Petition for Writ of Certiorari — Peter P. Mitrano, Petitioner v. United States, et al.
Supreme Court briefOct 19, 2018
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IN THE
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tJ.S.
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October Term, 2018
PETER P. MITRANO,
Petitioner,
V.
UNITED STATES OF AMERICA and
KERI A. ADORISIO,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the
Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
Peter P. Mitrano
Prose
10825 Fieldwood Drive
Fairfax, Virginia 22030
Petitioner
October 19, 2018
Sup
OFFICE OF
-
1
Questions Presented for Review
Did the United States Court of Appeals for the Ninth Circuit err
in affirming the dismissal of this action?
Did the United States Court of Appeals for the Ninth Circuit err
in affirming the dismissal of the claim that the custody order issued on
September 27, 2002 by the Lebanon Family Court, in Lebanon, New
Hampshire was void as a matter of law?
i1
Parties to the Proceeding
The caption of this case in this Supreme Court of the United States
contains the names of the parties. The petitioner and respondent Ms. Ken
A. Adorisio are not a parent, subsidiary or affiliate of any company.
111
Table of Contents
Questions Presented
.
i
Parties to Proceedings
.................ii
Table of Authorities
.................iv
Opinions Below
.................1
Jurisdiction
..................2
Statutes Involved
.................2
Statement of the Case .................6
Reasons for Granting the Writ
Conclusion
........7
........................41
Appendices
Opinion of the United States Court of
Appeals for the Ninth Circuit .......A-i
Order of the United States District
Court for the District of
Montana, Great Falls Division ......A-4
lv
Table of Authorities
Arford v. United States, 934 F.2d 229
(9th Cir. 199 1)
................25
Armed Forces of the Islamic Republic
of Iran v. Cubic Def. Sys., 385 F.3d
1206 (9th Cir. 2004)
................36
Beck v. Semones' Admr.,
145 Va. 429, 134 S.E. 667 (1926) .......32
Belly. Hood,
327 U.S. 678 (1946)
................16
Bowen v. Massachusetts,
487 U.S. 879 (1988)
................17
Bryant v. Adventist Health System/ West,
289 F.3d 1162 (9th Cir. 2002)
.......29
Butz v. Economou,
438 U.S. 478 (1978)
................19
Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343 (1988)
................29
Cato v. United States, 70 F.3d 1103
(9th Cir. 1995)
................25
Chang v. Chen, 80 F.3d 1293
(9th Cir. 1996)
................33
Coleman Bros. Corp. v. City of
Franklin, 58 F.Supp. 551 (N.H. 1945) ......32
V
Colorado River Water Conservation
Dist. v. United States,
424 U.S. 800 (1976)
................15
Cohen v. Virginia,
19 U.S. 264 (1821)
................15
Commonwealth v. Coronel, 33 Va.Cir. 110,
1993 WL 946323 (Fairfax, Va. 1993) ......32
Craterv. Galaza, 508 F.3d 1261
(9th Cir. 2007)
................32
D.C. Court of Appeals v. Feldman,
460 U.S. 462 (1983)
................31
Dugan v. Rank,
372 U.S. 609 (1963)
................17
Elliott v. Peirsol's Lessee,
26 U.S. 328 (1828)
........... 31-32, 36
England v. Louisiana State Bd. of
Medical Examiners,
375 U.S. 411 (1964)
................15
Exparte Siebold, 100 U.S. 371 (1879) .....32
Exparte Young, 209 U.S. 123 (1908) ...... 15
Exxon Mobil Corp. v. Saudi Basic
Industries, 544 U.S. 280 (2005)
Frank v. Mangum,
237 U.S. 309 (1915)
.......31
................32
-
Vi
Goland v. Central Intelligence Agency,
197 U.S.App.D.C. 25, 607 F.2d 339
(D.C. 1978) certiorari denied
445 U.S. 927 (1980)
................36
Golden State Transit Corp. v. City of Los
Angeles, 493 U.S 103 (1989) ............17
Gomez v. Toledo, 446 U.S. 635 (1980) .....19
Gonzalez v. United States, 284 F.3d 281
(1st Cir. 2002)
................18
Hawes v. Network Solutions,
337 F.3d 377 (4th Cir. 2003) .........15-16
Harlow v. Fitzgerald, 457 U.S. 800 (1982)
..
19
In re Gruntz, 202 F.3d 1074
(9th Cir. 1999)
................31
In re Sonus Network, Inc., Shareholder
Derivative Litigation,
499 F.3d 47 (1st Cir. 2007) ............19
In the Matter of Walker Walker v.
Internal Revenue Service,
No. CIV 02-2504-PHX-SMM,
92 A.F.T.R.2d 2003-6494,2003
WL 22474836 (Arizona Sept. 26, 2003).....37
Jerome B. Grubart, Inc. v. Great
Lakes Dredge & Dock Co.,
513 U.S. 527 (1995)
................35
vii
Kalb v. Feuerstein, 308 U.S. 433 (1940). 36-37
.
Laird v. Tatum,
408 U.S. 1(1972)
21, 22, 23, 24
Lopez v. Smith, 203 F.3d 1122
(9th Cir. 2000)
................ 33
MacKay v. Pfeil, 827 F.2d 540
(9th Cir. 1987)
................32
Midwest Coast Transport v. United States,
125 F.Supp. 557 (S.Dakota 1954) ........17
National Federation of Independent Business
v. Sebelius, 567 U.S. 519 (2012)
.......27
NL Indus., Inc. v. Kaplan, 792 F.2d 896
(9th Cir. 1986)
................28
Ohio Nat'l Life Ins. Co. v. United States,
922 F.2d 320 (6th Cir. 1990) ...........18
Olson Farms, Inc. v. Barbosa,
134 F.3d 933 (9th Cir. 1998) ............ 32
Parkerv. Levy, 417 U.S. 733 (1974) .......25
Rankin v. Howard, 633 F.2d 844
(9th Cir. 1980) certiorari denied
Zellarv. Rankin, 451 U.S. 939 (1981) ......32
Robishaw Engineering, Inc. v. United States,
891 F.Supp. 1134 (Va. 1995) ............ 17
viii
Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923)
................31
Safe Air for Everyone v. Meyer, 373 F.3d 1035
(9th Cir. 2004)
................17
Scheuerv. Rhodes, 416 U.S. 232 (1974)
...
17
Slaughter v. Commonwealth, 222 Va. 787,
284 S.E.2d 824 (1981) .................32
Steel Co. v. Citizens for Better Environment,
523 U.S. 83 (1998)
..............14-15
Steffelv. Thompson, 415 U.S. 452 (1974).. 28
.
Sullivan v. Tarope, Nos. 03-0018-GA,
98-1293, 98-1294, 98-1295,
2006 WL 1109449 (Supreme Court
of the Commonwealth of the Northern
Mariana Islands April 18, 2006)
.......37
The Betsey, 3 U.S. 6 (1794) ............37
Thomas v. Am, 474 U.S. 140 (1985), rehearing
denied 474 U.S. 1111 (1986) .........34, 35
Thos. P. Gonzalez Corp. v. Consejo
Nacional De Produccion De Costa Rica,
614 F.2d 1247 (9th Cir. 1980)
.......37
Uffnerv. La Reunion Francaise, S.A.,
244F.3d38(lstCir. 2001) ............30
Ix
United States v. Banks, 539 F.2d 14
(9th Cir. 1976)
................22
United States v. Chon, 210 F.3d 990
(9th Cir. 2000)
................22
United States v. Dreyer, 804 F.3d 1266
(9th Cir. 2015) (en banc)
.........21-24
United States v. Mitchell,
463 U.S. 206 (1983)
................30
United States v. Park Place Assocs.,
563 F.3d 907 (9th Cir. 2009) ............25
United States v. Ritchie, 15 F.3d 592
(6th Cir. 1994)
................18
United States v. Walden, 490 F.2d 372
(4th Cir. 1974)
................24
West Virginia Oil and Natural Gas
Ass'nv. Wooten, 631 F.Supp.2d
788 (W.Va. 2008)
................37
Wolfe v. Strankman, 392 F.3d 358 (9th Cir.
2004)
17
Worldwide Church of God v. McNair,
805 F.2d 888 (9th Cir. 1986) ............31
x
Other Authorities:
Act of June 18, 1878, ch. 263,
20 Stat. 152 (1878)
................21
Affirmative Defenses and Rule 12(b)(6):
A Plain Meaning Interpretation,
Michael E. Rosman, New York
Law Journal, December 2012
32 C.F.R. § 213. 10(a)(3) (1982)
20
.......24
7 Congressional Record 4247 (1878) ......24
Constitutional Chaos: What Happens
When the Government Breaks Its
Own Laws, Andrew P. Napolitano .......40
6 C.J.S. Armed Services § 52 .........24-25
Declaratory Judgments, Professor
Borchard Chapter XIII, Administrative
Powers and Disabilities ................17
11 Fed. Prac. & Proc. Civ. § 2862
(3d ed.), Federal Practice & Procedure,
April 2017 Update,
§ 2862 Void Judgment ................36
Forum Selection, 'Rooker-Feldman',
Georgene Vairo, The National Law
Journal, April 25, 2005 ................31
How Many Federal Laws Are There?
No One Knows
................38
xi
How the Government Breaks the Law,
by Andrew P. Napolitano, CATO Policy
Report, November/ December 2004,
Vol. XXVI No. 6
................40
99.8% Conviction Rate In U.S. Federal
Courts Can Make Japanese
Prosecutors Jealous
................39
Record Number Of People Were
Exonerated In 2015 For Crimes
They Didn't Commit
................40
Rule 8(c) of the Federal Rules of
Civil Procedure
................19
Rule 12(b)(1) of the Federal Rules of
Civil Procedure
............6, 13, 18
Rule 12(b)(6) of the Federal Rules of
Civil Procedure
13, 18, 19, 20, 30
Rule 60(b)(4) of the Federal Rules of
Civil Procedure
................37
Rooker-Feldman Doctrine as Applied
to ADA Claims and Property-Related
Claims, West's Supreme Court Reporter,
126 S.Ct. No. 1, pages 24 and 25 .......31
Sovereign Immunity preclusion of
declaratory judgment, of 10 Fed.Proc.,
L.Ed., § 23:52
................16
xii
The Politicization of the FBI by
Joseph E. di Genova, Imprimis, a
publication of Hillsdale College, February
2018, Volume 7, Number 2
...........41
Title 5 United States Code,
Section 702
................17
Title 18 United States Code,
Section 1385
2, 6, 20, 21, 22, 24, 26, 28
.
.
.
.
Title 28 United States Code,
Section 636(b)(1)(C)
................34
Title 28 United States Code,
Section 1254
..................2
Title 28 United States Code,
Section 1367
..............3, 29
Title 28 United States Code,
Section 1653
...............4, 33
Title 28 United States Code,
Section 1738A
................13
Title 28 United States Code,
Section 2201
............5, 20, 29
1 W. Blackstone, Commentaries on the
Laws of England 140 (1765) ............21
1
IN THE
&"41 4 &4 lC&
October Term, 2018
PETER P. MITRANO,
Petitioner,
U.
UNITED STATES OF AMERICA and
KERI A. ADORISIO,
Respondents.
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Ninth Circuit
Peter P. Mitrano respectfully petitions for a writ of certiorari to review
the judgment of the United States Court of Appeals for the Ninth Circuit in
this case.
Opinion Below
The Opinion of the United States Court of Appeals for the Ninth
Circuit (723 Fed.Appx. 518; 2018 WL 2308553) from which petitioner seeks
certiorari appears in the Appendix hereto at page A- 1. The Order of the
United States District Court for the District of Montana, Great Falls Division
(2017 WL 499905) appears in the Appendix hereto at A-4. All lower court
decisions are unreported.
2
Jurisdiction
The Order of the United States Court of Appeals for the Ninth Circuit
was entered on May 22, 2018. (A- 1)On August 30, 2018, The Chief Justice
granted an extension of time until October 19, 2018 to file a petition for writ
of certiorari. This Court's jurisdiction is invoked under Title 28 United
States Code, Section 1254(1).
Statutes Involved
18 U.S.C.A. § 1385
Posse Comitatus Act of 1878
§ 1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by
the Constitution or Act of Congress, willfully uses any part of the Army or
the Air Force as a posse comitatus or otherwise to execute the laws shall be
fined under this title or imprisoned not more than two years, or both.
28 U.S.C.A. § 1254
§ 1254. Courts of appeals; certiorari; certified questions
3
Cases in the courts of appeals may be reviewed by the Supreme Court by
the following methods:
By writ of certiorari granted upon the petition of any party to any civil or
criminal case, before or after rendition of judgment or decree;
By certification at any time by a court of appeals of any question of law
in any civil or criminal case as to which instructions are desired, and upon
such certification the Supreme Court may give binding instructions or
require the entire record to be sent up for decision of the entire matter in
controversy.
28 U.S.C.A. § 1367
§ 1367. Supplemental jurisdiction
(a) Except as provided in subsections (b) and (c) or as expressly provided
otherwise by Federal statute, in any civil action of which the district courts
have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution. Such
supplemental jurisdiction shall include claims that involve the joinder or
intervention of additional parties.
4
(b) In any civil action of which the district courts have original jurisdiction
founded solely on section 1332 of this title, the district courts shall not have
supplemental jurisdiction under subsection (a) over claims by plaintiffs
against persons made parties under Rule 14, 19, 20, or 24 of the Federal
Rules of Civil Procedure, or over claims by persons proposed to be joined as
plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs
under Rule 24 of such rules, when exercising supplemental jurisdiction over
such claims would be inconsistent with the jurisdictional requirements of
section 1332.
(c) The district courts may decline to exercise supplemental jurisdiction over
a claim under subsection (a) if-the claim raises a novel or complex issue of State law,
the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction,
the district court has dismissed all claims over which it has original
jurisdiction, or
in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.
(d) The period of limitations for any claim asserted under subsection (a), and
for any other claim in the same action that is voluntarily dismissed at the
same time as or after the dismissal of the claim under subsection (a), shall
5
be tolled while the claim is pending and for a period of 30 days after it is
dismissed unless State law provides for a longer tolling period.
(e) As used in this section, the term "State" includes the District of
Columbia, the Commonwealth of Puerto Rico, and any territory or
possession of the United States.
28 U.S.C.A. § 1653
§ 1653. Amendment of pleadings to show jurisdiction
Defective allegations of jurisdiction may be amended, upon terms, in the
trial or appellate courts.
28 U.S.C.A. § 2201
Declaratory Judgment Act
§ 2201. Creation of remedy
(a) In a case of actual controversy within its jurisdiction, except with
respect to Federal taxes other than actions brought under section 7428 of
the Internal Revenue Code of 1986, a proceeding under section 505 or 1146
of title 11, or in - any civil action involving an antidumping or countervailing
duty proceeding regarding a class or kind of merchandise of a free trade
6
area country (as defined in section 516A(f)(10) of the Tariff Act of 1930), as
determined by the administering authority, any court of the United States,
upon the filing of an appropriate pleading, may declare the rights and other
legal relations of any interested party seeking such declaration, whether or
not further relief is or could be sought. Any such declaration shall have the
force and effect of a final judgment or decree and shall be reviewable as
such.
(b) For limitations on actions brought with respect to drug patents see
section 505 or 512 of the Federal Food, Drug, and Cosmetic Act, or section
351 of the Public Health Service Act.
Statement of the Case
This petition for writ of certiorari arises from the dismissal pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure by the United States
Court of Appeals for the Ninth Circuit (hereinafter sometimes referred to as
the "Ninth Circuit") of a an action brought under the Posse Comitatus Act of
1878, 18 U.S.C.A. § 1385 and a request to declare a judgment void as a
matter of law that was interfering with petitioner's secret security clearance
with the United States government. The petitioner, Peter P. Mitrano, was
employed as a civil engineer for the United States of America by and
through the Department of the Air Force at Malmstrom Air Force Base in
7
Montana. Mitrano was with the Global Strike Command (nuclear missiles)
of the Department of the Air Force.
On January 25, 2016, while Mitrano was lawfully employed on
Malmstrom Air Force Base in Montana, the United States of America by and
through the Department of the Air Force violated the Posse Comitatus Act of
1878, Title 18 of the United States Code, Section 1385 by and through the
use of heavily armed uniformed military personnel. Mitrano was removed
from Malmstrom Air Force Base under the direction and control of said
heavily armed uniformed military personnel.
Prior to said employment of Mitrano, Mitrano had been the victim of a
void child custody order issued on September 27, 2002 by the Lebanon
Family Court, in Lebanon, New Hampshire.
Reasons for Granting the Writ
1.
Did the United States Court of Appeals for the Ninth Circuit err
in affirming the dismissal of this action?
This action arises from the petitioner, Peter P. Mitrano's employment
as a civil engineer for the United States of America, Department of the Air
Force, Global Strike Command at Malmstrom Air Force Base in Montana.
See paragraph number 8 of the complaint filed before United States District
Court (hereinafter "J_").
On January 14, 2016, Mitrano was issued a
Common Access Card by the United States of America, by and through the
Department of the Air Force, Global Strike Command, Malmstrom Air Force
Base, Montana. (J15) Said Common Access Card (or Federal Government
identification card) granted Mitrano lawful access to said Malmstrom Air
Force Base without an escort.
(J17) On January 25, 2016, Mitrano was
again lawfully admitted onto said Malmstrom Air Force Base after producing
Mitrano's Common Access Card (CAC) just as Mitrano had been lawfully
admitted onto said Malmstrom Air Force Base on January 15, 2016;
January 19, January 20, 2016; January 21, 2016; and, January 22, 2016.
(J18) While Peter P. Mitrano (herein sometimes referred to as "Mitrano")
was working on said Malmstrom Air Force Base, Peter P. Mitrano was
directed to report to Building 1191 at Malmstrom Air Force Base, Montana
very shortly before 4:00 P.M. on January 25, 2016. Mitrano reported to
Building 1191 as directed. Immediately thereafter, in short order under the
threat of the immediate and overbearing presence of the giant-sized military
police overly armed with weapons (large automatic rifle and/or machine
gun, etc.), (1) Mitrano was presented with a Memorandum for Mr. Peter P.
Mitrano signed by the respondent, Keri A. Adorisio, and instructed to sign
said Memorandum for Mr. Peter P. Mitrano, (2) Mitrano was also directed by
the respondent, Keri A. Adorisio to return his CAC (Common Access Card);
and, then (3) Mitrano was directed by the respondent, Keri A. Adorisio and
said military police off of said Malmstrom Air Force Base, Montana and then
9
escorted and followed by said military police off of said Malmstrom Air Force
Base, Montana. (J19) Mitrano is a valuable team member of the
Department of the Air Force Global Strike Command, at Malmstrom Air
Force Base, Montana. (1J23) The absence of Mitrano from his employment
since January 25, 2016 (and continuing as of the date of this document) is
negatively affecting the mission of the Department of the Air Force Global
Strike Command, at Malmstrom Air Force Base. (J24) Other issues
concerning Mitrano's security clearance and the right to access to the
location of Mitrano's employment at the Global Strike Command,
Malmstrom Air Force Base, Montana with the United States of America have
arisen as a result of a custody order issued on September 27, 2002 by the
Lebanon Family Court, Lebanon in the State of New Hampshire in the
United States of America. (37) Mitrano contends said custody order
issued on September 27, 2002 by the Lebanon Family Court, Lebanon, New
Hampshire is void as a matter of law. (38)
Said Lebanon Family Court ruled on April 26, 2001 as follows:
"THE COURT: Given the unusual circumstances of this
case, your being pro se as an attorney and there's been
overreaching on your part throughout this relationship on all
the evidence presented to the court, I'm going to ask you to
address the court with regard to any questions you might have
10
and I'll inquire of Ms. Kelly if I think it appropriate, but the
Court would find in lieu of this case that she sought safe harbor
in Norwich under exigent circumstances and at no time
abandoned her home and residency here in the State of New
Hampshire.
"MR. MITRANO: I object to that ruling, but may I ask
questions?
"THE COURT: What questions would you like to
-
you
may address the court only. Ms. Kelly, you may step down with
your counsel if you'd like.
"MR. MITRANO: The first question is when did Virginia
Kelly inquire as to the Vermont house?
"MR. MITRANO: But I want to establish the factual basis
which I think have been inaccurately represented by Attorney
Warshell. I'd like to establish when she was living in Vermont.
"THE COURT: Why don't you make an offer, as you
understand it to be?
11
"MR. MITRANO: My offer of proof is, as I stated it in my
motion to dismiss for lack of subject matter jurisdiction, that
she was living in Vermont with the children for certain time
periods.
. . ."
(Pages 70-72 of Transcript of a Hearing on April
26, 2001 before the Lebanon Family Court)
"MR. MITRANO:
.
.
.
I believe I have a right to cross-
examination as to finances and statements she's made
concerning where she was living and also the standard of living
that she states she was accustomed to and what relevance that
has to the children. There's a number of issues that I think I
have a right under the law to confront a witness. It's a State
and Federal right to confront the witnesses, and that's being
denied to me and I object previously that I'm being denied my
right to and/or an opportunity to confront the witnesses." (Page
84 of Transcript of a Hearing on April 26, 2001 before the
Lebanon Family Court) (1J47)
The facts are that on April 26, 2001, the Lebanon Family Court
refused to allow Mitrano an opportunity to cross-examine Virginia Kelly
12
because as the Lebanon Family Court stated Mitrano was a "pro se as an
attorney and there's been overreaching on your part throughout this
relationship on all the evidence presented to the court". (T 48) Mitrano was
also denied the right to complete his testimony during a hearing before the
Lebanon Family Division Court in the State of New Hampshire on
September 27, 2002:
"MR. MITRANO:
.
.
.
Under the Virginia order, which was
in place at the time, I was the primary
-
I had primary
responsibility for the children during the week. Virginia had
visitation rights.
"THE COURT: I'm not going to debate that any further.
Why don't you step down, Mr. Mitrano.
"MR. MITRANO: I have additional testimony, Your Honor.
"THE COURT: From whom?
"MR. MITRANO: From me. I have additional things to say
about this
.
.
.
if I may have the Court's indulgence?
13
"THE COURT: Mr. Mitrano, I'd ask you to step down and
go to counsel table, please.
"MR. MITRANO: Note my objection to not allowing me to
finish testifying.
"THE COURT: The Court is going to rule that Mr. Mitrano
continues to feel the Court is without subject matter
jurisdiction, and thus is not willing to comply with the rulings of
the Court or the rules of the Family Division."
See Tr. of Hearing, pp. 149-150, State of New Hampshire, Grafton
County Family Court, September 27, 2002. (T49) The Lebanon State court
also denied Mitrano's request to cross-exam the guardian ad litem, Deborah
Blake. (T50) When the proceedings were begun by Ms. Virginia L. Kelly in
New Hampshire, Ms. Kelly resided in Vermont and the original orders
issued by the State of New Hampshire were ex parte. (1J53) On or before
October 1, 2000, Virginia L. Kelly moved into the State of Vermont and
remained in Vermont through at least February 2001. (J54) At the end of
the day of December 20, 2000, there was no contestant (as defined by Title
28 U.S.C., § 1738A) living in the State of New Hampshire. The Lebanon
Family Court in Lebanon, New Hampshire issued an ex parte order
14
temporarily removing Mitrano's daughter from Mitrano's primary custody on
or about October 16, 2000. (J59) The Lebanon Family Court in Lebanon,
New Hampshire issued an ex parte order temporarily removing Mitrano's
sons from Mitrano's primary custody on or about January 3, 2001. (J60)
Before the District Court for the District of Montana respondents filed
a motion to dismiss that states it was filed pursuant to Rules 12(b)(1) (lack
of subject-matter jurisdiction) and 12(b)(6) (failure to state a claim upon
which relief can be granted) of the Federal Rules of Civil Procedure. The
District Court ruled that Mitrano's complaint is "dismissed for lack of
subject matter jurisdiction." See Order from the District Court filed
February 7, 2017 (A7) wherein it is stated in part that:
"Plaintiff's Complaint (Doc. 1) is DISMISSED for lack of
subject matter jurisdiction."
Mitrano relies upon the complaint filed before the District Court. Note
Article III, Section 2 of the United States Constitution provides in part that:
"The Judicial Power shall extend to all cases in law and
equity arising under this Constitution, the laws of the United
States
.
.
be a party.
.
to controversies to which the United States shall
.
.
."
(Bold emphasis added.)
15
Thus, relying upon the words of the Constitution of the United States,
federal-subject-matter jurisdiction exists in this case. As this Court is
aware, there is judge-made law that contradicts the above-quoted words of
the Constitution of the United States; namely that the sovereign immunity
actually takes away federal-subject-matter jurisdiction. Also see Steel Co.
v. Citizens for Better Environment, 523 U.S. 83, 89 (1998) wherein the
Supreme Court stated in part that:
cc C
Jurisdiction
.
.
.
is not defeated
.
.
.
by the
possibility that the averments might fail to state a cause of
action on which petitioners could actually recover.'
Dismissal for lack of subject-matter jurisdiction because of the
inadequacy of the federal claim is proper only when the claim is
'so insubstantial, implausible, foreclosed by prior decisions of
this Court, or otherwise completely devoid of merit as not to
involve a federal controversy." (Citations omitted.)
Also see Ex parte Young, 209 U.S. 123, 143 (1908) wherein the Supreme
Court quoted Chief Justice Marshall from Cohen v. Virginia, 19 U.S. 264,
404 (1821) stating:
16
.We have no more right to decline the exercise of
jurisdiction which is given, than to usurp that which is not
given.
The one or the other would be treason to the
Constitution
.
.
Also note England v. Louisiana State Bd. of Medical Examiners, 375 U.S.
411, 415 (1964) ("When a Federal court is properly appealed to in a case
over which it has by law jurisdiction, it is its duty to take such jurisdiction"
(citation omitted)); and, Colorado River Water Conservation Dist. v. United
States, 424 U.S. 800, 817 (1976) ("the virtually unflagging obligation of the
federal courts to exercise the jurisdiction given them"). In Hawes v.
Network Solutions, 337 F.3d 377, 383 (4th Cir. 2003), the court stated in
part that:
See Bell v. Hood, 327 U.S. 678, 685 (1946) (holding
that federal question jurisdiction existed because 'the right of
the petitioners to recover under their complaint will be
sustained if the Constitution and laws of the United States are
given one construction and will be defeated if they are given
another')"
17
Also note Hawes v. Network Solutions, 337 F.3d 377, 385 (4th Cir. 2003)
("Although we agree with the district court that the failure to allege one of
the required elements would be fatal to recovery, it would not be fatal to the
district court's jurisdiction."). Hence, unless this Court rules that petitioner
Mitrano's complaint "is 'so insubstantial, implausible, foreclosed by prior
decisions of this Court, or otherwise completely devoid of merit as not to
involve a federal controversy", this Court should rule that the District Court
did have federal-subject-matter jurisdiction. Also see § 23:52, Sovereign
Immunity preclusion of declaratory judgment, of 10 Fed.Proc., L.Ed., which
states in part that:
". . .
but an individual public official does not enjoy sovereign
immunity from a declaratory judgment suit if the individual
exceeded his or her statutory powers or acted
unconstitutionally, whether he or she is a state, or federal
official
-
even the President of the United States." (Footnotes
omitted.)
Also see Midwest Coast Transport v. United States, 125 F.Supp. 557,
560 (S.Dakota 1954) which states in part that:
18
"To the contrary is the statement of Professor Borchard in his
work on 'Declaratory Judgments', Chapter XIII, 'Administrative
Powers and Disabilities.'
Granting, however, that jurisdiction does exist in the
District Courts for the granting of declaratory judgments
against the united States
.
.
.
Also see Dugan v. Rank, 372 U.S. 609, 621-622 (1963); Golden State Transit
Corp. v. City of Los Angeles, 493 U.S 103, 119 (1989) (Kennedy, J.,
dissenting); Robishaw Engineering, Inc. v. United States, 891 F.Supp. 1134,
1143 (Va. 1995) citing 5 U.S.C. § 702 and Bowen v. Massachusetts, 487
U.S. 879, 981-92 (1988).
Moreover, "[m]otions to dismiss for lack of subject matter jurisdiction
fall into two general categories: facial attacks and factual attacks. A facial
attack is a challenge to the sufficiency of the pleading itself. On such a
motion, the court must take the material allegations of the petition as true
and construed in the light most favorable to the nonmoving party. See
Scheuer v. Rhodes, 416 U.S. 232, 235-37 (1974); Wolfe v. Strankman, 392
F.3d 358, 362 (9th Cir. 2004); and, Safe Air for Everyone v. Meyer, 373 F.3d
1035, 1039 (9th Cir. 2004). A factual attack, on the other hand, is not a
challenge to the sufficiency of the pleading's allegations, but a challenge to
the factual existence of subject matter jurisdiction. On such a motion, no
19
presumptive truthfulness applies to the factual allegations, see Ohio Nat'l
Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990), and the
court is free to weigh the evidence and satisfy itself as to the existence of its
power to hear the case." United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.
1994). While the court generally may not consider materials outside the
pleadings on a Rule 12(b)(6) motion, it may consider such materials on a
Rule 12(b)( 1) motion, and unlike Rule 12(b)(6), the attachment of exhibits to
a Rule 12(b)(1) motion does not convert it to a Rule 56 motion. Gonzalez v.
United States, 284 F.3d 281, 288 (1st Cir. 2002). However, in the instant
case, the respondents have not made an adequate factual attack and
therefore Mitrano was not required to even address the matters that could
be raised in a factual attack. Stated in other words, Mitrano contends any
attack as to federal-subject-matter jurisdiction herein is limited to a facial
attack by the respondents.
Mitrano steadfastly maintains that the District Court committed error
in dismissing this action pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure. Solely as a protective measure and out of an abundance of
caution, Mitrano also contends that the respondents should not have been
allowed to raise an affirmative defense in their motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure.
Arguendo, Mitrano contends that a motion to dismiss should not be
utilize as a vehicle for an affirmative defense and that an affirmative defense
20
cannot be raised by a Rule 12(b)(6) motion, but instead, must be raised in
the answer to the complaint. Under Federal Rule of Civil Procedure 8(c),
affirmative defenses, such as an immunity defense, should be raised in the
answer. Rule 8(c) provides:
"Affirmative Defenses. (1) In General.
In responding to a
pleading, a party must affirmatively state any avoidance or
affirmative defense
.
.
.
See Gomez v. Toledo, 446 U.S. 635 (1980) and Harlow v. Fitzgerald,
457 U.S. 800, 815 (1982) (Qualified or "good faith" immunity is an
affirmative defense that must be pleaded by a defendant official.). Also note
that the burden of justifying absolute immunity rests on the official
asserting the claim. See Butz v. Economou, 438 U.S. 478, 506 (1978); and,
Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982). Also see In re Sonus
Network, Inc., Shareholder Derivative Litigation, 499 F.3d 47, 56 (1st Cir.
2007) (holding that although res judicata is an affirmative defense, where
the defendant raises the issue by a motion to dismiss, and the plaintiff does
not object to the procedure, the court may resolve the issue on such a
motion). In the instant case, Mitrano objected to the procedure of allowing
the respondents to raise the affirmative defenses in their motion to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds
21
that the same would be a violation of Mitrano's right to due process under
the United States Constitution, that Mitrano is entitled to discovery
concerning the facts related to the affirmative defenses, that Mitrano is
entitled to rely upon the Federal Rules of Civil Procedure as written, and
due consideration by the courts requires more than the attorney argument
raised by the respondents. Also see Affirmative Defenses and Rule 12(b)(6):
A Plain Meaning Interpretation, Michael E. Rosman, New York Law Journal,
December 2012.
One of the issues to be decided is whether the respondents violated
the Posse Comitatus Act of 1878, Title 18 of the United States Code, Section
1385 (PCA). The District Court has the authority to issue a declaratory
judgment in this matter. See the Declaratory Judgment Act, 28 U.S.C., §
2201 et seq. The Posse Comitatus Act of 1878 states:
"Whoever, except in cases and under circumstances
expressly authorized by the Constitution or Act of Congress,
willfully uses any part of the Army or the Air Force as a posse
comitatus or otherwise to execute the laws shall be fined under
this title or imprisoned not more than two years, or both." 18
U.S.C. § 1385.
22
There is "a traditional and strong resistance of Americans to any military
intrusion into civilian affairs." Laird v. Tatum, 408 U.S. 1, 15 (1972). In
United States v. Dreyer, 804 F.3d 1266, 1272-1273, 1279 (9th Cir. 20 15) (en
banc), the Court stated in part that:
'Posse comitatus (literally 'power of the country') was
defined at common law as all those over the age of 15 upon
whom a sheriff could call for assistance in preventing any type
of civil disorder.' See H.R.Rep. No. 97-71, pt. 2, at 4 (1981)
(citing 1 William Blackstone, Commentaries 343-44). In 1878,
Congress codified a prohibition on the use of the military in
civilian law enforcement activities by enacting the PCA. See Act
of June 18, 1878, ch. 263, 20 Stat. 152 (1878) (current version
at 18 U.S.C. § 1385). The current version of the Act provides:
Whoever, except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress, willfully uses
any part of the Army or the Air Force as a posse comitatus or
otherwise to execute the laws shall be fined under this title or
imprisoned not more than two years, or both.
23
18 U.S.C. § 1385. The statute 'eliminate[s] the direct active use
of Federal troops by civil law authorities,' United States v.
Banks, 539 F.2d 14, 16 (9th Cir. 1976), and 'prohibits Army and
Air Force military personnel from participating in civilian law
enforcement activities,' Chon, 210 F.3d at 993. Writing on
behalf of the Supreme Court, Chief Justice Burger considered
Army surveillance of civilian affairs and described 'a traditional
and strong resistance of Americans to any military intrusion
into civilian affairs' that 'has deep roots in our history and found
early expression, for example, in the Third Amendment's explicit
prohibition against quartering soldiers in private homes without
consent and in the constitutional provisions for civilian control
of the military.' Laird v. Tatum, 408 U.S. 1, 15, 92 S.Ct. 2318,
33 L.Ed.2d 154 (1972). As in Laird, '[t]hose prohibitions are not
directly presented by this case, but their philosophical
underpinnings explain our traditional insistence on limitations
on military operations in peacetime' and our historical concern
that 'unlawful activities of the military [c]ould go unnoticed or
unremedied.' Id. at 15-16, 92 S.Ct. 2318.
In 1981, Congress enacted a separate statute directing:
24
The Secretary of Defense shall prescribe such regulations as
may be necessary to ensure that any activity (including the
provision of any equipment or facility or the assignment or detail
of any personnel)
...
does not include or permit direct
participation by a member of the Army, Navy, Air Force, or
Marine Corps in a search, seizure, arrest, or other similar
activity unless participation in such activity by such member is
otherwise authorized by law.
[T]he prohibition on use of military personnel 'as a posse
comitatus or otherwise to execute the laws' prohibits the
following forms of direct assistance:
Interdiction of a vehicle, vessel, aircraft or other similar
activity.
A search or seizure.
An arrest, stop and frisk, or similar activity.
Use of military personnel for surveillance or pursuit of
individuals, or as informants, undercover agents, investigators,
or interrogators.
32 C.F.R. § 213.10(a)(3) (1982)
25
"[Footnote 71 The Supreme Court has recognized that "concerns
[about] Army surveillance activities
...
reflect a traditional and
strong resistance of Americans to any military intrusion into
civilian affairs[,] [which] found early expression
...
in the Third
Amendment[ ]." Laird, 408 U.S. at 15, 92 S.Ct. 2318; see also
United States v. Walden, 490 F.2d 372, 375 (4th Cir.1974)
("[T]he [PCA] was no more than an expression of constitutional
limitations on the use of the military to enforce civil laws."); 7
Cong. Rec. 4247 (1878) (remarks of Sen. Benjamin Hill) (use of
military power to discharge duties of civil officers supplants "a
government for liberty
...
founded in the consent of the people"
with "a government of force")."
Under the facts as pleaded in the complaint, the respondents violated 18
U.S.C. § 1385. Also see 6 C.J.S. Armed Services § 52 ("Civilian employees of
the military departments are not part of the military establishment any
more than any other class of clerks in the classified service of the
government.")
Furthermore, the military has greater authority over a serviceman
than over a civilian. See Parker v. Levy, 417 U.S. 733, 749-751, 94 S.Ct.
2547, 2558-2559, 41 L.Ed.2d 439 (1974).
26
In short, arguendo, as this Court is aware, "[a]lthough the concepts
are related, sovereign immunity and subject matter jurisdiction present
distinct issues. See Arford v. United States, 934 F.2d 229, 231 (9th Cir.
1991).
.
.
.
A waiver of sovereign immunity means the United States is
amenable to suit in a court properly possessing jurisdiction.....
(Citation omitted.)".
United States v. Park Place Assocs., 563 F.3d 907,
923 (9th Cir. 2009). Before prematurely reaching a decision on the issue of
waiver of sovereign immunity, a court should first decide whether said court
has subject-matter jurisdiction. In the instant case, the District Court erred
in ruling that the District Court did not have subject-matter jurisdiction.
Petitioner Mitrano respectfully requests that this Court remand this action
with instructions that the District Court did in fact have subject-matter
jurisdiction. The issue of sovereign immunity may be waived; it is an issue
that is subject to further proceedings before the District Court. See Cato v.
United States, 70 F.3d 1103, 1111 (9th Cir. 1995) (". .
has waived its sovereign immunity.
.
the United States
. .
Moreover, arguendo, out of an abundance of caution and also as a
protective measure, as this Court is well aware, the government of the
United States of America is composed of three branches. The judicial
branch is currently the only hope at the moment a citizen of United States
of America has for protection from the executive branch and/or the
legislative branch. With all due respect and the utmost humility, I dare say
27
that the citizens of the United States of America including the undersigned
are over-taxed and over-regulated. Without straying too far from the
purpose of this writing, the use of the government's war against poverty,
war against drugs, war against crime, war against terrorism, war against
this, war against that, etc. can by some be viewed as another vehicle to
deprive the citizens of the United States of America including the
undersigned of their rights and freedoms that are supposed to be protected.
In the instant case, the United States of America has crossed another line
by using its military members of the Department of the Air Force against the
undersigned in violation of its own law namely, the Posse Comitatus Act of
1878, Title 18 of the United States Code, Section 1385. Amazingly, the
United States of America has never prosecuted any one since 1878, that is
in 140 years, for violating said 18 U.S.C. § 1385. One could say it is
another example of another law that is to this day meaningless to the
United States of America. Lest us not forget, it was a law enacted to make
the citizens of the United States of America "feel good" as if the citizens of
the United States of America were actually going to be protected from the
abuse of the military members of the Department of the Air Force of the
United States of America. Lest us also not forget that our forefathers gave
up their lives when they commenced the revolution that started the United
States of America on April 19, 1775, over 243 years ago, in Lexington,
Massachusetts. As a matter of reflection, a reading of our Declaration of
Independence that was adopted in Philadelphia on July 4, 1776 should
cause some thought as to whether we have now come full circle? Back to
the matter at hand, this Court has an opportunity to protect the
undersigned from the military members of the Department of the Air Force
of the United States of America or just give another legal equivalent of the
"wink" to the military members of the Department of the Air Force of the
United States of America.
Note the relatively recent words of Chief Justice Roberts in the
National Federation of Independent Business v. Sebelius, 567 U.S. 519, 557
(2012).
Stated in other words, it is not the role of the Department of the Air
Force of the United States of America to regulate the undersigned.
The
United States of America was not suppose to evolve into a police state. In
the instant case, this Court can stop some of the encroachment of the
United States of America onto the citizens of the United States of America.
After the legal equivalent of wiggling through the language of the
relevant case law, the way that a citizen is allowed to stop the subject
activity of the United States of America in the judicial branch is by
requesting a court to enjoin the United States of America from violating said
18 U.S.C. § 1385. See Steffel v. Thompson, 415 U.S. 452, 462 (1974)
("When no state proceeding is pending and thus considerations of equity,
comity, and federalism have little vitality, the propriety of granting Federal
29
declaratory relief may properly be considered independently of a request for
injunctive relief.
.
.
The respondents (or our government) would like this Court to believe
that there is nothing a citizen of the United States of America can file in the
federal courts to stop our government from violating the Posse Comitatus
Act of 1878, Title 18 of the United States Code, Section 1385. Note again
that no one has ever been prosecuted for violating the Posse Comitatus Act
of 1878. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
Thus, again, for about 140 years, no one has been prosecuted for violating
the Posse Comitatus Act of 1878, Title 18 of the United States Code, Section
1385. Has our government never violated the Posse Comitatus Act of 1878
(think about Katrina and New Orleans)?
2.
Did the United States Court of Appeals for the Ninth Circuit err
in affirming the dismissal of the claim that the custody order issued on
September 27, 2002 by the Lebanon Family Court, in Lebanon, New
Hampshire was void as a matter of law?
This issue is related to Mitrano's security clearance. Note again from
pages 8-9 herein "Other issues concerning Mitrano's security clearance and
the right to access to the location of Mitrano's employment at the Global
Strike Command, Malmstrom Air Force Base, Montana with the United
30
States of America have arisen as a result of a custody order issued on
September 27, 2002 by the Lebanon Family Court, Lebanon in the State of
New Hampshire in the United States of America. (J37)"
Also see 28
U.S.C. § 1367(a) (district courts have authority to exercise supplemental
jurisdiction "in any civil action of which the district courts have original
jurisdiction"); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349-350, 350 n.
7 (1988); and, Bryant v. Adventist Health System/West, 289 F.3d 1162,
1169 (9th Cir. 2002).
Arguendo, out of an abundance of caution and as a protective
measure, another issue to be decided in this case is whether this Court
should decide whether a civil judgment from the State of New Hampshire is
void as a matter of law. Under the law of the State of New Hampshire, a
void judgment may be attacked and declared void at any time in any place.
The complaint is requesting that the District Court declare a void civil
judgment void and nothing more. The District Court had the authority to
issue a declaratory judgment in this matter. See the Declaratory Judgment
Act, 28 U.S.C. § 2201 et seq.
Arguendo, Mitrano contends that the District Court should not have
been allowed to raise an affirmative defense on a sua sponte basis in ruling
on the motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Also see Uffner v. La Reunion Francaise, S.A., 244 F.3d 38 (1st
Cir. 2001) wherein the message is that the District Court should not sua
31
sponte be assisting the respondents in this action (and/or be raising
arguments for the respondents that the respondents could possibly and/or
should possibly be raising themselves). Mitrano also objects to said
Findings and Recommendations wherein the District Court raised the
issues of res judaica and/or the Rooker-Feldman doctrine. Again, said
defenses had not been previously raised by the respondents. With all due
respect and the utmost humility, Mitrano should not have to defend against
two sets of attorneys, namely, the attorneys for the respondents plus the
magistrate judge raising additional arguments
sua sponte
for the
respondents. Mitrano hereby objects to the magistrate judge raising
additional arguments sua sponte for the respondents.
Note that in United States v. Mitchell, 463 U.S. 206, 227 (1983), this
Supreme Court of the United States stated in part that:
"The Government contends that violations of duties
imposed by the various statutes may be cured by actions for
declaratory, injunctive, or mandamus relief against the
Secretary.
.
.
It is important to note that Mitrano is not requesting any money from
the United States of America. Hence, as quoted directly above in a case
cited by the respondents before the District Court, Mitrano contends that
32
Mitrano is entitled to relief in the form of a judgment from this Court "for
declaratory, injunctive, or mandamus relief'.
Arguendo, Mitrano also objects to the magistrate judge in the District
Court raising sue sponte that the Rooker-Feldman doctrine bars the
complaint. See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983);
Rooker v. Fidelity Trust Co., 263 U.S. 413, 415 (1923); Worldwide Church of
God v. McNair, 805 F.2d 888, 892 (9th Cir. 1986). Also see Exxon Mobil
Corp. v. Saudi Basic Industries, 544 U.S. 280, 125 S.Ct. 1517, 1521, 1527
(2005).
Also see an article entitled Rooker-Feldman Doctrine as Atrnlied to
ADA Claims and Property-Related Claims which was printed West's
Supreme Court Reporter, 126 S.Ct. No. 1, on pages 24 and 25. Further
insight is contained in an article written by Georgene Vairo entitled Forum
Selection, 'Rooker-Feldman' which was printed in The National Law Journal,
April 25, 2005 (page 12).
Arguendo, because the state court in the State of New Hampshire that
issued the orders which Mitrano contends are void (because of lack of
subject-matter jurisdiction) is a court of limited and inferior jurisdiction,
said orders can be attacked in this action. Also see In re Gruntz, 202 F.3d
1074, 1087 (9th Cir. 1999). Also see Elliott v. Peirsol's Lessee, 26 U.S. 328,
340 (1828) ("But, if it act without authority, its judgments and orders are
regarded as nullities. They are not voidable, but simply void"); and, Frank v.
33
Mangum, 237 U.S. 309, 327 (1915) ("[A]bsolutely void for want of
jurisdiction in the court that pronounced it, either because such
jurisdiction was absent at the beginning"). With all due respect, this Court
should not condone said illegal action of the federal government; this Court
should not allow the federal government to proceed under the illegal cover of
a void restitution order. Also see Ex parte Siebold, 100 U.S. 371, 376-377
(1879).
Also see Commonwealth v. Coronel, 33 Va.Cir. 110, 1993 WL 946323,
* I (Fairfax, Va. 1993) ("It is conceded by all authorities that if a judgment is
void it may be assailed anywhere, at anytime, in any way, by anybody. It is
immaterial whether the assault be direct or collateral.' Id., at [222 Va. 787,]
793, citing Beck v. Semones' Admr., 145 Va. 429, 441 (1926)"); and,
Coleman Bros. Corp. v. City of Franklin, 58 F.Supp. 551, 554 (N.H. 1945).
Also note Rankin v. Howard, 633 F.2d 844, 849 (9th Cir. 1980)
certiorari denied Zellar v. Rankin, 451 U.S. 939 (198 1) and Crater v. Galaza,
508 F.3d 1261, 1266 (9th Cir. 2007).
Also see the case of MacKay v. Pfeil, 827 F.2d 540, 545 (9th Cir. 1987)
and the case of Olson Farms, Inc. v. Barbosa, 134 F.3d 933, 936 (9th Cir.
1998) ("there are times when a court must ask whether a federal
constitutional claim was 'inextricably interwined' with a state court decision
or whether it is a separate general constitutional challenge."). Again, in the
34
instant action, the state court in the State of New Hampshire did not have
the power to determine its own jurisdiction.
As a protective measure, in the event that the District Court granted
respondents' motion to dismiss, Mitrano requested permission for leave to
file a motion to amend the complaint previously filed. By omission, the
District Court did not rule on Mitrano's request for permission for leave to
file a motion to amend the complaint previously filed herein. Mitrano
objected to the District Court not ruling on Mitrano's request for permission
for leave to file a motion to amend the complaint. See Chang v. Chen, 80
F.3d 1293, 1296 (9th Cir. 1996) ("dismissal without leave to amend is
improper unless it is clear, upon de novo review, that the complaint could
not be saved by any amendment."); and, Lopez v. Smith, 203 F.3d 1122 (9th
Cir. 2000). Mitrano respectfully requests that this Court order that Mitrano
is entitled to file an amended complaint in the event that this Court does
not reverse the Court of Appeals on all the issues with respect to
respondents' motion to dismiss. Furthermore, 28 U.S.C., § 1653 allows an
amendment for jurisdictional purposes: Mitrano hereby respectfully request
an amendment to the complaint be allowed stating in essence that the
respondent Keri A. Adorisio is also being sued on an individually basis as a
protective measure.
Another matter is that magistrate judge err in failing to provide the
notice of time allowed to respond in his Findings and Recommendations on
35
Defendants' Motion to Dismiss dated October 31, 2016 as required by
Thomas v. Am, 474 U.S. 140, 145 (1985), rehearing denied 474 U.S. 1111
[•Iei:1.i
Note that the subject Findings and Recommendations on Defendants'
Motion to Dismiss dated October 31, 2016 did not advise Mitrano, who
appeared pro Se, that Mitrano was required to take any action and/or that
an appeal is waived if Mitrano did not take any action. Hence, Mitrano
respectfully states that Findings and Recommendations on Defendants'
Motion to Dismiss dated October 31, 2016 are inadequate as a matter of
law. See Thomas v. Am, 474 U.S. 140, 145 (1985), rehearing denied 474
U.S. 1111 (1986)
(".
.
.
Additionally, through the exercise of our
supervisory power, we hold that a party shall be informed by the magistrate
that objections must be filed within ten days or further appeal is waived.").
Stated in other words, Mitrano contends because there is no language in
Findings and Recommendations on Defendants' Motion to Dismiss dated
October 31, 2016 that Mitrano must object in a certain time period, said
Findings and Recommendations do not comply with the requirements of
Thomas v. Am, supra.
Also see Title 28 U.S.C. § 636(b)(1)(C). Mitrano
objected to the subject Findings and Recommendations on Defendants'
Motion to Dismiss dated October 31, 2016 not containing the language
"that a party shall be informed by the magistrate that objections must be
36
filed within ten days or further appeal is waived." as required by the
Supreme Court in Thomas v. Am, supra.
Mitrano requests that this matter be remanded with instructions that
the magistrate judge correct said subject Findings and Recommendations
on Defendants' Motion to Dismiss dated October 31, 2016. Mitrano further
requests that the judgment of the District Court be vacated because of the
failure of the magistrate judge to comply with Thomas v. Am, supra.
Contrary to the statement made by the District Court in the Order
dismissing this action dated February 7, 2017 that "Mitrano did not file
objections to Judge Johnston's Finding and Recommendations", the
petitioner Mitrano did in fact file objections to said findings and
recommendation. Please refer to document numbered 25, filed November
14, 2016 (a thirty plus page document) stating petitioner Mitrano's
objections to said findings and recommendation. Arguendo, for this reason
alone, this Court should reverse the decision of the District Court and
remand this action for further proceedings.
Moreover, as petitioner Mitrano stated before the District Court,
Mitrano again represents that Mitrano never received the order from the
District Court granting Mitrano additional time to respond to the
recommendations of the magistrate judge.
37
Note "a party [may] establish jurisdiction at the outset of a case by
means of a nonfrivolous assertion of jurisdictional elements," Jerome B.
Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 537 (1995).
Also see Armed Forces of the Islamic Republic of Iran v. Cubic Def. Sys.,
385 F.3d 1206, 1226 (9th Cir. 2004) ("A judgment is void only if the issuing
court lacked subject-matter jurisdiction over the action or if the judgment
was otherwise entered in violation of due process.") The Rooker-Fieldman
doctrine does not extinguish the historical authority of equity courts to
reform judgments in appropriate cases.
Goland v. Central Intelligence
Agency, 197 U.S.App.D.C. 25, 607 F.2d 339 (D.C. 1978) certiorari denied
445 U.S. 927 (1980).
Also see 11 Fed. Prac. & Proc. Civ. § 2862 (3d ed.), Federal Practice &
Procedure, April 2017 Update, § 2862 Void Judgment.
The federal courts have supplemental jurisdiction (see Title 28,
U.S.C., Section 1367) over the New Hampshire judgment as the matter is
related to Mitrano's security clearance, his (federal government employment
and access to Malmstrom Air Force Base in the State of Montana. The issue
of Mitrano's security clearance and the allegedly void New Hampshire
judgment are in close legal proximately because of the interrelation of the
two issues.
Also note United Student Aid Funds, Inc. v. Espinosa, 130 S.Ct. 1367,
1377 (2010) and
Watts v. Pinckney, 752 F.2d 406, 409 (9th Cir. 1985).
38
This Supreme Court has previously stated that a court acting without
jurisdiction produces a void judgment. See Elliott v. Peirsol, 26 U.S. (1 Pet.)
328, 340, 7 L.Ed. 164 (1828), cited with approval, Kalb v. Feuerstein, 308
U.S. 433, 438-39 n. 8, 60 S.Ct. 343, 84 L.Ed. 370 (1940); cf. The Betsey, 3
U.S. (3 Dali.) 6, 15-16, 1 L.Ed. 485 (1794) wherein the Supreme Court
stated that if a court acts without authority, its judgments and orders are
nullities. They are not voidable, but simply void; and form no bar to a
recovery sought, even prior to a reversal in opposition to them. They
constitute no justification; and all persons concerned in executing such
judgments or sentences, are considered, in law, as trespassers.
Also see West Virginia Oil and Natural Gas Ass'n v. Wooten, 631
F.Supp.2d 788, 797 (W.Va. 2008) ("I may enjoin Mr. Wooten from
continuing to violate federal law if his actions do, in fact, violate federal
In the case of In the Matter of Walker, Walker v. Internal Revenue
Service, No. CIV 02-2504-PHX-SMM, 2003 WL 22474836 (Arizona Sept. 26,
2003) ("There is no question of discretion on the part of the court when a
motion is brought under Federal Rule 60(b)(4); the judgment is either void
or it is valid. Thos. P. Gonzalez Corp. v. Consejo Nacional De Produccion De
Costa Rica, 614 F.2d 1247, 1256 (9th Cir. 1980)."
39
Also see Sullivan v. Tarope, Nos. 03-0018-GA, 98-1293, 98-1294, 981295, 2006 WL 1109449, *5 (Supreme Court of the Commonwealth of the
Northern Mariana Islands April 18, 2006).
As the undersigned ponders the changes in the life of the citizens of
the United States of America since the date Congress officially adopted the
Declaration of Independence on July 4, 1776, it seem to the undersigned
that our country has been transformed from a free and giving society to an
over-policed, over-taxed and over-regulated society. We live with the
expectation that there will soon be another mass killing, some more citizens
of the United States of America will be killed by the police and that more
citizens of the United States will commit suicide than die in traffic related
accidents. While we are told that the number of traffic violations are for our
safety (and, of course, not to increase government revenues); how does our
government attempt to prevent suicides? Note the 1999 Columbine High
School massacre, the 2007 Virginia Tech massacre, the 2012 Sandy Hook
Elementary School shooting, 2014 Isla Vista killings, etc. Also note that in
2016,
there
were
37,461
vehicle
fatalities
(see
https: / /en.wikipedia.org/wiki Z Motor vehicle fatality rate_in_U.S.-by-year)
and
44,965
suicides
https: / / en.wiki-pedia.org/wiki/ Suicide in the United States).
(see
As to the
payment of taxes, we spend about 105 working days out of about 260
working
days
each
year
to
pay
taxes.
See
40
http: / /litaxes.blogspot.com/201 1/0 5 / how-many- days- do- americans-workjust-to .html.
Then, there is an issue as to how many laws there are, see for
example, How Many Federal Laws Are There? No One Knows:
"No one knows how many laws there are in the United States.
Apparently, no one can count that high.
They've been accumulating, of course, for more than 200 years.
When federal laws were first codified in 1927, they fit into a
,
single volume. By the 1980s, there were 50 volumes of more
than 23,000 pages.
And today? Online sources say that no one knows. The
Internal Revenue Code alone, first codified in 1874, contains
more than 3.4 million words and, if printed 60 lines to the page,
is more than 7,500 pages long. There are about 20,000 laws
just governing the use and ownership of guns."
(See
http: / /www.kowal.com/?g=How-Many-Federal-Laws-AreThere%3F.)
Of course, the more laws there are, the more potential convictions of
crimes there are available to prosecutors. Then, there is the 99.8 percent
conviction rate in federal court. Are the government lawyers really that
41
great or is the system rigged? See 99.8% Conviction Rate In U.S. Federal
Courts Can Make Japanese Prosecutors Jealous where it is stated:
"Between guilty pleas and trials, the conviction rate was 99.8% in U.S.
federal courts in 2015: 126,802 convictions and 258 acquittals. That wasn't
an anomaly." (http: / /justicedenied org/wordpress / archives/3190).
.
Next, there is the reality of wrongful convictions. Note the number of
people that are exonerated; see Record Number Of People Were
Exonerated In 2015 For Crimes They Didn't Commit (see
htt-ps: / /www.huffington-post.com / entry / exonerations2015 us_56ac0374e4b00b033aaf3da9). Also note "The United States has
the largest prison population in the world, and the second-highest percapita incarceration rate, behind Seychelles (which in 2014 had a total
prison population of 735 out of a population of around 92,000)." (Footnotes
omitted.)
See
https: / / en .wikipedia. org /wiki / Incarceration in the _United_States.
As this Court decides this appeal, with all due respect and the utmost
humility, this Court should ask itself whether this Court is contributing to
the problems that the citizens of the United States of America face today? Is
this Country the Country our forefathers gave up their lives for? Is there
corruption in our court system? Is there corruption with our politicians? Is
there corruption in our government?
42
-
Mitrano again refers to Constitutional Chaos: What Happens When
the Government Breaks Its Own Laws, by Andrew P. Napolitano,
https: / I books. google.com I books?isbn= 1418508357
-
2006
-
Political
Science. Also see How the Government Breaks the Law, by Andrew P.
Napolitano, CATO Policy Report, November/ December 2004, Vol. XXVI No.
6. This matter brings to mind the words of former President Nixon who said
"Well, when the President does it, that means that it is not illegal."
Richard
Nixon, 1977 interview with David Frost. Much like the king can do no
wrong; however, the United States of America did not adopt the equivalent
of a king when the United States of America formed the United States of
America. Also see The Politicization of the FBI by Joseph E. di Genova,
former United States Attorney, Imprimis, a publication of Hillsdale College,
February 2018, Volume 7, Number 2.
Conclusion
For these reasons, a writ of certiorari should issue to review the
judgment of the United States Court of Appeals for the Ninth Circuit.
Respectfully submitted,
Peter P. Mitrano
Pro se
10825 Fieldwood Drive
Fairfax, Virginia 22030
Petitioner
Dated: October 19, 2018.
APPENDIX
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.