Petition for Writ of Certiorari — Paul C. Nordberg, Petitioner v. The Massachusetts Teachers' Retirement System

■z

No. 22 Vi_-*'; i i

■ ■ i' Liu&w1-;

In the

Supreme Court of the United States

Supreme Court, U.S.

FILED

Paul C. Nordberg,

MAR 1 0 2022

Petitioner

OFFICE OF THE CLERK

-V-

The Massachusetts Teachers’ Retirement

System

Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the 1st Circuit

, PETITION FOR A WRIT OF CERTIORARI

Paul C. Nordberg,

Petitioner, Pro-se

3 Overhill Drive

Auburn, MA 01501-2406

Pauldeblee@aol.com

Tel: (508) 832-6443

QUESTIONS PRESENTED

1. Should the clear and unambiguous words of the

11th

Amendment

Constitution

be

to

the

United

the

basis

for

States

judicial

determinations relating to that Amendment?

2. Should the reasoning relating to the meaning

of the 11th Amendment that is set forth in

Hans v. Louisiana: 10 S.Ct. 504 (1890) and

its progeny be explicitly rejected by the current

United States Supreme Court?

3. As a result, should the decisions of the United

States Court of Appeals for the 1st Circuit in

Nordberg

-v-

Massachusetts

Teachers'

Retirement System (Case No. 21-1006; United

ii

States Court of Appeals for the 1st Circuit),

dismissing this lawsuit as barred by the 11th

Amendment be vacated?

iii

CORPORATE DISCLOSURE

This lawsuit is an action by a single citizen against

the Massachusetts Teachers’ Retirement System. No

corporate information exists that would need to be

disclosed to the Court.

APPEALS COURT JUDGES WHO

DECIDED MY APPEAL

• Sandra L. Lynch

• 0. Rogeriee Thompson

• William J. Kayatta, Jr.

iv

RELATED PROCEEDINGS

The following proceedings are directly related to this

case within the meaning of Rule 14.1(b)(iii):

• Nordberg v. The Massachusetts Teachers’

Retirement System: (Case No 19-40089-TSH United States District Court for the District of

Massachusetts,

Worcester

Division).

Memorandum of Decision and Order on

Defendants’

Motion

to

Dismiss,

entered

November 30, 2020. (See Exhibit No 1 in the

Appendix)

• Nordberg v. The Massachusetts Teachers’

Retirement System: (Case No 19-40089-TSH United States District Court for the District of

Massachusetts, Worcester Division) ORDER

v

OF DISMISSAL entered on November 30, 2020

(See Exhibit No 2 in the Appendix)

•

Paul C. Nordberg, Plaintiff/Appellant -v- The

Massachusetts Teachers’ Retirement System:

Case No. 21-1006; United States Court of

Appeals for the 1st Circuit; Judgment entered

on October 20, 2021, affirming the dismissal of

this lawsuit by the District Court pursuant to

provisions of the 11th Amendment to the United

States Constitution (See Exhibit #3 in the

Appendix)

•

Paul C. Nordberg. Plaintiff/Appellant -v- The

Massachusetts Teachers’ Retirement System:

Case No. 21-1006; United States Court of

Appeals for the 1st Circuit; Order of the Court

vi

entered on February 14, 2022, denying

Plaintiff/Appellant’s petition for rehearing.

(See Exhibit No. 4 in the Appendix)

•

Paul C. Nordberg- Plaintif^Annellant -v- The

Massachusetts Teachers’ Retirement System:

Case No. 21-1006; United States Court of

Appeals for the 1st Circuit;

MANDATE filed

by the Clerk of the Court on February 22, 2022.

vii

Table of Contents

QUESTIONS PRESENTED

ii

CORPORATE DISCLOSURE

iv

RELATED PROCEEDINGS

v

TABLE OF AUTHORITIES

viii

JURISDICTION

1

INTRODUCTION

.2

SUMMARY OF MY ARGUMENT

3

SOVEREIGN IMMUNITY

15

CONCLUSION

17

x

TABLE OF AUTHORITIES

CASES

Chisholm v. Georgia; 2 U.S. (2 Dali.) 419

5

Dred Scott v. Sanford; 60 U.S. 19............ 14

Granfianciera. S.A. -v- Nordbers: 493 U.S.

33 (1989)..................................................... 12

Granfinanciera S.A. -v- Nordberg; 493

U.S. 33, 63)................................................ 13

Granfinanciers S.A. -v- Nordberg; 493

U.S. 33, 63................................................. 13

Hans v. State of Louisiana; 10 S.Ct. 504; 134

U.S.l. (1890)............................................. 6

Kimmel v. Florida Board of Regents; 528

U.S. 62 (2000............................................ 15

Plessy v. Fergusaon; 163 U.S. 537 (1986)

14

CONSTITUTIONAL PROVISIONS

11th Amendment of the United States

Constitution.......................................

3

11th Amendment to the United States

Constitution....................................... passim

7th Amendment to the United States

Constitution

12, 13

viii

Article III; §2 of the United States

Constitution.......................................

in Article III, §2 of the United States

Constitution.................... ..................

4

8

STATUTES

Age Discrimination in Employment Act of 1967; 29 U.S.C.

§621-734.............................................................................

ix

1,2

JURISDICTION

This lawsuit seeks relief under a federal

statute, the Age Discrimination in Employment Act of

1967; 29 U.S.C. §621-734.

The MANDATE of the United States Court of

Appeals for the 1st Circuit, entered on February 22,

2022

finalized this lawsuit’s passage through the

lower federal courts.

As set forth in Rule 13 of the United States

Supreme Court, I have ninety (90) days, from

February 14, 2022, to file and serve my petition

seeking the issuance of a writ of certiorari.

1

INTRODUCTION

As Petitioner and Plaintiff in this lawsuit, I,

Paul C. Nordberg, seek the entry of a decision by the

United States Supreme Court holding that the 11th

Amendment to the United States Constitution must

be understood, accepted, and enforced on the basis

that reflects the unambiguous meaning of the text of

that Amendment.

In this lawsuit I have sought redress pursuant

to the Age Discrimination in Employment Act of 1967

(29

U.S.C.

§621-631

Massachusetts

(“MTRS”).

(“ADEA”)

Teachers’

against

Retirement

the

System

The crux of my complaint is that the

retirement benefit formula used by the MTRS

systematically discriminates against educators who

work beyond their 65th birthday(s).

The

United

States District Court for the District of Massachusetts

2

and the United States Court of Appeals for the 1st

Circuit have each dismissed my lawsuit on the basis

that the 11th Amendment to the United States

Constitution

denies

the

federal

court

system

jurisdiction to consider my lawsuit on its merits.

SUMMARY OF MY ARGUMENT

The 11th Amendment of the United States

Constitution states as follows:

“The Judicial power of the United

States shall not be construed to

extend to any suit in law or

equity, commenced or prosecuted

against one of the United States

by Citizens of another State,

or by Citizens or Subjects of

any Foreign State.” [emphasis

added]

3

Coupled with the provisions of Article III; §2 of

the United States Constitution, the language of the

11th Amendment makes clear that - if I lived in a state

other than Massachusetts - I could not sue the

Commonwealth of Massachusetts under ADEA.

I am, however, a life-long resident of the

Commonwealth. In my circumstances the clear words

of Article III; §2 of the United States Constitution and

the

11th

Amendment

to

the

United

States

Constitution provide me with the right to sue my

home state, the Commonwealth of Massachusetts, for

violating a federal statute, the ADEA..

Read as a simple, clear, and lucid statement in

the English language, the 11th Amendment provides

no insulation to the Commonwealth of Massachusetts

from a lawsuit like mine.

4

Both the United States District Court and the

United States Court of Appeals for the 1st Circuit have

dismissed my lawsuit as barred by the provisions of

the

11th

Amendment

to

the

United

States

Constitution.

What gave rise to the 11th Amendment was the

case of Chisholm v. Georgia; 2 U.S. (2 Dali.) 419. In

that lawsuit an individual who was not a resident of

the State of Georgia sought to recover moneys

allegedly owed to him for supplying materials to the

State of Georgia during the Revolutionary War. The

Supreme Court ruled that it had original jurisdiction

to consider the case on its merits. In so deciding, the

Supreme Court relied upon a provision in Article III

Section 2 of the United States Constitution. That

provision states that the federal judicial system has

power to adjudicate, among other things, disputes:

5

"...between a State and citizens of another state..”

The 1793 decision in Chisholm was very

unpopular. Its unpopularity was so great that the 11th

Amendment was passed by the Congress (in May of

1794) and approved by 3/4ths of the states (in

February of 1795). The entire process of overturning

Chisholm, via an Amendment to the United States

Constitution ratified less than three (3) years after

the decision, evidences the broad-based support

which then existed to overturn Chisholm.

The 1890 case which stood everything on its

head is Hans v. State of Louisiana; 10 S.Ct. 504; 134

U.S.l. (1890). In Hans a person who was a resident of

Louisiana sought to collect the interest due under

borrowings (bonds) validly issued by the State of

Louisiana.

At page #4

the

Supreme

Court

acknowledges that Hans’ contention that the plain

6

language of the 11th Amendment provides Louisiana

no safe haven:

“It is true the amendment does so

read... [in

keeping

with

Hans’

assertion he can sue the State of

Louisiana for the money he is

owed.]

The clear language of the 11th Amendment coupled

with the provision of Article III Section 2:

“The judicial Power shall extend to

all Cases, in Law and Equity,

arising under this Constitution, the

Laws of the United States, and

Treaties made, or which shall be

made, under their Authority....

left no rational or lucid basis for the Supreme Court

to rule as it did in Hans.

7

Lacking a rational basis to conclude that the

federal courts lacked jurisdiction in Hans' case, the

Supreme Court recited reasons why Hans should get

his day in court as though under some theory they

supported the notion he should be denied a trial.

For example:

The Hans Court (at pages 4-5) recites how

Alexander Hamilton, in Federalist Paper No 81

argued that what is found in Article III, §2 of the

United States Constitution would be a terrible

mistake. Thereafter the authors of the Constitution

and the state leaders who achieved its ratification,

including the text in Article III Section 2 that

Hamilton believed was ill-advised, acted contrary to

Hamilton’s views and advice. That Hamilton thought

Article III Section 2 was poorly written cannot

8

rationally have the effect of making that part of the

Constitution ineffective.

At page 6 the Hans Court says that the error

made by the Supreme Court in Chisholm v Georgia

was that it:

“Adhere[d] to the mere letter [of the 11th

Amendment].”

When the mere letter of a constitutional

provision, is clear - that is all that should be adhered

to. If the Constitution and/laws do not mean what

they clearly state in plain English language, we

cannot expect the people to be able to comply with the

Constitution or the law(s) enacted pursuant to it.

At page #8 the Hans court postulated that the

reason the 11th Amendment was so quickly enacted by

the Congress and ratified by the states was that

9

states did not understand what they were doing. That

Court recites its subjective view that - had the states

understood the 11th Amendment - the then-Justices of

the Supreme Court could not:

"...imagine that it would have been adopted by the

states. ”

The legitimate responsibility of Justices of the

Supreme Court is to construe the Constitution and

statutes enacted under the Constitution in conformity

to what those documents state.

Here:

•

The

Justices

of

the

Supreme

Court

hypothesized, out of thin air, that the states did

not understand the Constitutional Amendment

they were then ratifying it;

10

•

Next, the then-justices of the Supreme Court

took on the role of political pollsters - and

predicted that, had the states understood the

11th Amendment, they would never have

ratified it.

It is difficult to find words to properly characterize the

level of arrogance implicit in Hans.

The apparent reality that the majority of the

Hans court believed that the adoption of the 11th

Amendment, in the form it was adopted, was a

mistake cannot be allowed to empower or justify the

Supreme Court telling the Congress and the States

that is will “clean up” their mistake by ignoring the

clear wording of the 11th Amendment.

When courts

do that, as occurred here, they trample the notion of

separation of powers - and the hypothesis that we are

a nation governed by laws rather than men (even if

11

those men have seats on the United States Supreme

Court).

I am the Respondent in a case decided by the

United

States

Supreme

Court

Granfianciera. S.A -v- Nordbers:

m

1989;

493 U.S. 33

(1989). That decision dealt with the interaction

between the 7th Amendment to the United States

Constitution’s guarantee of a right to a jury trial in

civil litigation in federal court and Congress’ action in

placing a certain cause of action

a fraudulent

conveyance - in a statue allowing for a bench trial.

After a lengthy discussion of reasons why the

Congress passed a statute stating that fraudulent

conveyance litigation - when related to a federal

bankruptcy proceeding - would be litigated in bench

trials, the Supreme Court stated succinctly why such

12

actions would be litigated via jury trials if a party so

demanded:

"...these considerations are insufficient

to overcome the clear command of the

Seventh

Amendment. "(See

Granfinanciera S.A. -v- Nordberg; 493

U.S. 33, 63)

The words of the 11th Amendment to the United

States Constitution- which ban only law suits by

non-residents of a given State against that state

pursuant to a federal statute - are equally clear with

the language of the 7th Amendment to the United

States Constitution - which provides litigants a right

to a jury trial in civil lawsuits in the federal courts.

The clear words of the 11th Amendment

should be followed, just as the words of the 7th

Amendment are.

13

Even as a non-lawyer I am well-aware of the

doctrine of stare decisis. Only very rarely should the

Supreme Court completely overturn and reject a

decision by the-then Justices of the Supreme Court at

an earlier date.

But from Dred Scott v. Sanford 60 U.S. 19 ,

through Plessv v. Ferguaon: 163 U.S. 537 (1986), and

a few others, this Court has periodically reversed a

small number of prior Supreme Court precedents for

the straightforward reason that the earlier case was

wrongly decided.

The snowball of mistakes relating to the 11th

Amendment grew in 2000. That year a 5-4 majority .

of the United States Supreme Court ruled that

Congress’ action in 1974 was somehow insufficient

when is enacted an amendment to the statute under

which I sue, the Age Discrimination Act of 1967, to

14

abrogate the sovereign immunity of the individual

states (See Kimmel v. Florida Board of Regents: 528

U.S. 62 (2000). In so deciding the Supreme Court

nullified the actions of the Congress, based on an

irrational reading of the 11th Amendment.

SOVEREIGN IMMUNITY

The notion of sovereign immunity is a judicial

creation, born centuries ago.

The hypotheses on

which the concept of sovereign immunity was created,

in the British legal system, were:

•

The Sovereign [the King or Queen] occupies the

throne because God intentionally created the

circumstances which resulted in the Sovereign

sitting on the throne; and

•

Even when the Sovereign’s conduct appears

irrational, malicious, or otherwise defective, it

15

would be an insult to God to challenge such

conduct.

In this nation we long ago abandoned the

hypotheses which, if believed, might rationally

support the notion of sovereign immunity.

Today

sovereign

immunity

accomplishes

exactly what a rational mind would expect it to

accomplish:

It insulates government agencies and

their high-level officials from independent judicial

review of the question of whether their conduct

conforms with the provisions of the Constitution and

laws enacted under the Constitution. All the rest of

us find our conduct subject to appropriate judicial

review.

Rather than help the effort towards sound,

rational and honest government sovereign immunity

quietly and pervasively undermines that effort. It is

16

human nature that we are more likely to fail to do the

right thing, or to do the wrong thing, if we know there

will be no personal consequences - in this instance in

the legal system as a result of the doctrine of sovereign

immunity - from our deficient conduct.

CONCLUSION

I request that the United States Supreme

Court take the first step to returning common sense,

and common sense reading of the words of the United

States Constitution and its amendments by issuing

its Writ of Certiorari to the United States Court of

Appeals for the 1st Circuit in this lawsuit for the

purpose of reviewing the propriety of the current

judicial interpretation of the 11th Amendment to the

United States Constitution.

17

Respectfully submitted,

Paul C. Nordberg Petitioner/Pro Se

3 Overhill Drive

Auburn, MA 01501-2406

Tel: (508) 832-6443

Email: Pauldeblee@aol.com

Friday; February 25, 2022

18