Paul Andrew Mitchell, B.A., M.S.
Private Attorney General
c/o General Delivery
Sunset Beach 90742
CALIFORNIA, USA
All Rights Reserved
without Prejudice
UNITED STATES COURT OF APPEALS
NINTH CIRCUIT
Lynne Meredith et al., ) No. 01-56873
)
Plaintiffs/Appellants,)
v. )
)
Andrew Erath et al., )
)
Defendants/Appellees. )
)
--------------------------------)
) NOTICE OF MOTION AND
United States ) MOTION FOR REHEARING EN BANC
ex relatione ) AND FOR LEAVE TO FILE
Paul Andrew Mitchell, ) ENLARGED BRIEF:
) Article I, Section 9, Clause 7,
Movant. ) U.S. Constitution;
) 28 U.S.C. 530B, 1652;
________________________________) FRAP Rules 35, 40.
COMES NOW the United States (hereinafter “Movant”) ex relatione Paul Andrew Mitchell, Citizen of ONE OF the United States of America and Private Attorney General (hereinafter “Relator”) to petition this honorable Court for a rehearing en banc of the ORDER filed in the instant appeal on February 20, 2002 A.D.
Relator hereby certifies that the instant appeal involves questions of exceptional importance and urgency, due in part to recent events further abridging Appellants’ fundamental Rights to liberty.
APPELLEES NEVER
FILED PROPER MOTIONS
Movant directs the undivided attention of this honorable Court to Appellants’ OBJECTION TO THE UNITED STATES ATTORNEY REPRESENTING AGENTS BEING SUED IN THEIR PERSONAL, INDIVIDUAL CAPACITY, filed in the District Court of the United States (“DCUS”) on April 12, 2000 A.D., and their NOTICE OF ERROR AND OBJECTION, dated November 23, 2001 A.D. (see Exhibit “A” attached hereto and incorporated by reference, as if set forth fully here).
Thus, Appellants did not raise this question for the first time on appeal.
The delegation of authority for legal representation of employees of the Internal Revenue Service (“IRS”) begins at 31 U.S.C. 301(f)(2). As such, that delegation of authority completely bypasses the U.S. Department of Justice (“DOJ”) and all Offices of the United States Attorney (“OUSA”).
In good faith, Movant specifically denies that the Congress of the United States has ever appropriated funds for either DOJ or OUSA to represent IRS employees in their individual capacities in any federal courts. See Article I, Section 9, Clause 7.
Legal representation of IRS employees must be done by private, duly licensed attorneys retained by those employees, or by counsel(s) to whom power(s) of attorney are specifically delegated by the IRS Chief Counsel, after appointment of said Chief Counsel by the President of the United States of America. See sections 6067, 6126 and 6127 of the California Business and Professions Code.
Lawful delegation of authority flows from the U.S. Constitution, to the Congress in its lawmaking capacity, to the President of the United States of America, and then to the IRS Chief Counsel, pursuant to 31 U.S.C. 301(f)(2) supra.
VIOLATES
THE McDADE ACT, 28 U.S.C. 530B
Willful misrepresentation is a violation of the McDade Act at 28 U.S.C. 530B, and/or sections 6126 and 6127 of the California Business and Professions Code. In California State, the latter two (2) violations are misdemeanors, and contempts of courts, respectively.
In good faith, Movant specifically denies that Appellees are properly represented by duly licensed private attorneys. There is no evidence in the record before this honorable Court that private attorneys have made any attempts to represent, or appear on behalf of, any named Appellees.
Movant likewise denies that DOJ or OUSA enjoy any constitutional or statutory power(s) of attorney to represent employees of an entity that was never created by any lawful Act of Congress. See Chrysler Corp. v. Brown, 441 U.S. 281, footnote 23 (1979) (no organic Act could be found for IRS, after the U.S. Supreme Court searched all the way back to the Civil War era).
Appellants are guaranteed a Republican Form of Government. See Guarantee Clause. This means that Appellants are governed by the rule of Law; they are not governed by the rule of arbitrary bureaucrats.
Movant likewise denies that 28 U.S.C. 547(3) authorizes DOJ or OUSA to represent IRS employees in their individual capacities, because the latter are not “collectors, or other officers of the revenue or customs” as those terms are used at 28 U.S.C. 547(3) (“by them paid into the Treasury”). See IRC 7809.
THE ARTICLE III DISTRICT COURT OF THE UNITED STATES
WAS NEVER EXPRESSLY ABOLISHED BY ANY ACT OF CONGRESS
The Act of June 25, 1948, expressly changed the name of the “District Court of the United States for the District of Columbia” to “United States District Court for the District of Columbia”. See section 32(b) in said Act, 62 Stat. 985 to 991.
However, no such comprehensive amendments were ever enacted for the District Courts of the United States (“DCUS”) located within the several States of the Union. The statute at 28 U.S.C. 132 likewise did not abolish the Article III DCUS. For example, compare 60 Stat. 440 (Lanham Act); Sherman Act; 18 U.S.C. 1964(a) and (c).
A rules amendment, effective December 29, 1948, amended the title “Rules of Civil Procedure for the District Courts of the United States” to read “Rules of Civil Procedure for the United States District Courts”.
A rules amendment, effective October 20, 1949, substituted the words “United States district courts” for the words “district courts of the United States” throughout the FRCP.
The scope of these substitutions was limited to the FRCP and could not have affected any federal statutes. See Notes to Rule 1.
Moreover, repeals by implication are not favored by the courts. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987); 74 Am.Jur.2d 21-22: Johnson v. Browne, 205 U.S. 309 (1907); U.S. v. Lee Yen Tai, 185 U.S. 213 (1902); also “Separation of Powers and Delegation of Authority to Cancel Statutes in the Line Item Veto Act and the Rules Enabling Act,” by Leslie M. Kelleher, George Washington Law Review, Vol. 68, No. 3, Feb. 2000.
THE ABROGATION CLAUSE AT 28 U.S.C. 2072(b)
CANNOT RETROACTIVELY AMEND FEDERAL STATUTES
CONFERRING ORIGINAL JURISDICTION ON THE DCUS
This honorable Court will please take formal judicial Notice of the proper challenge which has now been filed against 28 U.S.C. 2072(b), for violating the Separation of Powers Doctrine and the ex post facto prohibition. See legislative history of 1988 amendments, Rep. Kastenmeier: “unwise and potentially unconstitutional”.
A NOTICE OF CHALLENGE TO THE CONSTITUTIONALITY OF AN ACT OF CONGRESS has been filed pursuant to FRAP Rule 44 in Mitchell v. AOL Time Warner, Inc. et al., Ninth Circuit appeal #02-15269.
The U.S. Supreme Court has defined “separation of powers” as follows: “a power definitely assigned by the Constitution to one department can neither be surrendered nor delegated by that department, nor vested by statute in another department or agency.” Williams v. United States, 289 U.S. 553, 580 (1933).
However, the high Court in that case erred by defining “Party” in Article III to mean Plaintiff only. This definition contradicts the definition of “Party” as found in Bouvier’s Law Dictionary (1856) (“Party” embraces both plaintiffs and defendants).
Accordingly, the FRCP amendment effective October 20, 1949, was strictly limited to those rules and could never have altered any existing federal statutes, whether retroactively or otherwise. See Mookini v. United States, 303 U.S. 201, 58 S.Ct. 543, 82 L.Ed. 748 (1938) (term “District Courts of the United States” in its historic and proper sense); Act of June 25, 1948, 62 Stat. 985 to 991, sections 2(b) (“continuations of existing law”) and 9 (“the jurisdiction of district courts of the United States”).
SUMMARY AFFIRMANCE WAS INAPPROPRIATE BECAUSE
RESULTS WERE NOT CLEAR ON THE FACE OF THE RECORD
This Court’s reliance upon U.S. v. Hooton, 693 F.2d 857 (9th Cir. 1982) is unfortunately misplaced. The compelling results that obtain from Movant’s arguments supra are neither clear, nor obvious, if superficial reviews of the official record are done, or if recent developments in fact are ignored.
Movant argues that summary proceedings are surely prone to overlook important subtleties, such as the lack of proper representation that obtains when powers of attorney do not exist, are merely assumed, and remain unproven even when properly challenged.
In the case at bar, the requisite powers of attorney and proper representation both assume facts not in evidence.
Appellants petitioned the District Court of the United States (“DCUS”) in chief to avoid summary adjudication in legislative tribunals like the USDC, and to guarantee deliberation in a constitutional court exercising the judicial Power of the United States. See Arising Under Clause and 28 U.S.C. 1331 (federal question), in pari materia with the Supremacy Clause.
For this reason alone, summary review is entirely inappropriate and a denial of Appellants’ fundamental Right to due process of law. This honorable Court is barred from presuming that Appellants have acquiesced in the loss of any fundamental Rights. Ohio Bell v. Public Utilities Commission, 301 U.S. 292 (1937).
The threat of continuing tortious behavior by certain named Defendants is real and imminent, dramatically increasing the probability that Appellants will prevail at trial on the merits.
A PRELIMINARY INJUNCTION IS WARRANTED
IMMEDIATELY TO HALT FURTHER ACTUAL DAMAGES
Movant now directs the undivided attention of this honorable Court to the VERIFIED CRIMINAL COMPLAINT recently lodged by Relator against Ms. Alicia Villarreal and Mr. Andrew Erath. See Exhibit “B” attached hereto and incorporated by reference, as if set forth fully here.
Andrew Erath is already a named Defendant in the instant case. Alicia Villarreal claims to occupy the office of Assistant U.S. Attorney in the OUSA in downtown Los Angeles, California.
While the instant MOTION was being written, Co‑Plaintiff Gayle Bybee was preparing Her own VERIFIED CRIMINAL COMPLAINT against the same two individuals and other known accomplices. However, scheduling and other extraordinary circumstances prevented inclusion of this latter COMPLAINT as another Exhibit here.
Gayle Bybee was subsequently arrested in connection with a defective INDICTMENT allegedly issued by a lawful federal grand jury. To the best of Relator’s current knowledge, Gayle Bybee is still in the custody of U.S. Marshals at some federal detention center unknown to Relator.
Given their legal obligations under 18 U.S.C. 4, Gayle Bybee and Relator had no other viable alternatives but to report the felony federal offenses they both had witnessed.
Given the severity of felony misconduct already alleged, it would be unreasonable in the extreme for this honorable Court to overlook the obvious, and neglect to take appropriate measures to prevent further actual damages to all Appellants, and possibly to others who are not real parties of interest at present.
BARRING FURTHER FILINGS AND CLOSING THE
DOCKET
ARE ALSO DEPRIVATIONS OF DUE PROCESS
This Court’s ORDER dated February 20, 2002, also commits a plain error by attempting to close the docket and to bar any further motions for reconsideration, modification, clarification, stay of mandate or other filings.
Once again, Movant objects to this apparent deprivation of Appellants’ fundamental Rights to due process of law, as guaranteed by the Fifth and Seventh Amendments.
Movant has now carried its burden of demonstrating why sufficient causes exist to deny Appellees’ motion to dismiss.
At the very least, that motion was filed by
counsel without lawful power(s) of attorney to do so, in the first
instance.
Given the exceptional importance which attaches to those causes, Movant argues that Their fundamental Rights mandate an opportunity to request reconsideration and/or rehearing en banc.
Motions to this Court are petitions to Government for redress of grievances. Such motions deserve a sanction and a sanctity not permitting dubious intrusions of any kind. See Petition Clause; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 322 (1945).
Furthermore, this Court has attempted to close the docket and to bar any other filings, but without citing any authority whatsoever for doing so. Hence, this Court is thereby attempting to legislate!
Movant wishes to reiterate that such an attempt is characteristics of legislative tribunals where “judge-made laws” prevail, by force of habit and not by force of Law.
But, all legislative Powers are vested in the Congress of the United States, and none is vested in federal constitutional courts. See Article I, Section 1, in the U.S. Constitution.
This honorable Court is, therefore, mandated to deliberate in constitutional mode, duly exercising the judicial Power of the United States under Article III, and not its legislative powers under Articles I and IV of the U.S. Constitution.
REMEDY REQUESTED
All premises having been duly considered, Movant respectfully requests a rehearing en banc of its ORDER filed February 20, 2002 A.D. in the instant appeal, and a published OPINION holding, as a matter of Law, that:
(1) the IRS was never created as such by any specific Act of Congress, either in Title 31, U.S.C., or elsewhere;
(2) Title 31, U.S.C., has been enacted into positive law;
(3) Title 26, U.S.C., has not been enacted into positive law;
(4) IRS is a trust, codified at 31 U.S.C. 1321(a)(62) and domiciled in Puerto Rico under color of the Federal Alcohol Administration;
(5) in addition to the Cabinet office domiciled in the District of Columbia, a second Secretary of the Treasury is authorized for Puerto Rico by the federal regulation at 27 CFR 250.11;
(6) as such, the IRS is not an “agency” as that term is specifically defined at 5 U.S.C. 551(1)(C);
(7) DOJ and OUSA enjoy no general powers of attorney to represent IRS, or IRS employees, in any federal courts;
(8) DOJ and OUSA enjoy no Congressional appropriation to represent IRS, or IRS employees, in any federal courts;
(9) the President of the United States of America has appointed, by and with the advice and consent of the U.S. Senate, an Assistant General Counsel who is presently the Chief Counsel for the IRS;
(10) the IRS Chief Counsel has no authority to re‑delegate general power(s) of attorney to DOJ or to OUSA for purposes of appearing in federal court on behalf of the IRS, or IRS employees in their individual capacities;
(11) the District Court of the United States, Central Judicial District of California, Judge Florence‑Marie Cooper presiding (“DCUS”), erred by denying Appellants’ petition for preliminary injunction;
(12) said DCUS erred by granting any of Appellees’ motions filed by counsel lacking powers of attorney, and contrary to the McDade Act at 28 U.S.C. 530B;
(13) lacking powers of attorney, counsel for Appellees failed timely to move this Court of Appeals to dismiss the instant appeal as to interlocutory orders;
(14) likewise, counsel for Appellees failed timely to move this Court of Appeals to affirm the district court’s denial of injunctive relief;
vacating this Court’s ORDER filed in error on February 20, 2002 A.D., reversing the district court’s denial of injunctive relief, and remanding the instant case back to the DCUS for further proceedings, in light of the holding above.
VERIFICATION
The Undersigned hereby verifies, under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that the above statement of facts and laws is true and correct, according to the best of My current information, knowledge and belief, so help me God, pursuant to 28 U.S.C. 1746(1). See Supremacy Clause (Constitution, Laws and Treaties are all supreme Law of the Land throughout America).
Dated: April 25, 2002 A.D.
Signed: /s/ Paul Andrew Mitchell
______________________________________________
Paul Andrew Mitchell, Private Attorney General
I, Paul Andrew Mitchell, Sui Juris, hereby certify,
under penalty of perjury, under the laws of the United States of America,
without the “United States” (federal government), that I am at least 18
years of age, a Citizen of ONE OF the United States of America, and that I personally served the
following document(s):
Article I, Section 9, Clause 7,
U.S. Constitution;
28 U.S.C. 530B, 1652; FRAP Rules 35, 40
by placing one true and correct copy of said document(s) in
first class United States Mail, with postage prepaid and properly addressed to
the following:
Clerk of Court (50x)
Attention: Cathy Catterson
Ninth Circuit Court of Appeals
P.O. Box 193939
San Francisco 94119-3939
CALIFORNIA, USA
Lynne Meredith
Booking #24001112
Federal Detention Center
17645 Industrial Farm Road
Bakersfield 93308
CALIFORNIA, USA
Gayle Bybee
c/o Marcia J. Brewer
300 Corporate Pointe, Suite 330
Culver City 90230
CALIFORNIA, USA
Jenifer Meredith
c/o P.O. Box 370
Sunset Beach 90742
CALIFORNIA, USA
Carla Figaro
21213-B Hawthorne Blvd., #5361
Torrance 90503
CALIFORNIA, USA
Andrew Erath
c/o Office of Regional Inspector
Internal Revenue Service
P.O. Box 6238
Laguna Niguel 92607
CALIFORNIA, USA
Richard Stack and Darwin
Thomas Rebecca Sparkman
300 North Los Angeles
Street Internal Revenue Service
Room 7211, Federal
Building 24000 Avila Road, #3314
Los Angeles 90012 Laguna Niguel 92607
CALIFORNIA, USA CALIFORNIA, USA
Gretchen W.
Wolfinger Victor Song
U.S. Department of
Justice Internal Revenue Service
Appellate Section 24000 Avila Road, #3314
P.O. Box 502 Laguna Niguel 92607
Washington 20044 CALIFORNIA, USA
DISTRICT OF COLUMBIA,
USA
Patricia Mazon Office of the Chief
Counsel
Internal Revenue
Service Internal Revenue
Service
501 West Ocean
Boulevard c/o 24000 Avila Road
Long Beach Laguna Niguel 92607
CALIFORNIA, USA CALIFORNIA, USA
Courtesy Copies to:
Office of the Solicitor General
950 Pennsylvania Avenue, N.W., Room
5614
Washington 20530-0001
DISTRICT OF COLUMBIA, USA
Judge Alex Kozinski (supervising)
Ninth Circuit Court of Appeals
P.O. Box 91510
Pasadena 91109-1510
CALIFORNIA, USA
[See USPS Publication #221 for
addressing instructions.]
Dated: April 25, 2002 A.D.
Signed: /s/ Paul Andrew Mitchell
______________________________________________
Printed: Paul Andrew Mitchell, Private Attorney General
Objection to the United States Attorney
Representing Agents Being Sued
in Their Personal, Individual Capacity
Filed: April 12, 2000 A.D.
-and-
NOTICE OF ERROR AND OBJECTION
Dated: November 23, 2001 A.D.
Relator’s VERIFIED CRIMINAL COMPLAINT
Executed on February 27, 2002 A.D.
against Alicia Villarreal and Andrew Erath
Served upon Judge Alex Kozinski
Ninth Circuit Court of Appeals
February 28, 2002 A.D.