Paul Andrew Mitchell, B.A., M.S.
Private Attorney General
c/o 40960 California Oaks Road
Box 281
Murrieta 92562
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. )
--------------------------------)
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
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
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