UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARK CRUMPACKER, Plaintiff,

v. CAROLINE CIRAOLO-K LEPPER, et al.,

Defendants. Case No. 1:16-cv-01053 (CRC)

UNITED STATES OF AMERICA Counterclaim Plaintiff,

v. MARK CRUMPACKER, et al.,

Counterclaim Defendants

MEMORANDUM OPINION

Robert McNeil fashions himself a “21 st Century American Revolut ionary.” The target of

his revolt is the federal inc ome 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 rel ieved of their duties as citize ns 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 dup licative lawsuits i n this district. T hey have filed si x of these suits themselves. The other seven, inc luding this one, were filed by individuals who McNeil acknowledges recruiting through hi s website. But while these s eparate suits were ostensibly brought by new plaintiffs, McNeil openly admits to preparing th e complaints and various court filings in these cases themselve s. All of these suits allege t hat the IRS is engaged in a criminal scheme to falsify records asso ciated with non-filers or to misr epresent the process by which the2 IRS assesses their tax liabilit y. Every case has either been d ismissed under the Anti-Injunction Act, 26 U.S.C. § 7421(a), which bars s uits that have the effect of interfering with the collection of taxes, or is still pending. The D.C. Circuit has affirmed e very 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 f iled a counterclaim in this case seeking a nationwide injuncti on barring McNeil and Ellis from f iling additional suits on this subject matter without prior l eave of court, and requiring them to post a copy of the injunction on

their website. For the reasons t hat follow, the Court will ent er the requested injunction. 1

I. Background When a person is required to file a federal tax return but fail s to do so, the Internal Revenue Service must prepare a tax return on that person’s beha lf. See 26 U.S.C. § 6020. The

IRS uses this “subst itute for return” (“ SFR”) to calculate and eventually collect the amount owed. Contending that this proce ss amounts to a massive crimin al 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 IR S 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. Co mm’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). McNeil also maintains a website, to which Ellis frequently cont ributes, where he encourages other potential plai ntiffs to file virtually identic al suits. The Government has

1 The Government also requests th at the Court enjoin the named P laintiff in this case, Mark Crumpacker. Because Mr. C rumpacker has only participated in this one suit, the Court declines to do so.3 attached screenshots of the web site as exhibits to its Motion f or a Permanent Injunction. See Gov’t.’s Mot. Permanent Injunc tion (“MPI”), Exs. A–F. McNeil o ffers to help would-be plaintiffs by preparing complaints and other court filings on t heir behalf. See id., Ex. C, at 2–3. In total, McNeil asserts that “we have . . . assisted in the fi ling of” seven other lawsuits in this district. Id., Ex. A; see als o DeOrio v. Ciraolo-Klepper, 16-c v-2089 (D.D.C. Oct. 17, 2016); Podgorny v. McMonagle, 16-cv-1768 (D.D.C. Aug. 30, 2016); McGar vin v. McMonagle, 16-cv1458 (D.D.C. July 14, 2016); Morris v. McMonagle, 16-cv-1384 (D .D.C. June 27, 2016); Crumpacker v. Ciraolo-Klepper, e t al., 16-cv-1053 (D.D.C. June 6, 2016). Dwaileebe v. Martineau, 16-cv-420 (D.D.C. F eb. 2, 2016); DePolo v. Ciraolo-K lepper, et al., 15-cv-2039 (D.D.C. Nov. 18, 2015). This Court c onsolidated six of these s uits, 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, McG arvin, Morris, Crumpacker, and Dwaileebe). Two months later, it dismissed all six cases under the Anti-Injunct ion Act. See Op. & Order, 16-cv1053 (D.D.C. Dec. 31, 2016).

The Court now turns to the Gove rnment’s counterclaim in this ca se, which seeks a permanent injunction against McN eil and Ellis. Specifically, t he Government requests that the Court permanently enjoin them from filing, without prior leave of court, any civil action in any

United States District Court tha t challenges either the IRS’s a ctions 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).

II. Discussion Like all Americans, McNeil and E llis have a constitutional righ t to access the courts. Yet that right “is neither absolute nor unconditional.” In re Yelv erton, 526 B.R. 429, 431 (D.D.C.4 2014) (citing In re Green, 669 F.2d 779, 785 (D.C. Cir. 1981)). Federal courts “have both the inherent power and the constitu tional obligation to protect the ir jurisdiction from conduct which impairs their ability to carr y out Article III functions.” And erson v. D.C. Pubn Defender Serv., 881 F. Supp. 663, 666 (D.D.C. 1995) (internal quotation marks o mitted). This includes the authority to issue pre-filing inj unctions against litigants who “continue[] to abuse the judicial process by filing frivolous, dup licative, and harassing lawsuit s.” Caldwell v. Obama, 6 F. Supp. 3d 31, 49–50 (D.D.C. 2013) (citing Ur ban v. United Nations, 768 F.2d 1497, 1500 (D.C. Cir. 1985)). Before a court can issu e such an injunction, (1) the a ffected litigant must be provided with “notice and an opportunity to b e heard,” or the chance to “oppose the entry of an order restricting him before it is enter ed”; (2) the court must creat e an “adequate reco rd for review”; and (3) the court must “make subs tantive findings as to the fri volous or harassing nature of the litigant’s actions.” Gharb v. M itsubishi Elec. Co., 148 F. Sup p. 3d 44, 56 (D.D.C. 2015) (quoting In re Powell , 851 F.2d 427, 434 (D.C. Cir. 1988)). Regarding the first step, the requirement of notice and an opp ortunity to be heard can be satisfied without a hearing in c ourt, so long as the affected l itigants have an opportunity to contest the injunction in br iefing. 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) (holdi ng that a plaintiff w ho was “usually so zealous in asserting his rights,” but who ha d 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 counter claim and an opposition to the Government’s subsequent Motion for a Permanent Injunction. In neither filing did they request a hearing. Accordingly, the Court fi nds that the Counterclaim De fendants have been provided5 with notice and an opport unity to be heard. With respect to the second and thi rd steps, “[t]o create a rec ord for review and make findings ‘as to any pattern consti tuting harassment’ or frivolo usness, courts should consider the number and content of the filings, the similarity of the filing s to previous actio ns, 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 E llis are directly or indirectly responsible for bringing more t han a dozen duplicative suits in this district. See MPI, Ex. A (“To date, we have filed, or assisted in the filing of, thirteen cas es in the U.S. Distr ict Court for the District of Columbia.”); see al so supra Part I (providing speci fic case names and numbers). As a

fellow member of this Court not ed in dismissing one of these su its, the complaints all share “the same distinctive format and font” and challenge the IRS’s prepa ration 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 assis tance of—McNeil and Ellis, and purport to be part of a class-wi de effort against the IRS. See , e.g., Compl., Crumpacker v. Ciraolo-Klepper, et al., 16-cv-1053 ¶¶ 1–4. Moreover, McNeil has boasted on h is website that more suits ar e forthcoming: 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 r ecords concerning socalled non-filers . . . . We also discussed the extraordinary a ctions that the Department of Justice attorneys, and now the District judges, h ave taken to attempt to summarily dismiss those cases. Their actions are proscribed as crimes . . . . Subsequent filings will be necessary

. MPI, Ex. D (emphasis added). Thus far, he has stayed true to h is word. On November 18, 2016, McNeil and Ellis filed suit against three federal judges (inclu ding this Court) and various IRS attorneys and officials, asserti ng that the judges unlawfully r efused to rule in t heir favor, and that6 the IRS continues to unlawfull y prepare, falsify, and misrepres ent the preparation of SFRs for non-filers. See Compl., Ellis, et al. v. Jackson, et al., 16-c v-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 falsifi cation of SFRs, and further conte nding 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, a t ¶¶ 36–37 (D.D.C. Jan. 4, 201 7). 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 presen tation of essentially identical claims wastes limited judicial resources,” the Court finds th at a pre-filing injunction is app ropriate. Davis v. U nited States, 569 F. Supp. 2d 91, 99 (D.D.C. 2008) (impos ing a pre-filing injunct ion against plaintiffs who filed “four[] essentially identical su it[s]” against the IRS over fiv e years); see also Caldwell, 6 F. Supp. 3d at 51–53 (entering a pre-f iling injunction against the plaintiff after he f iled at least five “meritless” and “harassing” suits over a period of about four y ears); 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”). The harassing nature of these dupl icative suits provides anoth er basis for enjoining McNeil and Ellis. A plaintiff’s “repetitive filings of meritle ss claims against federal officials, federal judges and private pa rties, compounded by the cycle of adding on as new defendants each federal judge who has made a deci sion against the plaintiff, ri ses 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 (enteri ng a pre-filing injunction against a plaintiff who brought “the same claims against the sam e defendants”). McNeil and Ell is have sued DOJ Attorney7 Ryan McMonagle, IRS officials Ca roline Ciraolo-Klepper and Mich ael Martineau, and even the Clerk of the U.S. Court of Appeals for the D.C. Circuit, Mark L anger, in their personal capacities. They have also filed s uit against federal judges w ho have ruled against them. See Compl., Ellis, et al. v. Jackson, e t al., 16-cv-2313 (D.D.C. No v. 18, 2016); MPI, Ex. B, at 1 (“We are keeping the pressure on t he Judges to do the right thing, w hich is to invoke their equity jurisdiction, hear these cases on the merits, and enjoin the fr aud . . . Federal judges are acting in collusion to keep the fraud alive. ”). The Court is mindful tha t pre-filing injunctions should “remain very much the exception t o the general rule of free acc ess to the courts.” Powell, 851 F.2d at 431. In this case, however, t he Court is well satisfie d that it has before it an adequate record to determine the propr iety of a pre-filing injunction, a nd that such an exceptional measure

is warranted.

III. Conclusion For the foregoing reasons, the C ourt finds that McNeil and Ell is’s repeated filings of meritless complaints in this district is vexatious, harassing, and “imposes an unwarranted burden on the orderly and expeditious adm inistration of justice.” Cal dwell, 6 F. Spp. 3d at 52 (quoting Urban, 768 F. 2d at 1500). Accordingly, while the Court declin es to enjoin named plaintiff Mark Crumpacker, it will grant the G overnment’s motion for a nationw ide pre-filing injunction against Robert McNeil and Mark Ellis. A separate Order of Permanent In junction accompanies this Memorandum Opinion.

________________________ CHRISTOPHER R. COOPER United States District Judge Date: