United States District Court, District of Columbia
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE.
McNeil fashions himself a “21st Century
American Revolutionary.” The target of his revolt is
the federal income tax. And his tactics focus on litigation
against the Internal Revenue Service, specifically its
efforts to collect taxes from him and other individuals who,
for whatever their reasons, feel relieved of their duties as
citizens to file federal income tax returns. In the past
three years, McNeil and a compatriot, Michael Ellis, have
been responsible for the filing of at least 13 duplicative
lawsuits in this district. They have filed six of these suits
themselves. The other seven, including this one, were filed
by individuals who McNeil acknowledges recruiting through his
website. But while these separate suits were ostensibly
brought by new plaintiffs, McNeil openly admits to preparing
the complaints and various court filings in these cases
themselves. All of these suits allege that the IRS is engaged
in a criminal scheme to falsify records associated with
non-filers or to misrepresent the process by which the IRS
assesses their tax liability. Every case has either been
dismissed under the Anti-Injunction Act, 26 U.S.C. §
7421(a), which bars suits that have the effect of interfering
with the collection of taxes, or is still pending. The D.C.
Circuit has affirmed every dismissal that has been appealed.
McNeil and Ellis nevertheless boast that more suits are on
the way. The United States, seeking to stem the tide of
vexatious litigation, has filed a counterclaim in this case
seeking a nationwide injunction barring McNeil and Ellis from
filing additional suits on this subject matter without prior
leave of court, and requiring them to post a copy of the
injunction on their website. For the reasons that follow, the
Court will enter the requested injunction.
person is required to file a federal tax return but fails to
do so, the Internal Revenue Service must prepare a tax return
on that person's behalf. See 26 U.S.C. §
6020. The IRS uses this “substitute for return”
(“SFR”) to calculate and eventually collect the
amount owed. Contending that this process amounts to a
massive criminal conspiracy, Robert McNeil and Mark Ellis
have brought at least six suits, with only minor variations,
in this district over the past three years against the IRS
and various federal officials. See Stanley, et al., v.
Lynch, et al., 17-cv-22 (D.D.C. Jan. 4, 2017);
Ellis, et al. v. Jackson, et al., 16-cv-2313 (D.D.C.
Nov. 18, 2016); Ellis v. Langer, et al., 16-cv-729
(D.D.C. Apr. 15, 2016); Ellis v. Jarvis, et al.,
16-cv-31 (D.D.C. Jan. 6, 2016); McNeil v. Comm'r, et
al., 15-cv-1288 (D.D.C. Aug. 7, 2015); Ellis v.
Comm'r, et al., 14-cv-471 (D.D.C. Mar. 19, 2014).
also maintains a website, to which Ellis frequently
contributes, where he encourages other potential plaintiffs
to file virtually identical suits. The Government has
attached screenshots of the website as exhibits to its Motion
for a Permanent Injunction. See Gov't.'s
Mot. Permanent Injunction (“MPI”), Exs. A-F.
McNeil offers to help would-be plaintiffs by preparing
complaints and other court filings on their behalf. See
id., Ex. C, at 2-3. In total, McNeil asserts that
“we have . . . assisted in the filing of” seven
other lawsuits in this district. Id., Ex. A; see
also DeOrio v. Ciraolo-Klepper, 16-cv-2089 (D.D.C. Oct.
17, 2016); Podgorny v. McMonagle, 16-cv-1768 (D.D.C.
Aug. 30, 2016); McGarvin v. McMonagle, 16-cv-1458
(D.D.C. July 14, 2016); Morris v. McMonagle,
16-cv-1384 (D.D.C. June 27, 2016); Crumpacker v.
Ciraolo-Klepper, et al., 16-cv-1053 (D.D.C. June 6,
2016). Dwaileebe v. Martineau, 16-cv-420 (D.D.C.
Feb. 2, 2016); DePolo v. Ciraolo-Klepper, et al.,
15-cv-2039 (D.D.C. Nov. 18, 2015). This Court consolidated
six of these suits, including the instant case, on October
21, 2016. See Consolidation & Case Mgmt. Order,
16-cv-1053 (D.D.C. Oct. 21, 2016) (consolidating
DeOrio, Podgorny, McGarvin,
Morris, Crumpacker, and
Dwaileebe). Two months later, it dismissed all six
cases under the Anti-Injunction Act. See Op. &
Order, 16-cv-1053 (D.D.C. Dec. 31, 2016).
Court now turns to the Government's counterclaim in this
case, which seeks a permanent injunction against McNeil and
Ellis. Specifically, the Government requests that the Court
permanently enjoin them from filing, without prior leave of
court, any civil action in any United States District Court
that challenges either the IRS's actions with respect to
determining income tax liability under 26 U.S.C. § 6020,
or the Department of Justice's efforts to defend these
actions. See Proposed Order of Permanent Injunction,
16-cv-1053 (D.D.C. Feb. 28, 2017).
all Americans, McNeil and Ellis have a constitutional right
to access the courts. Yet that right “is neither
absolute nor unconditional.” In re Yelverton,
526 B.R. 429, 431 (D.D.C. 2014) (citing In re Green,
669 F.2d 779, 785 (D.C. Cir. 1981)). Federal courts
“have both the inherent power and the constitutional
obligation to protect their jurisdiction from conduct which
impairs their ability to carry out Article III
functions.” Anderson v. D.C. Pubn Defender
Serv., 881 F.Supp. 663, 666 (D.D.C. 1995) (internal
quotation marks omitted). This includes the authority to
issue pre-filing injunctions against litigants who
“continue to abuse the judicial process by filing
frivolous, duplicative, and harassing lawsuits.”
Caldwell v. Obama, 6 F.Supp.3d 31, 49-50 (D.D.C.
2013) (citing Urban v. United Nations, 768 F.2d
1497, 1500 (D.C. Cir. 1985)). Before a court can issue such
an injunction, (1) the affected litigant must be provided
with “notice and an opportunity to be heard, ” or
the chance to “oppose the entry of an order restricting
him before it is entered”; (2) the court must create an
“adequate record for review”; and (3) the court
must “make substantive findings as to the frivolous or
harassing nature of the litigant's actions.”
Gharb v. Mitsubishi Elec. Co., 148 F.Supp.3d 44, 56
(D.D.C. 2015) (quoting In re Powell, 851 F.2d 427,
434 (D.C. Cir. 1988)).
the first step, the requirement of notice and an opportunity
to be heard can be satisfied without a hearing in court, so
long as the affected litigants have an opportunity to contest
the injunction in briefing. See Smith v. Scalia, 44
F.Supp.3d 28, 46 (D.D.C. 2014); Slate v. Am. Broad. Cos.,
Inc., 12 F.Supp.3d 30, 43 n. 7 (D.D.C. 2013);
Sparrow v. Reynolds, 646 F.Supp. 834, 840 (D.D.C.
1986) (holding that a plaintiff who was “usually so
zealous in asserting his rights, ” but who had not
“asked for a hearing at which to contest the
propriety” of the injunction had “waived any due
process objections he might have raised to defendants'
motion”). McNeil and Ellis filed both an answer to the
counterclaim and an opposition to the Government's
subsequent Motion for a Permanent Injunction. In neither
filing did they request a hearing. Accordingly, the Court
finds that the Counterclaim Defendants have been provided
with notice and an opportunity to be heard.
respect to the second and third steps, “[t]o create a
record for review and make findings ‘as to any pattern
constituting harassment' or frivolousness, courts should
consider the number and content of the filings, the
similarity of the filings to previous actions, and
‘whether the litigant is attempting to harass a
particular adversary.'” Gharb, 148
F.Supp.3d at 56 (citing Powell, 851 F.2d at 431). By
their own admission, McNeil and Ellis are directly or
indirectly responsible for bringing more than a dozen
duplicative suits in this district. See MPI, Ex. A
(“To date, we have filed, or assisted in the filing of,
thirteen cases in the U.S. District Court for the District of
Columbia.”); see also supra Part I (providing
specific case names and numbers). As a fellow member of this
Court noted in dismissing one of these suits, the complaints
all share “the same distinctive format and font”
and challenge the IRS's preparation of SFRs for
non-filers. Ellis v. Jarvis, 2016 WL 3072244, at *2
(D.D.C. May 31, 2016). These complaints also explicitly
reference earlier cases brought by-or with the assistance
of-McNeil and Ellis, and purport to be part of a class-wide
effort against the IRS. See, e.g., Compl.,
Crumpacker v. Ciraolo-Klepper, et al., 16-cv-1053
McNeil has boasted on his website that more suits are
Michael Ellis and I appeared as guests on [a talk radio
program]. During the 90 minute interview, we discussed the
purpose of the [then] eleven lawsuits that have been filed in
U.S. District Court for the District of Columbia. Their
purpose is to enjoin the IRS from falsifying its internal and
public-facing records concerning so-called non-filers . . . .
We also discussed the extraordinary actions that the
Department of Justice attorneys, and now the District judges,
have taken to attempt to summarily dismiss those cases. Their
actions are proscribed as crimes . . . . Subsequent
filings will be necessary.
Ex. D (emphasis added). Thus far, he has stayed true to his
word. On November 18, 2016, McNeil and Ellis filed suit
against three federal judges (including this Court) and
various IRS attorneys and officials, asserting that the
judges unlawfully refused to rule in their favor, and that
the IRS continues to unlawfully prepare, falsify, and
misrepresent the preparation of SFRs for non-filers.
See Compl., Ellis, et al. v. Jackson, et
al., 16-cv-2313, at ¶¶ 85-98. (D.D.C. Nov. 18,
2016). They filed suit again on January 4, 2017, once more
challenging the IRS's preparation or alleged
falsification of SFRs, and further contending that the number
of potential plaintiffs is “uncountable” and that
“many more will join” the lawsuit. See
Compl., Stanley, et al. v. Lynch, et al.,
17-cv-22, at ¶¶ 36-37 (D.D.C. Jan. 4, 2017). The
following week, McNeil stated on his website that there are
at least two more “[c]ases in the queue.” MPI,
Ex. A, at 2. Because “this repetitive presentation of
essentially identical claims wastes limited judicial
resources, ” the Court finds that a pre-filing
injunction is appropriate. Davis v. United States,
569 F.Supp.2d 91, 99 (D.D.C. 2008) (imposing a pre-filing
injunction against plaintiffs who filed “four
essentially identical suit[s]” against the IRS over
five years); see also Caldwell, 6 F.Supp.3d at 51-53
(entering a pre-filing injunction against the plaintiff after
he filed at least five “meritless” and
“harassing” suits over a period of about four
years); Kaufman v. IRS, 787 F.Supp.2d 27, 36-37
(D.D.C. 2011) (suspending plaintiffs' access to the
court's electronic filing system after they “filed
at least 15 pro se suits in federal district and
bankruptcy courts over the last ten years, almost all of
which have been dismissed”).
harassing nature of these duplicative suits provides another
basis for enjoining McNeil and Ellis. A plaintiff's
“repetitive filings of meritless claims against federal
officials, federal judges and private parties, compounded by
the cycle of adding on as new defendants each federal judge
who has made a decision against the plaintiff, rises to the
level of harassing and vexatiousness to warrant a pre-filing
injunction.” Caldwell, 6 F.Supp.3d at 51;
see also Anderson, 881 F.Supp. at 667 (entering a
pre-filing injunction against a plaintiff who brought
“the same claims against the same defendants”).
McNeil and Ellis have sued DOJ Attorney Ryan McMonagle, IRS
officials Caroline Ciraolo-Klepper and Michael Martineau, and
even the Clerk of the U.S. Court of Appeals for the D.C.
Circuit, Mark Langer, in their personal capacities. They have
also filed suit against federal judges who have ruled against
them. See Compl., Ellis, et al. v. Jackson, et
al., 16-cv-2313 (D.D.C. Nov. 18, 2016); MPI, Ex. B, at 1
(“We are keeping the pressure on the Judges to do the
right thing, which is to invoke their equity jurisdiction,
hear these cases on the merits, and enjoin the fraud . . .
Federal judges are acting in collusion to keep the fraud
alive.”). The Court is mindful that ...