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October 12, 2017 – A Further Update On Contempt Proceedings

   Posted by: BobMcNeil   in IRS

The day after I posted my October 10, 2017 blog detailing the DoJ’s Motion for Show Cause why Michael and I should NOT be held in contempt of Court, I logged onto PACER (Public Access to Court Electronic Records) to check the Docket Sheet for Case No. 16-1053 to see if attorney McMonagle had filed a response to our September 28, 2017 document entitled “Ellis & McNeil Opposition to Motion for Show Cause & Motion to Notice Suspension of ASFR Record Falsification Program”.

Sure enough, on October 11th, McMonagle had filed it’s 6-page “United States’ Reply In Support Of Motion For Show Cause Why Counterclaim Defendants Should Not Be Held In Contempt”.

McMonagle begins by stating “The United States established in its motion for order to show cause that the counterclaim defendants, Robert McNeil and Michael Ellis, violated this court’s injunction by filing McNeil, et al. v. Harvey, et al., No. 1:17-cv-01720 in this district without first obtaining leave to do so.”

“McNeil and Ellis’s opposition offers no reason why they should not be held in contempt for filing this new lawsuit. Instead, it simply rehashes McNeil and Ellis’s oft-repeated and always rejected claim that their actions – and the actions they helped others file – were improperly dismissed under the Tax Anti-Injunction Act (26 U.S.C. § 7421) because: attorneys [including DOJ attorneys, and judicial officers from this district and elsewhere] “falsified the record [in their dismissed cases] to reflect that victims were supposedly attempting to ‘enjoin IRS preparation of substitute income tax returns,” despite victims’ explicit ACTUAL core complaint allegation that the IRS never prepares substitute income tax returns on any date shown in IRS’ digital records falsified as the initial step in the ASFR program. Opposition [Dkt. No. 54] at 2.”

Further, he writes “McNeil and Ellis’s outlandish allegation that judicial officers and attorneys from the Department of Justice are actively conspiring to deny them access to the Courts is (as this Court is aware) not new. They have litigated it via Rule 59 motions, as well as in their unsuccessful appeals to the D.C. Circuit in this case and others. They are also currently litigating this claim in Ellis v. Berman-Jackson, No. 1-16-cv-02313 (D.D.C.).”

To make his case, McMonagle continues: “Moreover, this Court held that McNeil’s and Ellis’s repeated, insistent prosecution of the same worn conspiracy theories in multiple suits amounted to “harassment” warranting the entry of an injunction under In re Powell, 861 F.2d 427, 431 (D.C. Cir. 1988). Order of Permanent Injunction, Findings of Fact, ¶ 10 (“McNeil and Ellis have, in their own suits and the suits they have prepared on behalf of others, sued . . . judicial officers[.]”); ¶ 11 (“McNeil has no good faith or legal basis for continuing to promote this duplicative litigation on www.ram-v-irs.com.); ¶ 12 (“McNeil and Ellis brought their respective lawsuits against individual federal officials, employees, and judicial officers for the purpose of harassment, and not for any legitimate purpose.”). Accordingly, despite McNeil and Ellis’s protestations to the contrary, this new suit is in no way new.”

[RAM Note: McMonagle’s hyperbolic claims of “worn conspiracy theories” and “harassment” should never have arisen because, in case after case, Plaintiffs moved their respective Court to certify the cases as a class action lawsuit. But, no Court granted that motion. In recognition of that fact, it makes perfect sense that multiple suits, containing the same allegations and relief, would be filed.]

Next, he says “But, even assuming arguendo that this claim were new, McNeil and Ellis were still required to file an “Application Pursuant to Court Order Seeking Leave to File’ that certifies that the claims presented are new claims never before raised an [sic] disposed of on the merits or on jurisdictional grounds by any court, attaches this Court’s injunction, and “contains a certification under penalty of contempt that the allegations of the complaint are true.” Order of Injunction at p. 6 ¶ 2 (emphasis added). They did not do so and have therefore violated this Court’s injunction.”

[RAM Note: As noted in my prior blog, Michael and I carefully read and discussed every word of the injunction, and determined that, based on the narrowly constructed language of paragraph 1, we were NOT required to file an “Application Pursuant to Court Order Seeking Leave to File” before filing Case No. 17-1720. And, our opinion has not changed.]

In a stunning example of flawed logic, McMonagle states “McNeil and Ellis respond that this new action is not within the ambit of the injunction because the new lawsuit does not challenge actions “taken by either the [IRS] or [DOJ], and seek no judgment against either. Instead . . . they seek a narrow declaratory judgment as to whether the merits of their [prior dismissed] cases to terminate the ASFR record falsification program were ever adjudicated.” Opp’n at 4-5. This argument does not justify their failure to follow the pre-filing procedures set out in this Court’s injunction for two reasons. First, a declaration that the prior courts did not adjudicate their claims, or did not properly consider the record by “fabricating” facts, is functionally the same as a direct appeal from those dismissals. {Footnote 2} It is nonsensical to argue that a direct appeal of those dismissals does not challenge the underlying conduct alleged in the complaint, when the very reason for the direct appeal is that the Court did not address the underlying conduct alleged in the complaint. Put another way, they cannot avoid the injunction against suing the DOJ for moving to dismiss their frivolous legal challenges by instead suing the courts for dismissing them. To the extent there is any distinction between the two, it is a false one.”

{Footnote 2For this reason, McNeil and Ellis’s new lawsuit is subject to dismissal because a District Court is not a “reviewing court” that may review the decisions of its fellow Article III judges Sibley v. United States Supreme Court, 786 F. Supp. 2d 338, 345 (D.D.C. 2011) (“[t]his court is not a reviewing court and cannot compel . . . other Article III judges in this or other districts or circuits to act review by any other court.”).}

[RAM Note: Every lawsuit we file, and assist in filing, is written in plain English at a level anyone can understand. (Or, so we thought.) So, there is no reason for McMonagle to insert the words “functionally the same” or “put another way….” into this document. The allegations put forth in every suit are based on IRS-supplied evidence that speaks LOUDLY and points DIRECTLY to the IRS’ institutionalized record falsification scheme.]

Further “Second, as noted above, McNeil and Ellis are litigating this same declaratory relief claim in Ellis v. Jackson, et al., which was filed before the injunction was entered and which the Court noted as an example of a suit brought solely for the purpose of harassment. There is no principled reason why a post-injunction lawsuit seeking the same relief as Ellis v. Jackson does not violate the Court’s injunction.”

Conclusion – For the reasons set forth in the United States’ opening memorandum and reply, the United States requests that the court order McNeil and Ellis to show cause why they should not be held in contempt or, since they have already responded to the United States’ motion before an order to show cause has been issued, to hold them in contempt.”

So, there you have it.

Our fate is now in Judge Cooper’s hands. Any guesses what his decision will be?

Whatever it is….it is God’s will.

In liberty,

Bob McNeil
2018 U.S. Senate Candidate from Texas
21st Century American Revolutionary
Founder/President – American Citizen Party

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