Paul Andrew Mitchell, B.A., M.S.

Private Attorney General

c/o 40960 California Oaks Road

Box 281

Murrieta 92562

CALIFORNIA, USA

 

In Propria Persona

 

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. )

--------------------------------)

United States                   )  NOTICE OF MOTION AND

ex relatione                    )  MOTION FOR ORDER TO THE

Paul Andrew Mitchell,           )  U.S. DEPARTMENT OF JUSTICE TO

                                )  SHOW CAUSE WHY ITS OPPOSITION

          Intervenor.           )  TO INTERVENTION AND INJUNCTION

--------------------------------)  SHOULD NOT BE STRICKEN:

Internal Revenue Service,       )  28 U.S.C. 530B, 1652.

                                )

          Respondent.           )

________________________________)

COMES NOW the United States (hereinafter “Intervenor”) ex relatione Paul Andrew Mitchell, Citizen of ONE OF the United States of America and Private Attorney General (hereinafter “Relator”), to move this honorable Court for an ORDER to the U.S. Department of Justice (“DOJ”) to show cause why APPELLEES’ OPPOSITION TO MOTIONS OF PAUL ANDREW MITCHELL FOR “INTERVENTION OF RIGHT” AND FOR A PRELIMINARY INJUNCTION should not be stricken, and to provide formal Notice of same to all interested parties.

Intervenor now documents the following meritorious reasons in support of the instant MOTION FOR ORDER TO SHOW CAUSE, to wit:

 

DOJ WILL NOT REPLY FURTHER UNLESS

DIRECTED TO DO SO BY THIS COURT

In her letter dated May 21, 2002, and directed to Cathy A. Catterson, Clerk of this Court, Ms. Gretchen M. Wolfinger, attorney for the Appellate Section of the U.S. Department of Justice, Tax Division, has stated in pertinent part, “... [W]e do not propose to respond to these or any additional pleadings filed by Mr. Mitchell unless otherwise directed to do so by the Court.”  [emphasis added]

A true and correct copy of said letter is incorporated by reference to Attachment “A” infra, as if set forth fully here.

 

DOJ REPRESENTATION OF APPELLEES

ASSUMES FACTS NOT IN EVIDENCE

The DOJ have had sufficient actual notice and ample opportunities to establish conclusively in the record, both here and below, that the requisite power(s) of attorney and delegation(s) of authority do exist, as a matter of law.

Moreover, the DOJ have now been specifically challenged to prove that they have a right to represent the named Appellees in the instant appeal, and the DOJ have now failed to do so.

Accordingly, their claim to having any right to represent the named Appellees was, at best and heretofore, a rebuttable presumption which has been thoroughly repudiated by their silence in the face of Intervenor’s proper and timely written challenges, and by Appellants’ proper and timely written objections.

DOJ representation of the named Appellees assumes facts, and laws, that are simply not in evidence before this honorable Court.

 

THE RECORD NOW BEFORE THIS UNITED STATES COURT OF APPEALS

CITES A REGULATION WHICH EXPRESSLY BARS DOJ REPRESENTATION

The regulation already cited by the DOJ in USA v. Wishart, Clerk’s docket number #CR‑00‑20227‑JF, USDC San Jose, California, clearly and emphatically bars DOJ representation of IRS employees in all proceedings pertaining to the misconduct of IRS personnel.

Intervenor submits that the term “misconduct” as used in 28 CFR 0.70(b) embraces any violation(s) of federal law, such as the specific violations alleged in Appellants’ Initial COMPLAINT.

Intervenor argues further that the DOJ either knew, or should have known, they had a legal and a moral obligation to disclose any and all power(s) of attorney when properly challenged to do so.

DOJ’s historical willingness to cite only a published federal regulation which expressly bars their representation of IRS employees, in proceedings pertaining to the misconduct of IRS personnel, and to cite no other pertinent authority(s), is conclusive upon this Court.

This Court should strike the DOJ’s OPPOSITION supra, because the record now before it emphatically compels such a disposition.

 

THE McDADE ACT AT 28 U.S.C. 530B EFFECTIVELY

SANCTIONS WILLFUL MISREPRESENTATION OF APPELLEES

The language of the McDade Act is also explicit and compelling in its application to the instant appeal:  DOJ attorneys, without exception, are subject to California State laws to the same extent and in the same manner as other attorneys in the State of California.

Willful misrepresentation is a misdemeanor violation of Section 6126 of the California Business and Professions Code, and a contempt of court in violation of Section 6127 of the California Business and Professions Code.

Intervenor expressly imports these California State laws as rules of decision in the instant appeal, pursuant to 28 U.S.C. 1652.

 

INTERVENOR SEEKS TO EXHAUST ALL JUDICIAL REMEDIES

AVAILABLE FROM THIS UNITED STATES COURT OF APPEALS

Intervenor argues that a timely ORDER from this Court to the DOJ ‑‑ to show cause why their OPPOSITION to Intervenor’s intervention and request for preliminary injunction should not be stricken ‑‑ will satisfy all applicable rules of evidence and of appellate procedure.

Such an ORDER will also provide this honorable Court with a record which will have ripened sufficiently to justify a timely ruling on the matters at hand, without any further adjudication.

By their concerted silence, Appellees have failed to appear either In Propria Persona, by private counsel or by any other duly authorized legal representation.  See 31 U.S.C. 301(f)(2), in chief.

Appellees have cast their fate upon the unsubstantiated premise that the DOJ do enjoy lawful power(s) of attorney to represent them in the first instance, when the DOJ admittedly and emphatically do not.

In light of all these facts and laws as thoroughly itemized in the record now before this Court, the requested ORDER TO SHOW CAUSE will give the DOJ one last chance to demonstrate any error(s) or omission(s) that might have been made by Intervenor to date.

DOJ’s failure to demonstrate any error(s) or omission(s) by Intervenor will call for one conclusion:  strike their OPPOSITION.

 

REMEDY REQUESTED

All premises having been duly considered, Intervenor respectfully requests this honorable Court to issue a routine ORDER to the U.S. Department of Justice to show cause why their pleading entitled APPELLEES’ OPPOSITION TO MOTIONS OF PAUL ANDREW MITCHELL FOR “INTERVENTION OF RIGHT” AND FOR A PRELIMINARY INJUNCTION should not be stricken permanently from the record, for having been submitted to this Court in error and without any lawful power(s) of attorney for the Attorneys in question to represent any of the named Appellees, even after said Attorneys and Appellees were properly and timely challenged to exhibit same in this Court and in the district court below.

Thank you very much for your professional consideration.

 

VERIFICATION

I, Paul Andrew Mitchell, Sui Juris, hereby verify, 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 the supreme Law of the Land).

 

Dated:   May 28, 2002 A.D.

 

Signed:  /s/ Paul Andrew Mitchell

         ______________________________________________

Printed: Paul Andrew Mitchell, Private Attorney General


PROOF OF SERVICE

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):

 

NOTICE OF MOTION AND

MOTION FOR ORDER TO THE U.S. DEPARTMENT OF JUSTICE

TO SHOW CAUSE WHY ITS OPPOSITION

TO INTERVENTION AND INJUNCTION

SHOULD NOT BE STRICKEN:

28 U.S.C. 530B, 1652

 

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 (5x)

Attention:  Cathy Catterson

Ninth Circuit Court of Appeals

P.O. Box 193939

San Francisco 94119-3939

CALIFORNIA, USA

 

Lynne Meredith

c/o P.O. Box 370

Sunset Beach 90742

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

Tax Division, 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, #3314

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:   May 28, 2002 A.D.

 

Signed:  /s/ Paul Andrew Mitchell

         ______________________________________________

Printed: Paul Andrew Mitchell, Private Attorney General


 

 

 

 

 

 

 

 

 

 

Attachment “A”:

 

Letter from Gretchen M. Wolfinger,

Attorney, Appellate Section,

U.S. Department of Justice,

Tax Division,

Washington, D.C.

 

Dated:  May 21, 2002