UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

John Henry Ryskamp 9th Cir. Case No. 18-71324

Appellant,
Tax Ct. No 20628-17

Commissioner of Internal Revenue

Appellee.

APPELLANT’S INFORMAL PETITION FOR EN BANC REHEARING

The question in this case is:

What is the Constitutional regime?

The Court’s decision in this case conflicts with Janus v. American Federation of

State, County, and Municipal Employees, Council 31, No. 16-1466, 585 U.S. ___.

Therefore, an en banc rehearing is required to bring this Court into conformity with

the Supreme Court’s holding. As pointed out in filings in this case, Justice Kagan

clearly states the import of Janus: it removes the scrutiny regime as the

Constitutional regime. She also notes that Janus is a tax case.

This Court states, in its Memorandum, that “the letter…was not a notice of

deficiency or a notice of determination.” However, that judgment is based on the

9th Cir. Case No. 18-71324 Page 2

Court’s finding that the letter was promulgated pursuant to the scrutiny regime—and

that is true. The letter could not have been promulgated pursuant to any other

regime—it was issued before the Janus opinion was issued, and yet the scrutiny

regime is defunct, as Justice Kagan points out. Therefore, the letter cannot have

validity, since, whatever is the Constitutional regime now, the letter was

promulgated pursuant to law which is no longer good law. As a matter of Fifth

Amendment due process, it is not a valid letter, and the Commissioner cannot issue

it or act on it. Whatever its validity at the time it was issued, it was invalidated by

Janus. And the Court is maintaining that the letter is not a notice of deficiency or a

notice of determination because it conflicts with the Court’s reading of the Code

under the scrutiny regime. The Court applied the wrong law to the letter. Stop

applying any scrutiny regime doctrines to this case. Nothing remains of the scrutiny

regime.

The burden is on the Commissioner to issue a letter which conforms to the

requirements of the Janus Constitutional regime. What is the Constitutional regime

promulgated by Janus? That is obviously a question of overriding national

importance, because the Constitutional regime governs all power exercised by the

United States, including the tax power. I am requesting an order from this Court
9th Cir. Case No. 18-71324 Page 3

setting out the Janus Constitutional regime and ordering the Commissioner to

comply with it in my case.

There is another reason for the Court to grant an en banc rehearing. The Court says

in the Memorandum that “Ryskamp’s…substantive due process arguments do not

confer jurisdiction on the Tax Court.” That is based on the idea that those arguments

conflict with the scrutiny regime. But the scrutiny regime is no longer good law.

Actually, my arguments do follow directly from Janus. The argument used in the

instant appeal is the argument derived from West Virginia v. Barnette, that an

individually enforceable right is a fact of human experience, which, history

demonstrates, is unaffected by assaults upon it. It is a robust, resilient and recurrent

fact of human experience. I alleged that housing, for just one example, is such a fact

and right, and that maintenance of housing had to be enforced before the letter could

be issued by the Commissioner.

The Barnette argument is used in a case currently before this Court, namely, Juliana

v. United States, No. 18-36082. See Answering Brief of Plaintiffs-Appellees, pp.

40-50. These pages are attached to this petition. This argument from history appears

in the Juliana litigation for the first time in the Answering Brief for a very good

reason: the attorneys did not think of using the argument from Barnette until I
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suggested it to them. As for this Court’s notion in the Memorandum that my

substantive due process arguments do not confer jurisdiction on the Tax Court, the

Juliana attorneys cite Obergefell, which, as is well known, is famous for invoking

Barnette. This is just one reason the Court should grant an en banc rehearing in this

case in order to bring this case into conformity with Juliana. Juliana and the instant

appeal are proceeding on the same argument, entirely within the new Janus

Constitutional regime. By the way, the Government’s response to the argument from

history is particularly weak—it is obvious the Government was caught off guard by

the Juliana attorneys’ invocation of history. What is the reason the test for a right—

derived from Barnette—is suddenly coming into prominence? It is obvious: the

scrutiny regime is not the Constitutional regime anymore, and this Court, and other

Courts, need to articulate the black letter law, multi-pronged test of the new regime,

so litigants can use it to argue cases. The race is on to determine what this new test

is.

But there is a far more important reason for the Court to consider the Barnette

argument: it forms the basis for the Janus decision. Among the many insights

contained in Justice Kagan’s dissent, she notes that Janus is a tax case. The notice

in Janus is a notice of determination for purposes of tax law—as I pointed out. The

Court simply ignored this in the Memorandum. Justice Kagan doesn’t like it at all
9th Cir. Case No. 18-71324 Page 5

that the scrutiny regime has been booted out of power, but she does understand that

it has been done, and how it has been done. She is right—Janus is a tax case. Janus

also finds, for the first time, an individually enforceable protected speech indicium

in taxation. Protected speech is an unchanging fact of human experience, and is

exactly the interest protected in Barnette. Taxation is thus an individually

enforceable right, since individually enforceable protected speech is part of it—I

also argued this. So where did the Court get the erroneous notion that my

“substantive due process arguments do not confer jurisdiction on the Tax Court?”

The Memorandum is just casual laziness on the part of the Court, and an incorrect

assumption that the scrutiny regime is still the Constitutional regime and that there

are no new rights under the Janus regime; it is wrong as a matter of law on both

counts.

John Henry Ryskamp _________________________

Name Signature

1677 Arch Street

Berkeley, California 94709 _________________________

Address Date