Time: Wed Sep 03 02:10:59 1997
Date: Wed, 03 Sep 1997 02:10:34 -0700
To: Karl Kleinpaste <karl@jprc.com>
From: Paul Andrew Mitchell [address in toolbar]
Subject: DRAFT MOTION FOR REHEARING AND RECONSIDERATION
Cc: [address in toolbar]
[This text is formatted in Courier 11, non-proportional spacing.]
Karl Kleinpaste, Sui Juris
Citizen of Pennsylvania state
c/o general delivery
Penn Hills, Pennsylvania state
In Propria Persona
All Rights Reserved
without prejudice
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF PENNSYLVANIA
Karl Frank Kleinpaste, ) Civil Action No. 97-0884
)
Plaintiff, ) NOTICE OF MOTION AND
) MOTION FOR REHEARING
v. ) AND RECONSIDERATION
)
United States, )
Internal Revenue Service, and )
Gavin Chafin, )
)
Defendants. )
________________________________)
COMES NOW Karl Frank Kleinpaste, Sui Juris, Citizen of
Pennsylvania state, expressly not a citizen of the United States
("federal citizen"), and Plaintiff in the above entitled matter
(hereinafter "Plaintiff"), to submit this, Plaintiff's MOTION FOR
REHEARING AND RECONSIDERATION, in order to petition this
honorable Court to reconsider its ORDER, dated August 27, 1997,
in the instant case, denying Plaintiff's MOTION TO STAY
PROCEEDINGS filed on August 8, 1997 (hereinafter "STAY MOTION").
INCORPORATION OF PLEADINGS
Plaintiff hereby incorporates by reference the STAY MOTION,
also DEFENDANTS' OPPOSITION TO MOTION TO STAY PROCEEDINGS
(hereinafter "OPPOSITION") allegedly filed by Mr. Clarke
Motion for Rehearing and Reconsideration: Page 1 of 8
("Clarke"), and also Plaintiff's REBUTTAL to Clarke's OPPOSITION,
as if all were set forth fully herein.
Plaintiff addresses this Court's ORDER of August 27, 1997,
denying Plaintiff's STAY MOTION, as having been in error for the
following specific reasons, to wit:
DENYING STAY MOTION FORCES COURT
TO PROCEED OUT OF ORDER
Such a denial is out of order, because the questions already
raised by Plaintiff's STAY MOTION are critical to the
determination of fundamental issues of appearance,
representation, and standing. The controlling and requisite
credentials requested by Plaintiff are necessary to establish, as
a matter of law, the propriety and validity of representations
already claimed by Mr. Clarke.
Plaintiff hereby formally rebuts all presumptions which
assume the existence of the requisite credentials and of the
requisite statutory authorities. Plaintiff denies that the
requisite credentials and that the requisite statutory
authorities exist in the first instance.
The proponent of specific rules carries the burden of
proving their application in the instant case. See 5 U.S.C.
556(d). The "rules" in question are the Powers of Attorney, if
any, to represent Defendants Internal Revenue Service and Chafin,
and the Oath of Office, Appointment Affidavit, and Delegation of
Authority required to demonstrate, as a matter of law, that
Clarke is duly appointed to the Office of United States Attorney,
to which Congress has delegated authority to represent Defendant
United States.
Motion for Rehearing and Reconsideration: Page 2 of 8
The record exhibits neither the Powers of Attorney, nor the
Oath of Office and Appointment Affidavit, required to demonstrate
lawful authority for any of the Defendants to appear and request
any relief from this honorable Court.
FAILURES TO APPEAR
Plaintiff argues that it is now clear, from the statutory
evidence previously detailed in Plaintiff's STAY MOTION and
REBUTTAL, that neither Defendant IRS, nor Defendant Chafin, has,
in fact, made any proper appearance(s) before this honorable
Court whatsoever.
Moreover, Plaintiff has now demonstrated that IRS is not a
bureau, organization, or department within the United States
Department of the Treasury. See 31 U.S.C. in toto. Therefore,
Plaintiff concludes that Defendant IRS is not entitled to legal
representation by the Office of the United States Attorney.
Similarly, neither is Defendant Chafin, alleging to be an
employee of Defendant IRS, entitled to legal representation by
the Office of the United States Attorney. Such representation is
beyond the statutorily defined scope of the Power of Attorney
which Congress has conferred upon the Office of the United States
Attorney at 28 U.S.C. 547. See also 31 U.S.C. in toto.
Title 28 of the United States Code ("U.S.C.") has been
enacted into positive law. See 1 U.S.C. 1 et seq. for rules
applicable to prima facie and conclusive evidence of law.
Given the lack of appearances and the lack of representation
by at least two of the named Defendants (IRS and Chafin), it is
impossible for Plaintiff properly to respond to Clarke's MOTION
TO DISMISS, as indicated by the Court in its ORDER of August 27,
Motion for Rehearing and Reconsideration: Page 3 of 8
1997, because Plaintiff cannot even know to whom Plaintiff would
be responding. Lex non cogit impossibilia.
If Clarke is not duly appointed to the Office of the United
States Attorney, Plaintiff could not have been responding to a
REBUTTAL allegedly submitted by Defendant United States, because
Clarke would enjoy no Power(s) of Attorney to represent said
Defendant in the first instance.
If Plaintiff cannot respond to Defendant United States,
because said Defendant has not submitted a proper REBUTTAL, and
also, if the Court were subsequently to dismiss the instant case
with prejudice, the net result would be contrary to justice, when
default and/or summary judgment(s) would be the more appropriate
action(s), at this point in the instant proceedings.
ABSENT THE REQUISITE CREDENTIALS, THEN
CLARKE HAS MADE NO APPEARANCES FOR UNITED STATES
This point is so fundamental, Plaintiff risks reiterating
key points already made above, in order to demonstrate, once and
for all, that Clarke has yet to prove that Clarke is a duly
authorized employee and attorney within the Office of the United
States Attorney. In light of this demonstrable fact, it is
proper to conclude therefrom that Defendant United States has
still not formally appeared either.
Plaintiff argues that Defendant United States, once
challenged, has not appeared until and unless a duly authorized
officer of the United States Attorney, in the United States
Department of Justice, has submitted into evidence certified
proof of the requisite credentials. See 5 U.S.C. 3331, in chief.
Motion for Rehearing and Reconsideration: Page 4 of 8
By comparison, Plaintiff can be, and is fully, known to the
Court and to all interested party(s), as a Proper Party who has
come and who now comes before this honorable Court directly. On
the other hand, Defendants have had one claim of representation
(for the United States) fail for lack of proof, and two more
claims of representation repudiated by silence now verified by
Plaintiff, under penalty of perjury, under 28 U.S.C. 1746(1).
This Court, and all interested party(s), are able to
identify Plaintiff by virtue of Plaintiff's having appeared
directly before this Court. But none of the named Defendants has
yet made any proper appearances, as a matter of law. This is so,
particularly in light of the fact that the Office of the United
States Attorney has yet to come forth with the credentials of any
of the attorneys [sic] whose names have been listed in Court
documents filed by Clarke to date in the instant case.
Said credentials were requested under the Freedom of
Information Act ("FOIA"), which Act creates a federal cause of
action in the instant case.
The initial administrative deadline for production of
documents requested under the FOIA has already passed;
administrative appeals are now in progress. The deadline for
exhaustion of administrative remedies in the matter of the first
group of FOIA requests is MM/DD/YY, allowing two (2) days of
grace beyond the strict statutory deadline for same.
COURT OF ORIGINAL JURISDICTION OVER FOIA
IS THE DISTRICT COURT OF THE UNITED STATES
Further, it is worthy of close observation that, pursuant to
5 U.S.C. 552(a)(4)(B), the United States District Court lacks
Motion for Rehearing and Reconsideration: Page 5 of 8
original jurisdiction to enforce the FOIA. Plaintiff now argues
that this Court must vacate its previous ORDER dated August 27,
1997, so as to make is procedurally possible for Plaintiff to
invoke the clear judicial remedies which are Plaintiff's right,
upon exhaustion of all administrative remedies in the matter of
the documents which Plaintiff has now requested under the FOIA.
Specifically, Plaintiff enjoys and hereby reserves the right
to enjoin the improper withholding of documents requested under
the FOIA, and to compel production of documents improperly
withheld by the agency(s) in question. Again, see 5 U.S.C.
552(a)(4)(B), in chief.
In the alternative, Plaintiff reserves the procedural right
to transfer the instant case from the United States District
Court ("USDC"), to the District Court of the United States
("DCUS"), pursuant to 28 U.S.C. 1631, to cure this obvious want
of original jurisdiction over the subject matter created by the
Freedom of Information Act.
REMEDY REQUESTED
Wherefore, all premises having been duly considered by this
honorable Court, Plaintiff respectfully requests that this
honorable Court reconsider its ORDER dated August 27, 1997, by
vacating same, and by granting Plaintiff's MOTION TO STAY
PROCEEDINGS, thereby permitting Plaintiff to pursue the federal
cause of action which has arisen from Plaintiff's proper and
timely FOIA requests, and from a failure by the agency(s) in
question timely to produce the documents requested by same.
Motion for Rehearing and Reconsideration: Page 6 of 8
VERIFICATION
I, Karl Frank Kleinpaste, 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 is true and correct, 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.
Dated: September 3, 1997
Respectfully submitted,
______________________________________________
Karl Frank Kleinpaste, Sui Juris
Citizen of Pennsylvania state
(expressly not a citizen of the United States)
Motion for Rehearing and Reconsideration: Page 7 of 8
PROOF OF SERVICE
I, Karl Frank Kleinpaste, Sui Juris, hereby certify, under
penalty of perjury, under the laws of the United States of
America, without the "United States," 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 REHEARING AND RECONSIDERATION
by placing one true and correct copy of said document(s) in first
class U.S. Mail, with postage prepaid and properly addressed to:
R. Scott Clarke
U.S. Department of Justice
c/o P.O. Box 227
Ben Franklin Station
Washington [zip code exempt]
DISTRICT OF COLUMBIA
General Counsel
Internal Revenue Service
1111 Constitution Avenue, N.W.
Washington [zip code exempt]
DISTRICT OF COLUMBIA
Gavin Chafin
Internal Revenue Service
c/o 213 Executive Drive
Cranberry Township [zip code exempt]
PENNSYLVANIA STATE
[See USPS Publication #221 for addressing instructions.]
Dated: September 3, 1997
______________________________________________
Karl Frank Kleinpaste, Sui Juris
Citizen of Pennsylvania state
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
Motion for Rehearing and Reconsideration: Page 8 of 8
# # #
Attachment Converted: "C:\ATTACH\REHEAR.doc"
========================================================================
Paul Andrew Mitchell : Counselor at Law, federal witness
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[This text formatted on-screen in Courier 11, non-proportional spacing.]From ???@??? Wed Sep 03 05:03:56 1997
by pocari-sweat.jprc.com (8.8.5/8.8.5) id BAA23490;
Wed, 3 Sep 1997 01:29:20 -0400
To: Paul Andrew Mitchell [address in toolbar]
Subject: Re: Draft Motion
References: <3.0.3.16.19970903021034.08ef641e@pop5.ibm.net>
From: Karl Kleinpaste <karl@jprc.com>
Date: 03 Sep 1997 01:29:19 -0400
Message-ID: <vxk4t83j780.fsf@pocari-sweat.jprc.com>
OK, I've replaced my text with your updated text. Fixed a typo or
two. Also, fixed a problem (I think) with reference to REBUTTAL and
OPPOSITION: Look at the updated html under FAILURES TO APPEAR, 2nd to
last paragraph, sentence reading, "Plaintiff could not have been
responding to an OPPOSITION". Your text had REBUTTAL there. I didn't
respond to a rebuttal; I wrote the rebuttal, in response to the
opposition. Check the following paragraph, too, please, to make sure
it all makes sense.
I'll be at the office plenty early enough to make final copies and
then head for the courthouse again. 412/683-6033 if you need to tell
me anything at the last instant.
--karl
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