permanent Injunction.

On March 28, 2017, McNeil and Ellis filed Counterclaim Defendants’ Response to U.S. Reply in Support of Motion for Permanent Injunction.

But, on April 14, 2017, Judge Cooper DENIED leave for Counterclaim Defendants to file their March 28, 2017 Response to U.S. Reply in Support of Motion for Permanent Injunction saying “sur-replies not permitted. See Local Rules except in circumstances not present here.”

Then, to complete the Government’s actions against McNeil and Ellis, on April 19, 2017, Judge Cooper issued his Memorandum Opinion and Order of Permanent Injunction, claiming that litigants’ action are frivolous and harassing.

The Injunction reads as follows:

It is hereby ORDERED that:

(1) Counterclaim defendants Michael B. Ellis, and Robert A. McNeil be permanently enjoined from:

Filing, or assisting in the filing of, any civil action in any United States District Court, without first obtaining leave of that court, asserting, or purporting to assert a claim under the United States Constitution or the Administrative Procedure Act challenging actions taken by the Internal Revenue Service in preparing to assess and assessing income tax liabilities pursuant to 26 U.S.C. § 6020;
Filing, or assisting in the filing of, any civil action in any United States District Court, without first obtaining leave of that court, asserting or purporting to assert a claim under the United States Constitution or the Administrative Procedure Act challenging actions taken by the Department of Justice to defend against the suits referenced in paragraph 1(a) and/or suits to collect income tax liabilities;
Filing, or assisting in the filing of, any civil action in any United States District Court, without first obtaining leave of that court, asserting or purporting to assert claims against judicial officers, whether in their official or personal capacities, challenging the merit, the substance, and/or the process of those judicial officers’ decisions with respect to the Internal Revenue Service’s program for preparing to assess and assessing income tax liabilities pursuant to 26 U.S.C. § 6020(b);

(2) In order to seek prior leave of court to file an action referenced in paragraph 1, the counterclaim defendants shall, before filing any complaint or other initiating document, file with the court a document titled “Application Pursuant to Court Order Seeking Leave to File,” that: (i) certifies that the claims presented are new claims never before raised and disposed of on the merits on or jurisdictional grounds by any court; (ii) describes the allegations of the complaint; and (iii) contains a certification under penalty of contempt that the allegations of the complaint are true; and (iv) attaches a copy of this injunction. The counterclaim defendants shall not be permitted to file said action unless and until such application is granted.

(3) Counterclaim Defendant Robert A. McNeil shall post a copy of this amended injunction on his website, http://ram-v-irs.com.

(4) The United States may engage in post-judgment discovery to monitor compliance with the injunction.

(5) The Court shall retain jurisdiction over the counterclaim defendants and this action for the purpose of implementing and enforcing this injunction and any additional orders necessary and appropriate to the public interest.

(6) The United States may provide actual notice of the injunction entered in this action pursuant to Rule 65(d)(2) by sending a true and correct copy thereof to the counterclaim defendants by registered or certified mail, return receipt requested, or by other private courier, such as Federal Express, to the address for respondents reflected on the Court’s docket sheet for this matter and by filing a certificate of service that certifies the United States’ compliance with this provision.

On May 22, 2017, in response to the injunction, Counterclaim Defendants filed (and, Judge Cooper Granted leave to file) their Rule 59 Motion to Alter or Vacate Sanctions. [See December 13, 2017 Counterclaim Defendants’ Motion to Correct the Record Regarding Receipt by Court of Rule 59 Motion on May 15, 2017]

Then, on June 2, 2017, DoJ attorney McMonagle filed United States’ Memorandum in Opposition to Counterclaim Defendants’ Motion to Alter or Vacate Judgment.

Continuing his legal onslaught against McNeil and Ellis, on September 18, 2017, DoJ attorney McMonagle filed United States’ Motion for Order to Show Cause Why Counterclaim Defendants Should Not Be Held in Contempt and United States’ Memorandum of Law in Support of Motion for Order to Show Cause Why Counterclaim Defendants Should Not Be Held in Contempt. This Motion arose because Mr. McMonagle claimed that McNeil and Ellis filed case 17-1720 McNeil, et al v. Harvey, et al on August 21, 2017 without first obtaining leave of Court to do so, and thereby, violated Judge Cooper’s April 19, 2017 injunction. But, 17-1720 was written in such a way that it fell outside the restrictive language of the injunction and, therefore, leave to file was not required.

On September 28, 2017 McNeil and Ellis filed their Opposition to Motion for Show Cause & Motion to Notice IRS Suspension of “ASFR” Record Falsification Program.

And, on October 3, 2017, McNeil and Ellis filed their Motion to Recuse the Hon. Chris Cooper & to Notice Suspension by TIGTA of IRS’ “ASFR” Record Falsification Program.

DoJ attorney McMonagle, on October 11, 2017, filed USA Reply to Ellis-McNeil's Opposition to Motion To Show Cause Why Counterclaim Defendants Should Not Be Held In Contempt.

On that same date, October 11, 2017, Mr. McMonagle also filed United States’ Opposition To Counterclaim Defendants Motion For Recusal.

On December 13, 2017, McNeil and Ellis filed Counterclaim Defendants’ Motion to Correct the Record Regarding Receipt by Court of Rule 59 Motion on May 15, 2017. This Motion was necessary because it was discovered that the Clerk had entered the Rule 59 Motion into the record on May 22, 2017, which was more than 28 days after the entry of Judge Cooper’s Order of Injunction on April 19, 2017. This error caused the Rule 59 Motion to be “untimely filed” and ineffective to toll the time within which McNeil and Ellis could file a notice of appeal for the injunction order, thereby, obstructing the due administration of justice. Fortunately, McNeil obtained a U.S. Postal Service confirmation that the Motion had been delivered to the District Court “at 11:33am on May 15, 2017” and provided that evidence in his Declaration supporting this “Motion to Correct the Record….”.

On December 22, 2017, DoJ attorney McMonagle, keeping up his relentless attack on McNeil and Ellis, filed United States’ Second Motion for Order to Show Cause Why Counterclaim Defendants Should Not Be Held in Contempt and United States’ Memorandum of Law in Support of Second Motion for Order to Show Cause Why Counterclaim Defendants Should Not Be Held in Contempt. This Motion arose because Mr. McMonagle claimed that McNeil and Ellis filed case 17-2602 McNeil, et al v. Brown, et al on November 29, 2017 without first obtaining leave of Court to do so, and thereby, violated Judge Cooper’s April 19, 2017 injunction. But, as with 17-1720, case 17-2602 was written in such a way that it fell outside the restrictive language of the injunction and, therefore, leave to file was not required.

Despite their well-pled arguments why they should not be held in contempt, Judge Cooper, on January 3, 2018, Granted DoJ’s “Second Motion for Order to Show Cause….. “ and issued his Order to Show Cause, which read:

ORDERED that counterclaim defendants Robert A. McNeil and Michael B. Ellis shall appear before the Honorable Christopher R. Cooper, at the above-referenced court located at 333 Constitution Avenue, N.W., Washington, DC 20001 on March 1, 2018 at 10:00 AM to show cause why they should not be held in contempt for failing to obey the order of permanent injunction entered against them by this Court on April 19, 2017.

Then, on January 8, 2018 (2 1/2 months after it was mailed to the Court on October 16, 2017), Judge Cooper GRANTED McNeil and Ellis leave to file Counterclaim Defendants’ Reply to Jessie K. Liu “Opposition to Motion to Recuse”. [Note: Leave to file was not required nor requested by McNeil/Ellis.]

On January 9, 2018 (2 1/2 months after it was mailed to the Court on October 16, 2017), Judge Cooper retroactively deemed that Counterclaim Defendants’ Response to Jessie K. Liu’s “Reply in Support of Motion to Show Cause” was filed on October 20, 2017.

On January 24, 2018, Judge Cooper issued two Minute Orders:

Denying [8] Rule 59(e) Motion to Alter or Vacate the Court’s April 19, 2017 Memorandum Opinion and Order granting a Permanent Injunction, and
ORDER granting Motion to Correct the Record. The Court has confirmed with the Clerk's office that the Rule 59 Motion to Alter or Vacate Sanctions was received on May 15, 2017.

Also on January 24, 2018, Judge Cooper issued an Order DENYING Counterclaim Defendants’ [56] Motion to Recuse the Hon. Chris Cooper & to Notice Suspension by TIGTA of IRS’ “ASFR” Record Falsification Program, which was filed three months earlier on October 3, 2017.

This marks the end of the back story and the beginning of the more recent filings.

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On January 31, 2018, Ellis and McNeil filed [22] Plaintiffs/Counterclaim Defendants’ Opposition to Government's Second Motion to Sanction Plaintiffs/Counterclaim Defendants, and Plaintiffs/Counterclaim Defendants’ Motion for Costs.

Then, on February 12, 2018, McNeil and Ellis filed Respondents’ MOTION TO NOTICE SETTING OF HEARING in U.S. v. FORD, E.D. Cal. District Cause No. 1:17-CV-00187-EPG To Decide “DEFENDANT’S MOTION TO DISMISS WITH PREJUDICE & FOR ORDER TO SHOW CAUSE WHY THE GOV’T. SHOULD NOT BE SANCTONED for CONCEALING EVIDENCE”. This filing is significant because on February 7, 2018, the Court in U.S. v. Ford set for hearing on March 16, 2018 Defendant Ford’s Motion to Dismiss and to Sanction the Government for concealing exculpatory evidence during the course of the DoJ’s attempt to seize property belonging to her. By issuing that Order, Magistrate Judge Erica Grosjean has undercut the theory upon which The Hon. Judge Cooper issued his pre-filing injunction on April 19, 2017. That is, Mr. Cooper enjoined/sanctioned Respondents because they supposedly have “no good faith or legal basis for continuing to promote this duplicative litigation...”, since multiple actions filed by Respondents, or with their assistance, “were dismissed as barred by the Anti-Injunction Act”, and that their cases were accordingly “meritless...vexatious, harassing” and supposedly “imposing an unwarranted burden on the orderly and expeditious administration of justice”. Mr. Cooper failed to state, however, that no judge, including him, ever ruled on the substantive ACTUAL merits of Class cases, and that no judge in D.C. gave victims opportunity to compel IRS production of the substitute income tax returns IRS’ falsified records show it prepared on claimed dates. Judge Erica Grosjean has just done so. In short, the attorneys involved in this case are requested to NOTICE that Magistrate Grosjean is giving Ms. Ford the opportunity to prove what Mr. Cooper obstructed: that IRS FAILS TO PREPARE substitute income tax returns on any date shown in its falsified records concerning targeted, so-called “non-filers”, and that IRS does not treat “SFR packages” as returns at all.

Ellis and McNeil filed, on February 13, 2018, Respondents’ MOTION TO DISSOLVE INJUNCTION, to DENY 2nd MOTION FOR SANCTIONS, and For COSTS to Litigate the Frivolous Motion. In this Motion, Respondents write:

“The pre-filing injunction against Respondents issued by the Court on April 19, 2017 is now being revealed as the product of a long-standing collusion between the Hon. Christopher Reid Cooper and The Hon. Amy Berman Jackson, wherein they sought to

1.) prevent adjudication of all Class cases filed in D.C. federal courts on their actual merits, to

2.) prevent victims of the IRS from securing assistance of a U.S. court to compel the Service to either produce substitute income tax returns claimed to have been prepared on certain asserted dates, or concede IRS FAILS to prepare substitute income tax returns on any dates shown in IRS falsified records, and to

3.) protect the appellate records of Judges Jackson and Cooper.”

Respondents also provide the following reasons that the pre-filing injunction should be dissolved (See the Motion for details explaining each reason):

Reason 1. Mr. Cooper had a personal interest in issuing the prefiling injunction and has a personal interest in the outcome of the Motion for Sanctions

Reason 2. McMonagle has a personal interest in the outcome

Reason 3. The Prefiling Injunction was imposed in violation of every applicable Circuit precedent, and in violation of the criminal law of the United States

Reason 4. Attorneys failed to identify HOW Respondents’ recent suits violate the injunction

Reason 5. Attorney fails to show how the Relief sought in recent cases violates the injunction

Reason 6. Attorney concedes the recent cases are NOT brought against IRS or DoJ

Reason 7. Multiple instances of judicial misconduct and malfeasance warrant Judge Cooper’s recusal and removal from the bench

Reason 8. Plaintiffs have OVERWHELMING good faith reason to litigate

Reason 9. The dollar amounts sought are outrageous and unjust

On March 1, 2018, in response the January 3, 2018 Order to Show Cause, Counterclaim Defendants McNeil and Ellis traveled from Texas to Washington, D.C. and appeared before Judge Cooper to show cause why they should NOT be held in contempt of court for allegedly violating his April 19, 2017 Memorandum Opinion and Order of Permanent Injunction.

Following that hearing, in which McNeil and Ellis were NOT found to be in contempt of court, Judge Cooper issued the following Minute Order on March 1, 2018:

The Court's January 3, 2018 Order to Show Cause is hereby discharged. The Court's April 19, 2017 Injunction is provisionally amended on terms stated in open court at today's hearing. Within 7 days, the Government shall file a proposed permanent amendment in writing. Counterclaim Defendants shall file any response within 7 days thereafter.

On March 2, 2018, the Court Reporter provided the Transcript of the March 1, 2018 Show Cause hearing.

On March 5, 2018, et al, McNeil and Ellis filed their NOTICE OF APPEAL & MOTION TO STAY AMENDMENT OF PRE-FILING INJUNCTION, UNTIL ADJUDICATION BY C.O.A. OF: “MOTION TO RECUSE THE HON. CHRISTOPHER REID COOPER from 16-1053, And TO DISSOLVE PREFILING INJUNCTION”.

And, on March 7, 2018, the U.S. District Court Clerk transmitted the Notice of Appeal, Order Appealed, and Docket Sheet to USCA.

Then, on March 8, 2018, DoJ attorney McMonagle, in compliance with Judge Cooper’s Minute Order of March 1, 2018, filed his Notice of Proposed Amended Order of Permanent Injunction with the Amended Order of Permanent Injunction attached.

The Amended Order of Permanent Injunction now reads:

Accordingly, it is hereby ORDERED that:

(1) Counterclaim defendants Michael B. Ellis, and Robert A. McNeil be permanently enjoined from:

a. Filing, or assisting in the filing of, any civil action in any United States District Court, without first obtaining leave of that court, asserting, or purporting to assert a claim under the United States Constitution or the Administrative Procedure Act challenging actions taken by the Internal Revenue Service in preparing to assess and assessing income tax liabilities pursuant to 26 U.S.C. § 6020;

b. Filing, or assisting in the filing of, any civil action in any United States District Court, without first obtaining leave of that court, asserting or purporting to assert a claim under the United States Constitution or the Administrative Procedure Act challenging actions taken by the Department of Justice to defend against the suits referenced in paragraph 1(a) and/or suits to collect income tax liabilities;

c. Filing, or assisting in the filing of, any civil action in any United States District Court, without first obtaining leave of that court, asserting or purporting to assert claims against judicial officers, whether in their official or personal capacities, challenging the merit, the substance, and/or the process of those judicial officers’ decisions with respect to the Internal Revenue Service’s program for preparing to assess and assessing income tax liabilities pursuant to 26 U.S.C. § 6020(b);

(2) In order to seek prior leave of court to file an action referenced in paragraph 1, the counterclaim defendants shall, before filing any complaint or other initiating document, file with the court a document titled “Application Pursuant to Court Order Seeking Leave to File,” that: (i) certifies that the claims presented are new claims never before raised and disposed of on the merits on or jurisdictional grounds by any court; (ii) describes the allegations of the complaint; and (iii) contains a certification under penalty of contempt that the allegations of the complaint are true; and (iv) attaches a copy of this injunction. The counterclaim defendants shall not be permitted to file said action unless and until such application is granted.

(3) Counterclaim Defendant Robert A. McNeil shall post a copy of this amended injunction on his website, http://ram-v-irs.com.

(4) The United States may engage in post-judgment discovery to monitor compliance with the injunction.

(5) The Court shall retain jurisdiction over the counterclaim defendants and this action for the purpose of implementing and enforcing this injunction and any additional orders necessary and appropriate to the public interest.

On March 16, 2018, McNeil and Ellis filed Respondents’ Objection to Amending FRIVOLOUS Pre-filing Injunction And MOTION TO DISSOLVE INJUNCTION. Footnote 2 sums up this document nicely:

Mr. Cooper issued his injunction without analyzing the content of Respondents cases, after fabricating and attributing to them relief they did not seek, after failing to show EVIDENCE that he or any government attorney or agency has been harassed by their filing of respectful lawsuits, after failing to show EVIDENCE Respondents intended to harass anyone, after failing to note no class case was ever dismissed as meritless, (even six dismissed by himself!), after basing his injunction on the mere number of cases they filed, not one of which was ever addressed on their merits, and issued his sanction to terminate Respondents right to access meaningful relief from the underlying IRS record falsification program he is defending and prolonging.

On March 22, 2018, DoJ attorney McMonagle filed United States’ Opposition to Motion to Stay Enforcement of Amended Injunction. In this document, he states:

Ellis and McNeil’s motion is moot. They requested a stay “until the questions of (1.) Mr. Cooper’s fitness to preside further in Class cases, and (2.) the justness of his pre-filing injunction, have been resolved” by the United States Court of Appeals for the District of Columbia Circuit in case number 17-5191. Motion at 2. The Court of Appeals resolved those questions on March 14, 2018, denying McNeil and Ellis’s motion to recuse this Court, and affirming the Court’s entry of a permanent injunction against them. Crumpacker v. Ciraolo-Klepper, et al., No. 17-5191 (D.C. Cir.) [Doc. 17221, at 2-3]. Moreover, per the Court’s directions at the March 1, 2018 hearing, the United States has submitted a proposed amended injunction and Ellis and McNeil have filed their objection to it. Since the period of stay requested by Ellis and McNeil has expired, the Court cannot grant the requested relief, and the motion should be denied.

Then, on April 3, 2018, Judge Cooper issued a Minute Order Denying McNeil and Ellis’ MOTION TO STAY AMENDMENT OF PRE-FILING INJUNCTION as moot.

MINUTE ORDER: The Court hereby DENIES 30 Respondents' Motion to Stay as moot. Respondents moved to stay the Court's amendment of the pre-filing injunction pending the D.C. Circuit's adjudication of their motion to recuse this Court and their challenge to the pre-filing injunction. On March 14, 2018, the D.C. Circuit denied Respondents' motion to recuse, and affirmed the Court's entry of a pre-filing injunction against them, Crumpacker v. Ciraolo- Klepper, et al., No. 17-5191 (D.C. Cir.), thus mooting the Motion to Stay. So Ordered. Signed by Judge Christopher R. Cooper on 4/3/2018.

Also on April 3, 2018, Judge Cooper issued his Amended Order of Permanent Injunction, which reads:

Accordingly, it is hereby ORDERED that:

(1) Counterclaim defendants Michael B. Ellis, and Robert A. McNeil be permanently enjoined from:

(3) Counterclaim Defendant Robert A. McNeil shall post a copy of this amended injunction on his website, http://ram-v-irs.com.

(4) The United States may engage in post-judgment discovery to monitor compliance with the injunction.

Following are the Docket Sheets containing links to all the documents filed in this case.

U.S. District Court for the District of Columbia

18-mc-00011 Docket Sheet

U.S. Court of Appeals for DC

18-5067 Docket Sheet