Petition for Writ of Certiorari — Simmons v. Burns

Supreme Court brief1988

Ask Donna

What actually matters in this document.

Text

88-693. wTLEe

OCT 27 1988

=_—_—- :GOSEPH F. SPANIOL, JR.

CLERK

No.

IN THE

Supreme Court of the United States

OctToBEeR TERM, 1988

AUGUSTUS J. SIMMONS,

Petitioner,

J]. WILLIAM BURNS, COMMISSIONER

CONNECTICUT DEPARTMENT OF TRANSPORTATION;

T. ALLAN McARTOR, ADMINISTRATOR,

FEDERAL AVIATION ADMINISTRATION;

EDWARD ROGIN, ESQ., er at,

Respondents.°

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Aucustus ]. SIMMONS

Pro Se

Address:

P.O. Box #1

Windsor, CT 06095

QUESTIONS PRESENTED FOR REVIEW

1. Whether a Judgment rendered by a State Referee

to take private lands for the benefit of a Federal agency,

Federal Aviation Administration, without statutory authority,

without jurisdiction, without appraisals, without due com-

pensation, and, in concealment of illegal and unlawful leases

entered into between the Connecticut Department of Trans-

portation and the Federal Aviation Administration — _ is

invalid.

2. Whether the Federally protected rights under 49

C.F.R. part 25, promulgated by the United States Depart-

ment of Transportation as the lead agency, upon the dictates

of P.L. 91-646 and P.L. 100-17, having been denied to

Petitioner in the unconstitutional seizure of private property

for Federal navigational aids has resulted in unjust, un-

reasonable, arbitrary, and capricious acts by Defendants.

3. Whether the Courts below erred in dismissing a

private property owner's action for declaratory and injunc-

tive relief against the Federal Aviation Administration, and

its agents, as being engaged in an ongoing navigational

servitude upon Petitioner.

4. Was the Defendants’ entry upon private property

of Petitioner, installation of its navigational aids on the

property, and re-entry to maintain and extend such equip-

ment, actionable as a trespass absent payment of due com-

pensation and failure to institute due process proceedings

under 49 U.S.C. §1348(b), 42 U.S.C. § 4633(a)(b) and

49 C.F.R. §§ 25.101, 25.102?

Ee re

5. Whether the Courts below erred in dismissing a

private property owner's action against the Federal Aviation

Administration, and its agents, for engaging in fraud, duress,

collusion, conspiracy and bad faith in violating the owner's

right to exclude.

6. Did the District Court err in granting summary

judgment for Defendants (Rogin-Hirtle ) ?

ili

“LISTING OF PARTIES

Petitioner, Augustus J. Simmons, P.O. Box #1, Windsor,

CT 06095

Respondents and other interested parties,

McArtor, T. Allan, F.A.A. Adm., 800 Independence Ave. S.W.,

Washington, D.C. 20591

Ohta, Leslie C., Asst. U.S. Atty., P.O. Box 1824, New Haven,

CT 06508

Shimelman, Arnold K., Asst. Atty. Gen., 90 Brainard Road,

Hartford, CT 06114

Rogin, Edward, Atty., CityPlace, Hartford, CT 06103

Byrme, Thomas P., Atty., 790 Farmington Ave., Farmington,

CT 06032

Conn. National Bank, c/o Ilonna Crosswhite, Esq., 777 Main

St., Hartford, CT 06115

Diamond, Jerome H., 25 Arlen Way, West Hartford, CT 06117

Simmons, Leonidas D., 41 Applegate Lane, Apt. 306, East

Hartford, CT 06118

Allaire, Mr. & Mrs. Leonard, 13A Heritage Drive, Windsor,

CT 06095

Valente, Mr. & Mrs. Patsy, 205 Forest St., East Hartford,

CT 06118

Roncari, Angelo, 2 Granger Circle, East Granby, CT 06026

Roisman, Atty. Gerald A., 31 Grand St., Hartford, CF 06106

Rowlson, John F., 135 Day St., Newington, CT 06111

Massow, Mr. & Mrs. John, 28 Maude Cir., Windsor, CT 06095

Endee, Albert, 187 Broad St., Windsor, CT 06095

Kataja, John, 2 Carter Court, Glastonbury, CT 06033

Dean, Atty. Margaret, 29 Whitney Ave., New Haven, CT

06510

Mikulske, Gerald F., 93 Hayden Station Road, Windsor,

CT 06095

Muskatallo, Ronald, 124 Hebron Ave., Glastonbury, CT 06033

Cassidento, Atty. Ronald, 543 Prospect Ave., West Hartford,

CT 06105

Silverman, Atty. Stephen, 55 State St., Springfield, MA 01103

Hirtle, Atty. Robert, CityPlace, Hartford, CT 06103

Salzman, David, 31 Church Road, Bedford, NH 03102

Rothammer, Frank, Center St., Town Hall, East Granby,

CT 06026

Bartizek, John J., 555 Main St., Hartford, CT 06103

D’Estito, Rocco, 30 Melrose St., East Hartford, CT 06108

Reilly, Atty. George A., 23 Old King Hwy. South, Darien,

CT 06820-0515

Lichtenberger, Paul H., Esq., 50 Columbus Blvd., Hartford,

CT 06106-2819

Lynch, Traub, Keefe & Errante, P.C., 52 Trumbull St., P. O.

Box 1612, New Haven, CT 06506

Laschever, Atty. Richard, 440 Main St., East Hartford, CT

06118

Main, Philip D., Esq., P.O. Box 544, Simsbury, CT 06070

Libbey, Morton H., Jr., Esq., One State St., P.O. Box 31277,

Hartford, CT 06103-3176

Bass, Atty. Walter E., Jr., P.O. Box 289, Warehouse Point,

CT 06088

Jackson & Nash, Attorneys, 330 Madison Ave., New York,

NY 10017

Questions Presented for Review

TABLE OF CONTENTS

Lésting of Pasties... ...cccectansccnaseaccepyeneees

Table of Amtiveriiies ..g co ccvcncaucecsesendeaeee

Opinions BatOW oo iccecccccnscctscnenveseuesnsuues

Statement of Jurfediotiom «.......ccnnsesecivesseeus

Statues TawGWVG cc ccccccccunsconcsedeucesneeee

Statement of the Case .............ccccccccccccucee

Argument

Conclusion

Appendix

Vii

PE tera evoires or ustee rere ieee eee 16a

RN Ne ee ee De AR mee wR MRE al oy er Tata 2la

oe ca tee Re eed om re Ae eek 24a

a OD On NE WATE ire ge Se AL 33a

Vili

TABLE OF AUTHORITIES

CASES Page

Atlanta v. United States, 531 F. Supp. 506 (1982) ..... 16

Bell v. Hood, 327 U.S. 678, 684, 66 S. Ct. 773, 777, 90

eR rrr rrr er rr reer rer rer er err Tr 20

Griggs v. County of Allegheny, 369 U.S. 84, 89-90, 82

Bee Ses Seer rrr rrr 18

Kaiser Aetna et al v. United States, 444 U.S. 164........ 18

Kupster Realty Corp. v. State, 404 N.Y.S.2d 225 ....... 18

Loretio v. Teleprompter, 102 S. Ct. 3164 (1982) ...... 24

New Haven v. East Haven, 35 Conn. Sup. 157 ........ 18

OBoule v. Bool, S50 FBG TOG o.oo ccisecenicns. 25

Portsmouth Co. v. United States, 260 U.S. 327 ........ 18

Simmons v. Wetherall, 472 F.2d 509 (1973) ....... 2, 16

Simons v. United States, 413 F.2d 531 (1969) ......... 21

Same wv. Gear, TH Cote, Ge on. nee cee seca. 18

United States v. Causby, 328 U.S. 256 (1946) ........ 23

United States v. 341.45 Acres of Land, St. Louis, Minn.,

Pe Ee os oes ee eee eee 15

United States v. New Haven, 447 F.2d 972 (1971) .... 17

United States v. Wyoming, 331 U.S. 440, 67 S. Ct. 1319,

a rr ee ir ee ee 21

White v. Union Producing Co., 140 F.2d 176 .......... 25

STATUTES

Ce re ne anaes ern 6

eT ii Sirsa anne Coal a nkwicae ee 6

WF MPa ROOD noo ioe oe) os eedvous ee xbaks 2

Oe RP NID i 5 oo ss keene ans vacvanidawwks 7

Mo USC. 9 1448(a)(1) oo. acc cnccnccccee 7

MP UA GIAO G) occa vcccancacsccsccae 7

PW DN is a ok saa boob ann dncaacevas; 8

Oe Pee RN hoa ns Sea ae eee ee 17

a) 4

MP UR. BUI i ihe nc dn cc chnccns 17

th ee 17

oo I ek) a a 3, 17

Giger Oe or era his wiht cedauleuss, 11

ni Io or ekie FRG N eas erie x dc nue cadecras 11

5th Amendment, U.S. Constitution .................. 7

REGULATIONS

Ton yer rere ree 19

ee | ee errr rere fer a ter 4

SS | eer errr Tres rere cer 4

ee ener Peer ry Torey 20

Memorandum of February 27, 1985 - 50 F.R. 8953 .... 20

COMMENTATORS

10 Wright and Miller, Federal Practice and Procedure

bc a ee ee 22

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner respectfully prays that a writ of certiorari issue

to review the order and opinion of the United States Court

of Appeals for the Second Circuit entered in this proceeding

on September 14, 1988.

OPINIONS BELOW

The District Court final judgment denying Petitioner’s

motion to reconsider and dismissing all remaining claims

against all remaining Defendants, dated May 18, 1988, is

printed at page 2a, infra, and is not officially reported.

The judgment of the United States Court of Appeals for the

Second Circuit, dated September 14, 1988, is printed at page

4a, and is not officially reported. [88-6093].

The District Court judgment on the Federal, State, and

Airlines’ motion to dismiss AUGUSTUS J. SIMMONS’ com-

plaint, dated April 10, 1985, is printed at page 6a, infra,

and is not officially reported. The judgment of the United

States Court of Appeals for the Second Circuit, dated

November 22, 1985, is printed at page 7a, infra, and is not

officially reported. [85-6087].

The petition for a rehearing on the Federal Defendants’

motion to dismiss AUGUSTUS J. SIMMONS’ ejectment

action by the United States Court of Appeals for the Second

Circuit, dated February 10, 1984, was denied and is printed

at page Ya, infra, and is not officially reported. [83-6257].

The District Court judgment on the Federal Defendants’

motion to dismiss AUGUSTUS J. SIMMONS’ ejectment com-

plaint, dated August 24, 1983, is printed at page lla, infra,

and is not officially reported. The judgment of the United

States Court of Appeals for the Second Circuit, dated

December 20, 1983, is printed at page 12a, infra, and is not

officially reported. [83-6257].

The District Court order on motion of AUGUSTUS J].

SIMMONS on withholding of Federal funds for airport

development, filed under combined cases of H-81-778 and

83-6043 was denied as moot on August 17, 1983 and _ is

printed at page 15a, infra, and is not officially reported.

Appeal No. [83-5141].

The District Court ruling on Federal Defendants motion

to dismiss complaint of AUGUSTUS J. SIMMONS, dated

February 7, 1983, is printed at page 16a, infra, and is not

officially reported. The opinion (statement) of the United

States Court of Appeals for the Second Circuit, dated June

9, 1983, is printed at page 2la, infra, and is not officially

reported. [83-6043].

The District Court ruling on Defendants’ motion to

dismiss and discharge attachments in a civil rights action

by AUGUSTUS J. SIMMONS, Civil No. 14806, dated April

3, 1972, is printed at page 24a, infra. The judgment of the

United States Court of Appeals for the Second Circuit,

dated January 19, 1973, is printed at page 33a, infra, and

is officially reported at Simmons vy. Wetherall, 472 F.2d

509 (1973).

STATEMENT OF JURISDICTION

The date of the order and judgment of the United States

Court of Appeals for the Second Circuit sought to be re-

viewed is September 14, 1988, which is also the date of iis

filing. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1) and under rule 17.1 of the United States

Supreme Court Rules.

STATUTES INVOLVED

The Federal Aviation Act of 1958, as amended, Title 49,

United States Code, section 1348(b), states as follows:

“The Administrator is authorized within the limits

of available appropriations made by Congress, (1) to

acquire, establish, and improve air-navigation facilities

wherever necessary; (2) to operate and maintain such

air-navigation facilities; (3) to arrange for publication

of aeronautical maps and charts necessary for the safe

and efficient movement of aircraft in air navigation

utilizing the facilities and assistance of existing agencies

of the government so far as practicable; and (4) to

provide necessary facilities and personnel for the regu-

lation and protection of air traffic.”

The Uniform Relocation Act of 1971, as amended, Title

42, United States Code, section 4633(a), states as follows

(cited in pertinent part):

“The head of the lead agency shall —

(1) develop, publish, and issue, with the active

participation of the Secretary of Housing and Urban

Development and the heads of other Federal agencies

responsible for funding relocation and acquisition actions,

and in coordination with State and local governments,

such regulations as may be necessary to carry out this

chapter.

(3) Monitor, in coordination with other Federal

agencies, the implementation and enforcement of this

chapter and report to the Congress, as appropriate, on

any major issues or problems with respect to any policy

or other provision of this chapter.”

The regulations promulgated pursuant to Title 42 U.S.C.

section 4633(a) are contained in 49 C.F.R. §§ 25.101 and

25.102. 25.102 (basic acquisition policies) reads (cited in

pertinent part):

(a) [Expeditious Acquisition] The agency shall

make every reasonable effort to acquire the real prop-

erty expeditiously by negotiation.

(b) [Notice to Owner] As soon as feasible, the

owner shall be notified of the agency's interest in ac-

quiring the real property and the basic protections

provided to the owner by law and these regulations.

the initiation of negotiations, the real property shall be

appraised and the owner or the owners designated

representative shall be given an opportunity to accom-

pany the appraiser during the appraiser's inspection of

the property.

(d) [Establishment and Offer of Just Compensation]

Before the initiation of negotiations, the agency shall

establish an amount which it believes is just compensa-

tion for the real property. The amount shall not be less

than the approved appraisal of the fair market value

of the property, taking into account the value of allow-

able damages or benefits to any remaining property.

Promptly thereafter, the agency shall make a written

offer to the owner to acquire the property for the full

amount believed to be just compensation.

(f) [Basic Negotiating Procedures] The agency

shall make reasonable efforts to contact the owner or

the owner's representative and (1) discuss its offer to

purchase the property including the basis for the offer

of just compensation, and (2) explain its acquisition

policies and procedures, including its payment of in-

cidental expenses in accordance with § 25.106. The

owner shall be given reasonable opportunity to consider

the offer and present material which the owner believes

is relevant to determining the value of the property

and to suggest modification in the proposed terms and

conditions of the purchase. The agency shall consider

the owners presentation.

(h) [Coercive Action] The agency shall not ad-

vance the time of condemnation, or offer negotiations

or condemnation or the deposit of funds with the Court,

or take any other coercive action in order to induce

an agreement on the price to be paid for the property.

(j) [Payment Before Taking Possession] Before

requiring the owner to surrender possession of real prop-

erty, the agency shall —

(1) pay the agreed purchase price to the

owner; or

(2) in the case of a condemnation, deposit

with the Court, for the benefit of the owner, an

amount not less than the agency's approved ap-

praisal of the fair market value of such property,

or the Court award of compensation in the con-

demnation proceeding for the property.

In exceptional circumstances, with the prior ap-

proval of the owner, the agency may obtain a right-of-

entry for construction purposes before making payment

availavle to an owner.

(1) [Inverse Condemnation] If the agency intends

to acquire any interest in real property by exercise of

the power of eminent domain, it shall institute formal

condemnation proceedings and not intentionally make

it necessary for the owner to institute legal proceedings

to prove the fact of the taking of the real property.

The Administrative Procedure Act [5 U.S.C. §701, and

5 U.S.C. § 702] (cited in pertinent part):

5 U.S.C. §701 —

(a) This chapter applies, according to the provi-

sions thereof, except to the extent that —

(1) statutes preclude judicial review; or

(2) agency action is committed to agency

discretion by law.

5 U.S.C. § 702 —

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is en-

titled to judicial review thereof. An action in a Court

of the United States seeking relief other than money

damages and stating a claim that an agency or an

officer or employee thereof acted or failed to act in an

official capacity or under color of legal authority shall

not be dismissed nor relief therein be denied on the

ground that it is against the United States may be

named as a defendant in any such action, and a judg-

ment or decree may be entered against the United

States; provided, that any mandatory or injunctive

decree shall specify the Federal officer or officers (by

name or by title), and their successors in office, per-

sonally responsible for compliance. Nothing herein

(1) affects other limitations on judicial review or the

power or duty of the Court to dismiss any action or

deny relief on any other appropriate legal or equitable

ground; or (2) confers authority to grant relief if any

other statute that grants consent to suit expressly or

impliedly forbids the relief which is sought.

STATEMENT OF THE CASE

Augustus J. Simmons, the Petitioner herein, commenced

this action for declaratory and injunctive relief against the

United States of America, the Federal Aviation Administra-

tion (F.A.A. herein), the State of Connecticut and the

Connecticut Department of Transportation (State herein),

the Metropolitan District Commission of Hartford, Connect-

icut, and several lienholders and attorneys representing the

respective interests (see listing page ii), all respondents

herein pursuant to an action initiated in the State Court

on August 10, 1987, moved to the United States District

Court for the State of Connecticut on a verified petition

for removal of a civil action from State Court by T. Allan

McArtor, Administrator, F.A.A., dated September 21, 1987,

pursuant to 28 U.S.C. § 1441(b), § 1442(a)(1) and § 1446

(d), seeking declaratory and injunctive relief against the

illegal and unlawful seizure and utilization of three parcels

of land in the town of East Granby, Connecticut, without

due process, without compensation, in violation of the Fifth

and Fourteenth Amendments to the Constitution of the

United States, and to recover damages for trespass and ex-

penses Congressionally mandaied by Federal regulations and

State statutes, promulgated pursuant to P.L. 91-646 and

amendments to the Uniform Property Acquisition Act

P.L. 100-17.

On or about February 28, 1962, the State of Connecticut

filed a taking on the Land Records of the Town of East

Granby, Connecticut, at Vol. 38, P. 596, without notice and

without compensation. Upon placement of the condemnation

notice on the Land Records, F.A.A. proceeded to install

the I.L.S. (instrument landing system) on SIMMONS’ prop-

erty. No compensation was paid by F.A.A. to the owner, no

compensation was paid by F.A.A. to the State, and NO com-

pensation by F.A.A. was paid into the Court as required by

law. It is a FACT that F.A.A. has not paid ONE DOLLAR

for the trespassing on Simmons’ property from 1962 to the

filing of this appeal. Petitioner made written demand of

F.A.A. on several occasions, most recently in 1982 and 1983,

for rent for use of the premises, and was rebuffed. On

November 11, 1964, Anastasia Simmons sold all of the prop-

erty that is subject of this dispute to Augustus J. Simmons.

On October 25, 1967, SIMMONS prevailed in a State Court

action and had the taking of February 28, 1962 adjudicated

illegal (155 Conn. 502). In 1967, SIMMONS began an action

for ejectment, trespass, and to quiet title against the State

in the State Court. (This action would continue to 1977.)

On January 25, 1968, the State again filed a taking on the

Land Records at Vol. 46, P. 113. On March 30, 1971,

SIMMONS again prevailed in the State Court to have the

second taking declared illegal, null and void (160 Conn. 492).

In 1971 SIMMONS brought an action in Federal District

Court against the STATE and various of its officials under

the Civil Rights Act, 28 U.S.C. § 1983. In its decision of

January 19, 1973, reported at 472 F.2d 509 (2nd. Cir., 1973),

the United States Court of Appeals for the Second Circuit,

on appeal from dismissal of the complaint, reversed and

remanded with orders to stay the action in the District Court

pending resolution of the boundary dispute in State Court.

In November 1974, upon orders from the Administrator

of the F.A.A., a permanent security fence was erected around

the airport and SIMMONS’ land, without notice, without

compensation. In 1974, Simmons brought an action in the

District Court against both the State and the F.A.A. for an

injunction against Federal funding. The injunction was denied

on November 5, 1974, without prejudice and with the added

note that “[ijn the event that the State Court unduly delays

the litigation, the Plaintiff may renew his claim[.]”, ruling

on Plaintiffs motion for a preliminary injunction, J. Clarie,

dated November 5, 1974, case no. H-74-148.

The record shows the complaint for a preliminary in-

junction against Federal funding until such time as the F.A.A.

or the Secretary of Transportation of the United States

acquires good title to the property upon which landing aids

are located (civil action H-74-148) was filed May 6, 1974,

Defendant State moved for an enlargement of time to July 7,

1974, to answer the complaint, motion was granted on June

5, 1974, and simultaneously while defending the action in

the Federal Court, the F.A.A. and the State are entering

into a lease of Plaintiff's property. The lease was signed on

behalf of F.A.A. by Roland Bisson on May 24, 1974, and

on behalf of the Connecticut Department of Transportation

by Commissioner Joseph B. Burns on June 11, 1974, and by

the Attorney General's office on July 26, 1974, and in the

lease, DOTFA 74 NE-0369, Item 10, Page 4 reads: “[t]he

lessor hereby warrants that it has acquired and possesses an

adequate real estate right in the property described herein,

and that it is authorized to grant to the government the

rights and interests set forth herein.” Property taxes continued

to be due and owing by Petitioner to the Town of East

Granby while the F.A.A. maintained a servitude upon

Petitioner.

From December 1974 to the present, SIMMONS re-

moved the fence and erected “no trespassing” signs on

several occasions. In the ejectment and quiet title action,

(Docket #162923) a trial was had for thirty days between

May 1, 1975 and April 30, 1976. On January 11, 1977,

Simmons prevailed in the quiet title action and was granted

damages for trespass and the State was to quit the land

within one hundred (100) days. The State never appealed

the decision of Referee L. Shapiro of January 11, 1977, and

the rental fee of the property from 1964 to 1969 has never

been paid. A new and separate action (Docket #199230)

was initiated in the State Court in 1977 for rental and

damages from 1969 until litigation was concluded.

Several hearing dates for damages (Docket #163875 —

return date Jan. 1970) were assigned for December 1977

and January 1978 before Referee L. Shapiro, however, not

a single hearing date was held and all scheduled dates were

cancelled. Hearing dates scheduled were December 6, 7, 8,

13, 14, 15, 20, 21, and 22, 1977, and January 3, 4, 5, 10, 11,

and 12, 1978.

On December 13, 1977, the State, in concert with Plain-

tiff's attorneys (Rogin-Hirtle), informed Plaintiff to “sur-

render,” in total, all three parcels of real property without

establishing fair market value (appraisals), without an assess-

ment of damages, without any consideration for taxes being

paid on the property since 1924, but, utilized by the F.A.A.

for an I.L.S. (instrument landing system) since 1962. The

negotiations and surrender of December 13, 1977 were

totally and completely rejected on December 15, 1977 by

Plaintiff. Petitioner was not aware, was not informed by

Defendants or Plaintiff's counsel that Congress in 1971 en-

acted the Uniform Real Property Acquisition Act for uni-

formity in dealing with private property owners where

Federal projects or Federal funding is involved.

On January 4, 1978, the State, in concert with Plaintiff's

attorneys (Rogin-Hirtle), informed Plaintiff that ALL of the

property was not required for airport operations and a

second package deal, arranged without Petitioner's know]-

edge, without establishing fair market value (appraisals),

without considering damages, particularly where there were

two aborted condemnations in 1967 and 1971, and the pro-

posal was to date matters back to November 12, 1964, date

of acquisition of the real property from his mother, notice

was again submitted to the State and Plaintiff's attorneys

there would be no completion of contracts as evidenced by

the exhibit of the proposed closing date of April 19, 1978.

No action of any kind alleging noncompliance with January

4, 1978 proceedings was brought by the State. There is no

statutory or procedural authority to wrest the property from

its owner by Referee L. Shapiro without having brought

suit thereon.

At neither of the abbreviated sessions of December 13.

1977 or January 4, 1978 was any mention or reference made

to F.A.A., their exclusive jurisdiction and responsibility for

the navigational aids on Plaintiff's property, or, their con-

tinual utilization, without compensation, of the premises.

On June 2, 1978, Referee Shapiro, at the urging of

Plaintiff's attorneys, who had withdrawn from Simmons’

matters on April 19, 1978, and instituted suit against Plain-

tiff, renders a Supplemental Judgment without acquiring

jurisdiction of the subject matter, without service of process

upon all parties to the action, without any determination

of fair market value or damages, without any legal or statu-

tory authority and in complete disregard for the uniform

procedures required in acquiring real property for a Federal

project, declares: “I am taking this land for the State of

Connecticut.” Connecticut General Statutes 48-12 and 8-129

outline the prerequisites to such dictatorial practice.

On June 7, 1982, Asst. Atty. Gen. Victor Feingold for

the State of Connecticut, stated to the Court (Dupont, A.,

Judge) that the judgment of Referee Shapiro of June 2.

1978 was a nullity, null and void, that Referee Shapiro

never had jurisdiction to seize private property for a Federal

project, that no action was ever brought by the State to

enforce any negotiations — [and] the Statute of Limitations

has passed and the State cannot enforce any agreements of

1977 and 1978, and — the State should NOT pay any com-

pensation to any leinholders to acquire title to the property.

On July 7, 1982, by memorandum of decision, Judge A.

Dupont, upon the characterizations of Asst. Atty. Gen.

Feingold, REFUSED to pay any further compensation.

Unless a judgment concludes a matter, there is no finality

and Referee Shapiro, by his own memo of July 18, 1980

(Petitioner's Ex. #5), acknowledged he did not, could not,

finalize the matier and perhaps the Superior Court could

handle the complications he anticipated. The Judgment of

June 2, 1978, lacking finality in character and not susceptible

of enforcement, cannot put an end to litigation, must be

set aside.

On October 15, 1981, Petitioner initiated an action in

the District Court (H-81-778) for injunctive relief and puni-

tive damages. During 1983 an ejectment action (Docket

#83-225) was initiated and on August 16, 1983, District

Judge Cabranes dismissed the complaints on res judicata.

[t was not until April 1982 that Petitioner, through the office

of Atty. Margaret Dean, could establish the nature and con-

tent of the agreement of January 1955 wherein the State

and Federal agencies were to cooperate in obtaining the

necessary land interests for Federal navigational aids, and,

with the 1955 agreement, a copy of the 1974 lease from the

State of Connecticut to the F.A.A. of Petitioner's real prop-

erty was submitted.

On January 23, 1985, an action was again instituted in

the Federal Court (H-85-45), was assigned to Judge Blumen-

feld, and the matter was characterized by Judge Blumenfeld

as a State matter and dismissed on the grounds of res judicata.

Included in this suit were all airlines servicing Bradley

International Airport and using Runway 6 with the aid of

navigational instrumentation on Petitioner's property. The

Second Circuit dismissed on res judicata (Docket #85-6087).

Petitioner initiated a “Claim for Declaratory Judgment”

in the State Court on February 3, 1984, in which rulings

were sought on eleven different issues. The State Court

refused to hear argument from Petitioner and all claims were

denied by the Court, Edelberg, J. On appeal to the State

Court of Appeals, the Appeals Court in 3 Conn. App. 672,

released May 7, 1985, stated: “[b]ecause of the unusual

stance of this case, we do not reach the issue of res judicata,

raised by Defendants, since the Plaintiff was not allowed

to argue this claim. Nor do we reach the question of whether

judicial patience was so stretched by over twenty years of

litigation that the Trial Court unfairly denied the Plaintiff

a chance to be heard again.” “Even had the Plaintiff's claim

been legally proper, the record is devoid of any notice to

the myriad interested persons, cited in the Claim for

Declaratory Judgment, who were not parties to the original

suit involved.” The record is ultra clear that Defendants,

responsible for the acquisition, have never served notice io

the myriad interested persons, which is a necessary prere-

quisite for due process and compensation.

On August 10, 1987, Petitioner filed a new action in

State Court, Docket #334855, in which process of service

was made on all necessary parties, excluding the airlines,

and, after a flurry of motions, none of which were acted

upon, a verified Petition for the Removal of a Civil Action

from State Court was filed by T. Allan McArtor, Admin-

istrator, F.A.A., on September 21, 1987. From its removal

to Federal Court on Septernber 21, 1987, to present, no

hearings were permitted or addressed pursuant to due

process, failure to pay just compensation, fraud, duress, con-

spiracy, and collusion engaged in by the State and Federal

agencies to lease and trespass upon Petitioners property

without paying for ihe privilege or notifying the owner.

” c « c

The record is devoid (BLANK) of any due process

attempt by the State or the F.A.A. to acquire the subject

property since the condemnation attempt of January, 1968,

ruled null and void in 1971 by the State Supreme Court

(160 Conn. 492). The alttempt to acquire private property

for a Federal project via Plaintiff's damage action (Docket

#163875 (1970) ) in 1978 or in 1988 cannot be done. Process

of service in an independent action with its own return date

for the myriad interested persons must be made by the

F.A.A., or its agent, damages must be assessed and no litiga-

tion was or could have been made or had by Plaintiff when

no action was ever initiated by the Defendants. The filing

of the Supplemental Judgment of June 2, 1978, was legally

and procedurally impermissible without statutory authority,

and Defendants could not, did not, bring suit for enforce-

ment of a null and void judgment that was not conclusive

upon the parties and, therefore, could not terminate the

litigation.

The decision of the Appeals Court in the verified Peti-

tion for Removal of a Civil Action from State to Federal

Court (88-6093), filed September 14, 1988, did NOT address

the issues before the Court. A motion filed with the Appeals

Court dated July 8, 1988, tor “Request to Hear En Banc

the Navigational Servitude Imposed Upon Plaintiff by the

Federal Aviation Agency, F.A.A.” did not get acted upon

until September 21, 1988, eight days after oral argument.

and was obviously denied. The Federal regulations promul-

gated for uniformity in land acquisitions, nationwide, are

not permitted at the Hartford District Court level. Damages

that are mandated by Federal regulations and reaffirmed by

Public Law 100-17, effective April 2, 1987, are not permis-

sible at the Hartford District Court level. The fraud engaged

in by the State and Federal agency in leasing of Petitioner’s

property, without compensation, is not, can not be addressed

at the Hartford District Court level. The basic service of

process upon all necessary parties to the action for resolution

is not permissible by the District Court at Hartford. The

basic requirement of appraisals to establish fair market value,

applied to each and every Federal project across the country,

nationwide, is not permissible by the District Court in

Hartford.

The case at bar might be compared to a statement

made by a national park service land acquisition officer at

a public meeting in Voyageurs National Park in August 1977,

(excerpt from: U.S. v. 341.45 Acres of Land, St. Louis, Minn.,

751 F.2d 924 (1984) ), Page 927, “[m]y job is to acquire

this land for the National Park Service. I hope to acquire

it for about 30 [cents] on the dollar. If the landowners

cannot accept our reasonable offers, we let the matter ride

for a few years. Then if necessary, we go to Court, including

trials and appeals. This procedure is very expensive for the

landowners. If we cannot agree on our terms, the landowners

can hire lawyers at one-third [referring to contingency fee

arrangements] and pay the Court costs in addition. All of

this takes some several years.”

One of the major differences between the case at bar

and the above statement is that (Rogin-Hirtle), in concert

with the Attorney General's office, — on behalf of the

F.A.A., — attempted to acquire the subject property for

TEN (10) CENTS ON THE DOLLAR and forget dam-

ages for property that was NOT taken — but condemned

twice and abandoned.

ARGUMENT

The decision of the United States Court of Appeals for

the Second Circuit affirming the District Court's judgment

dismissing SIMMONS’ complaint should be reviewed by

this Court to resolve an apparent conflict between the Court

of Appeals and legislation sponsored by Congress and the

Justice Department, and decisions of other jurisdictions con-

cerning the acquisition of private property for Federal proj-

ects or where Federal aid is involved.

There is an apparent and obvious conflict between the

Court of Appeals of the Second Circuit and other juris-

dictions over the responsibility for acquisiiion of private

property for Federal projects by the Federal Aviation

Administration for the installation, maintenance and upkeep

of its navigational aids in maintaining air safety in and

around airports. The F.A.A. has argued in other jurisdictions

that the installation of navigational aids and the development

of flight paths and procedures are in themselves major

Federal actions necessary to make runways operational at

all major airports, including Bradley Airport at Windsor

Locks, Connecticut. Not only must the F.A.A. “formulate

and ddopt approach and departure procedures to be used

by aircraft operating in the navigable airspace relating to

the runways,” they must also “establish, operate, and main-

tain the various air navigation facilities to be used by air-

craft approaching to and from the runway.” Stipulations of

fact: Atlanta v. United States, 531 F. Supp. 506 (1982).

In the case at bar, the Second Circuit has continually

attempted to shelter the Federal agency by referring to the

navigational aids as a State responsibility which is totally

erroneous. A reading of Simmons v. Wetherall, 472 ¥.2d 509

(1973) claims that if the State installs an instrument landing

system on Plaintiff's land, and a fence, without paying

compensation or bringing an action, then Plaintiff would

have a claim. The fact that the United States Congress has

granted the F.A.A. “exclusive jurisdiction” over the navigable

airspace of the “clear zone” and “exclusive jurisdiction” over

the location, installation and maintenance of its navigational

aids means specifically that the State, municipality, or any

other government entity has no jurisdiction whatsoever over

the clear zone area. In another Connecticut case, United

States v. New Haven, 447 F.2d 972 (1971), the Court ruled

that the clear zone is the exclusive jurisdiction of the F.A.A.

The clear zone being the innermost part of the approach

zone at the end of a runway extends out 2700 feet from

the end of Runway 6 at Bradley International Airport, thus

utilizing approximately three acres, or one-half the acreage

of one of three parcels in dispute.

The Federal Aviation Act of 1958 (Act), 49 U.S.C.

§ 1301-1542 (1976), authorizes the F.A.A. to promote air

safety, 49 U.S.C. §§ 1303(a), 1655(c)(1) (1976), and to

regulate the use of navigable airspace, 49 U.S.C. §§ 1348(a),

1655(c)(1) (1976). Section 1348(b) reads crystal clear that

the Administrator is authorized to: (1) acquire, establish,

and improve air navigation facilities wherever necessary.

If the F.A.A. wants to delegate, subrogate, contribute finan-

cially to the acquisition of real property for its navigational

aids, the Uniform Act, P.L. 91-646, sec. 208 (42 U.S.C.

§ 4628), requires that “[w]henever real property is acquired

by a State agency at the request of a Federal agency for a

Federal program or project, such acquisition shall, for the

purposes of this act, be deemed an acquisition by the

Federal agency having authority over such program or project.

F.A.A. could argue that the airspace above the F.A.A.

airport landing and takeoff approaches is part of the Federal

navigable airspace, and thus part of the Federal public

domain — but the Federal government has decided not to

fully preempt its rights of control therein, the reason stated

for this Federal reticence as referenced in Kupster Realty

Corp. v. State, 404 N.Y.S.2d 225 at Page 231 is that a full

Federal preemption would most likely subject the Federal

government to the inverse condemnation suits currently

brought against local airport owners, or require it to appro-

priate navigation easements. While the policy of the United

States Supreme Court has been that liability for aircraft

noise damage should be imposed upon the owner and operator

of the airport, not the Federal government (see Griggs v.

County of Allegheny, 369 U.S. 84, 89-90, 82 S. Ct. 531, 7

L.Ed.2d 585), such is not the case at bar. An invasion of

the airspace cannot be categorized with an invasion of the

surface of private property and the installation of permanent

structures thereon. In such instance the government lacked

the authority to open up the airspace to the public without

payment of compensation to the owner; (see Kaiser Aetna

et al v. United States, 444 U.S. 164; see also Portsmouth Co.

v. United States, 260 U.S. 327).

Accordingly, the State Courts of Connecticut have

recognized that there is no valid enabling legislative au-

thority in State statutes to acquire land for the purpose

intended here. In New Haven vy. East Haven, 35 Conn. Sup.

157 at P. 170, the State Court recognized that Tweed

Municipal Airport, by Federal regulations, is authorized to

acquire land to maintain airport approach zones, including

clear and transition zones, 14 C.F.R. § 152.85(d), which

presently is 14 C.F.R. § 151.73. NO record is available of

when the transition to 151.73 was made.

The law of the State of Connecticut has always required

definite standards in order that a delegation by the legisla-

ture to an administrative agency be Constitutional. In State

v. Stoddard, 126 Conn. 623, where extensive powers were

given (o a milk adininistrator by the legislature, the Court,

in holding that the delegation was unconstitutional, at page

628, said: “[a] legislature, in creating a law complete in

itself and designed to accomplish a particular purpose, may

expressly authorize an administrative agency to fill up the

details by prescribing rules and regulations for the operation

and enforcement of law. In order to render admissible such

delegation of legislative powers, however, it is necessary

that the statute declare a legislative policy, establish primary

standards for carrying it out, or lay down an intelligible

principle to which the administrative officer or body must

conform, with a proper regard for the protection of the

public interests and with such degree of certainty as the

nature of the case permits, and enjoin a procedure under

which, by appeal or otherwise, both public interests and

private rights have due consideration|[.]” (citations omitted).

The State, not having any regulations or standards for airport

expansion, cannot effect a valid Constitutional taking. Even

if the State had standards, they may be applicable to those

airports only when they have been approved by the Director,

Office of Airports Standards, or the appropriate Regional

Director (14 C.F.R. 152.101(c) ).

It is conceded by F.A.A. representatives that they have

never sought purchase or condemnation of the land upon

which Federal navigational aids are located. The F.A.A. has

conceded through its representatives that no search was

ever made of the Land Records to ascertain all persons

(Defendants) to be notified, prior to any hearing involving

compensation. Petitioner has never been contacted by F.A.A.

relative to purchase, easement, condemnation, compensation

or otherwise.

The State has acknowledged the fact that no further

condemnation has been attempted since the 1968 attempt

was ruled null and void in 1971. The State admits to having

withdrawn the deposit money from the Court for the null

and void taking of 1971. The State has never produced an

appraisal to establish fair market value. The State acknowl-

edges to never having brought any kind of action against

Petitioner for purchase discussions that faltered on December

13, 1977 or January 4, 1978 (Petitioner Ex. #8), and June 7,

1982. The State concedes that no service of process was

ever made and no return day established for all persons

whose names could be ascertained by a reasonably diligent

search of the Land Records. The State concedes to asking

the State Court not to pay compensation upon a null and

void judgment on June 7, 1982.

Based upon the concessions and acknowledgments that

are exhibits and matters of record, the position of res judicata

by the District Court and the Court of Appeals cannot be

supported, and was not supported, and cannot be directed

to any Court action by the State where the matter was

litigated or could have been litigated.

Where Federally protected rights have been invaded, it

has been the rule from the beginning that Courts will be

alert to adjust their remedies so as to grant the necessary

relief. Bell v. Hood, 327 U.S. 678, 684, 66 S. Ct. 773, 777,

90 L.Ed. 939 (1946). 49 C.F.R. part 25, subpart B details

the applicability and policies of these Federally protected

rights of Plaintiff. 42 U.S.C. § 4633(a)(3) requires the U.S.

Department of Transportation to monitor the implementa-

tion and enforcement of the regulations and report annually

to the President's Council on Management Improvement on

the implementation of the ACT. (Memorandum of February

27, 1985, 50 F.R. 8953).

Where the issue of FRAUD was put squarely before

the District Court and the Court of Appeals for the Second

Circuit and the Court refused to permit any hearing or

address the issue upon the illegal, unlawful, wanton leasing

of Petitioner's private property to the F.A.A. in 1974, co-

inciding with the installation of a “middle marker” by F.A.A.

on private land, without notice, without compensation, while

Petitioner is paying taxes on the property, and the State is

attempting to defend itself in an ejectment action, gives

strong indication that the District Court and the Court of

Appeals are remiss in attempting to harbor and shelter

such activity.

In Simons v. United States, 413 F.2d 531 (1969), the

threshold issue was whether damages could be recovered

for trespass by the United States. At page 535 Simons, supra,

it read: “[o]f prime consideration to the Courts in Texas is

the determination of whether the lessor and lessee ‘acted

in concert in doing the illegal act, or that the injury was the

ordinary or natural result of some act which they did.” At

page 536 Simons, supra, regards the lessor: “It is to be noted

that the U.S. Supreme Court has recognized by reference

that a lessor who leased lands it did not own was a trespasser.”

[United States v. Wyoming, 331 U.S. 440, 67 S. Ct. 1319,

91 L.Ed. 1590].

Petitioner appeals from an order granting Summary

Judgment for Defendants (Rogin-Hirtle). The standard for

the entry of Summary Judgment is set forth in Fed. R. Civ.,

p. 56(c):

The judgment sought shall be rendered forthwith

if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to

a judgment as a matter of law.

In reviewing a District Court's decision granting sum-

mary judgment, the same test applies. Thus, this Court

reviews the record de novo, to determine whether there

exists a material issue of fact.

The reviewing Court cannot decide disputed issues of

material fact; it only may determine whether a genuine issue

exists and whether the law was correctly applied. Accordingly,

it must reverse the grant of a summary judgment motion

if it appears from the record that there is an unresolved

issue of material fact. 10 Wright and Miller, Federal Practice

and Procedure § 2716 at 437-38 (1973).

The Judgment of the State Referee, concealing the

illegal and unlawful leases entered into between the two

bureaucracies, Connecticut Departmen: of Transportation

and Federal Aviation Administration, was done wilfully,

knowingly, with intent to deceive, and an attempt to shelter

the real party in interest — over whom the Referee has no

jurisdiction. In the Judgment entered on behalf of the Peti-

tioner on January II, 1977, case no. 162923, an ejectment

action commenced by writ on October 14, 1969, Judgment

was entered as follows by the very same Referee who

attempted to conceal the leases in 1978.

“Judgment for the Plaintiff granting him possession of

the land described in the Complaint as the title owner

thereof. The Defendants or their successors shall, within

100 days, vacate the land shown as Parcel C on the map

entitled ‘Property of Anastasia Simmons east side Rainbow

Road, East Granby, Conn., W. M. Alford Civil Engineer,

scale 1” - 60 ft., date October, 1964 and recorded at Vol. 12

(map) page 568 of the East Granby Land Records.”

“The Defendants, or their successors, within such legal

authority as may exist and permit, shall take appropriate

steps towards not renewing the lease to the United States

relative to the instrument landing lights situated on said

Parcel C. The Defendants or their successors shall pay to

the Plaintiff the amount of $37,813.64 for rent due through

October, 1969, together with an appraiser's fee of $1,800.00

and a map allowance of $250.00 to the engineer.” Signed,

Louis Shapiro, Referee. (Emphasis added.)

The above Judgment having been rendered on January

11, 1977 shows conclusively that Referee Shapiro had full

and complete knowledge of illegal and unlawful leases in

existence between the two bureaucracies and such informa-

tion was deliberately withheld from Petitioner on December

13, 1977 and January 4, 1978.

Additionally, quoting from page 13 of the Judgment of

January 11, 1977, it reads:

“I further conclude that the Defendants have entered

upon the Plaintiff's land without authority or permission for

them to do so; that the Defendants have excluded the Plain-

tiff from all use of said land and still keep him out of

possession, depriving him of rents and profits; that the entry

and taking of the Plaintiff's land by the Defendants is illegal

in that it is in excess of any statutory power given to them

to take and hold real property for an authorized purpose;

and that the entry and taking of the Plaintiffs land is un-

constitutional in that it constitutes a taking of property

without just compensation, and without due process of law

in violation of the Fifth and Fourteenth Amendments to the

Constitution of the United States and in violation of Article

First, Section II of the Connecticut Constitution. The Plain-

tiff is entitled to possession of aforesaid Parcel C.”

The above Constitutional violations rendered as part of

the Judgment — misses the mark completely by making no

reference to the invasion of the property by the F.A.A. The

State merely cut the timber in the approach and clear zones,

bulldozed the terrain and mowed the grass, without pay- ~

ment of damages, when the actual invasion of the surface

of Petitioners property by F.A.A. is analogous to the ap-

propriation of the use of private property in United States

v. Causby, 328 U.S. 256 (1946). There the Court found a

“taking” in the government's use of air space above the

claimant's land as part of the flight pattern for military air-

craft, thus destroying the use of the land as a chicken farm.

“Causby emphasized that government had not merely

destroyed property [but was] using a part of it for the flight

of its planes.”

In Loretto v. Teleprompter, 102 S. Ct. 3164 (1952), the

Court affirmed the traditional rule that a permanent physical

occupation of property is a taking. In such a case the prop-

erty owner entertains a_ historically rooted expectation of

compensation, and the character of the invasion is qualita-

tively more intrusive than perhaps any other category of

property regulation.

Duress is considered a type of fraud and where Peti-

tioner appeared before Referee Shapiro on January 4, 1978,

with new counsel, Attorney Robert King, having requested

orally and in writing that the Rogin-Hirtle law firm with-

draw from Simmons’ matters on December 22, and 23rd,

1977, as not representing his interests, and Petitioner's new

counsel was not permitted to represent Petitioner, such high-

handed disregard of statutes, regulations, and Petitioner's

rights to counsel of choice and Petitioner's rights under

Federal legislation where Federal projects or aid (49 C.F.R.

Subpart B) met with refusals to transfer of any real property,

within a matter of hours, not days — or a reasonable period

of time.

Throughout the Complaint in this case, and all previous

cases, is the attack on the State Court judgment that pro-

cedural due process was not observed, that Federally pro-

tected rights were denied, the concealment of material

facts pertaining to the leasing of Plaintiff's property bv the

Connecticut Department of Transportation to the Federal

Aviation Administration is fraud upon the Plaintiff, the

failure to pay due compensation in accord with Federally

mandated guidelines, the attempt to date matters back to

1964 to obviate the payment of damages where there have

been two (2) condemnations and some of the property has

since been abandoned, the economic coercion of subsidizing

the bureaucracies by paying taxes and lienholders while

they occupy the owner’s property — scott free, — can be

summed up with the citation from White v. Union Producing

Co., 5th Cir., 1944, 140 F.2d 176 at page 178: “Fraud vitiates

everything it touches, it is difficult to define; there is no

absolute rule as to what facts constitute fraud; and the law

does not provide one ‘lest knavish ingenuity may avoid it.’”

Citing from O’Boyle v. Bevil, 259 F.2d 506 at page 517:

“A judgment obtained by fraud is a nullity. To establish the

fraud as well as the want of jurisdiction to render the judg.

ment for failure to observe the requirements of the State

statutes, the Court in which the judgment is brought in

question may consider the entire record in the case, plead-

ings, process, and evidence.”

“The case before us presents a typical example where

equity will intervene to insure that Appellants are con-

demned only after hearing and that the whole proceeding

will be invested with ‘the attribute of justice upon which

the exercise of judicial power necessarily depends.’ ”

A suit presenting such a state of facts must appeal

strongly to the sense of justice of any tribunal.

CONCLUSION AND PRAYER

There now exists a conllict in the decisions of the District

Court and the Court of Appeals of the Second Circuit and

the laws of the United States as are set out in the United

States Code with reference to the interpretation and appli-

cation of Federal regulations to the Federal Aviation Admin-

istration, and its agents. Where, upon the evidence, an

ongoing navigational servitude is being imposed upon

Petitioner without basic fundamental due process or compen-

sation, this case should be remanded to the District Court

for a hearing on the merits.

For the foregoing reasons and upon the foregoing

authorities’ judgment for Defendants should be reversed and

the case remanded before an impartial arbiter.

Dated: October 27, 1988

Respectfully submitted,

Aucustus J]. SIMMONS

P.O. Box #1

Windsor, Connecticut 06095

(203) 569-6714

Augustus }. Simmons

Pro Se

APPENDIX

APPENDIX A

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS

WILLIAM BURNS, Commissioner, ALLAN McARTOR

Adm., FAA, ATTY. EDWARD ROGIN, JULIA Z

TASHJIAN, THOMAS P. BYRNE, CONNECTICUT

NATIONAL BANK AND TRUST, JEROME DIAMOND,

LEONIDAS D. SIMMONS, LEONARD ALLAIRE

MARIE ALLAIRE, PATSY VALENTE, ERNESTINE

VALENTE, ANGELO RONCARI, ATTY. GERALD A

XOISMAN, JOHN J. ROWLSON, JOHN MASSOW

FLORENCE MASSOW, ALBERT ENDEE, JOHN

KATAJA, ATTY. MARGARET DEAN, GERALD F-.

MIKULSKE, RONALD MUSKATALLO, ATTY. RONALD

CASSIDENTO, STEPHEN SILVERMAN, ATTY. ROBER]

HIRTLE, DAVID SALZMAN, FRANK ROTHAMMER.

JOHN J. BARTIZEK and ROCCO D’ESTITO

CIVIL NO. H-87-732 (JAC

FINAL JUDGMENT

This cause came on for consideration on plaintiff's

motion for reconsideration of the Court’s Ruling on Pending

Motions and Order, filed March 15, 1988, before the Honor

able Jose A. Cabranes, United States District Judge, and

the issues having been duly reconsidered and a Ruling on

Plaintiff's Objection to Court's Ruling of March 15, 1988,

having been filed on May 16, 1988, denying motion to

reconsider and dismissing all remaining claims against all

remaining defendants, pursuant to Rule 11, Fed.R.Ciy.P.,

[t is ORDERED, ADJUDGED and DECREED that

judgment be and is hereby entered in favor of all remaining

defendants (summary judgment having been entered in

favor of defendants Burns, Comm., McArtor, Adm. of FAA,

Rogin, Tashjian and Hirtle on March 16, 1988) dismissing

the complaint.

Dated at New Haven, Connecticut, this 18th day of

May, 1988.

Kevin F. Rowe

Clerk, United States District Court

Deputy in Charge

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse

in the City of New York, on the Ith day of September, one

thousand nine hundred and eighty-eight.

Present:

HONORABLE J. EDWARD LUMBARD,

HONORABLE J. DANIEL MAHONEY,

Circuit Judges,

HONORABLE CON. G. CHOLAKIS,

District Judge.°

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant,

J. WILLIAM BURNS, er At.,

Defendants-Appellees.

ORDER 88-6093

Appeal from the United States District Court for the

District of Connecticut.

This cause came to be heard on the transcript of record

from the United States District Court for the District of

Connecticut, and was argued by appellant pro se and by

counsel for appellees.

*Hoon. Con. G. Cholakis, District Judee. United States Dis-crict

Court for the Northern District of New York, sitting hy

designation.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged and decreed that the order of said district

court be and it hereby is AFFIRMED, and appellant is

assessed double court costs.

l. We affirm for the reasons stated in the ruling of

the district court. We also consider this a frivolous appeal.

This is appellant's third appearance before this court in the

past five years, and on each occasion res judicata barred

or bars his reassertion of the same claims which were either

fully litigated or should have been litigated in prior state

and federal proceedings. In his last appearance before this

court, Simmons v. United States of America, et al., Docket

No. 85-6087 (2d Cir. Nov. 22, 1985) (unpublished order),

appellant Simmons was placed on notice that he risked im-

position of sanctions should he seek to appeal the same

matters again.

2. It is accordingly appropriate to assess double court

costs against appellant pursuant to Fed. R. App. P. 38.

3. We specifically call to appellant's attention that we

affirm the order of the district court in all respects, including

its injunction against further federal litigation concerning

these claims, and that any violation of that injunction may

be punished as a contempt of court.

J. Epwarp LuMmBarp,

J. DaNrEL MAHONEY,

Circuit Judges

Con. G. CHOoLaKIs,

District Judge

N.B. This summary order will not be published in the

Federal Reporter and should not be cited or otherwise relied

upon in unrelated cases before this or any other court.

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS

UNITED STATES OF AMERICA, ET AL

CIVIL H-85-45 MJB

JUDGMENT

This action having come on for consideration of the

defendants’ motions to dismiss before the Honorable M.

Joseph Blumenfeld, United States District Judge, and

The Court having considered the full record of the case

including applicable principles of law, and the Court having

granted the motions,

It is accordingly ORDERED, ADJUDGED and DE-

CREED that judgment be and is hereby entered dismissing

the plaintiff's complaint.

Dated at Hartford, Connecticut, this 10th day of

April 1985.

KEvIN F. Rowe, Clerk

By: Dennis P. IAVARONE

Deputy-in-Charge

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse

in the City of New York, on the 22nd day of November, one

thousand nine hundred and eighty-five.

Present:

HONORABLE WILFRED FEINBERG

Chief Judge

HONORABLE WALTER R. MANSFIELD,

HONORABLE JAMES L. OAKES,

Circuit Judges.

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant,

- against -

UNITED STATES OF AMERICA, Er AL.,

Defendants-Appellees.

85-6087

Appeal from the United States District Court for the

District of Connecticut.

This cause came on to be heard on the transcript of

record from the United States District Court for the District

of Connecticut, and was argued by appellant pro se and

by counsel for appellees.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged and decreed that the judgment of said

District Court be and it hereby is AFFIRMED.

We agree with the April 8, 1985, order of the district

court dismissing appellant's claims on the ground of res

judicata. We also consider this a frivolous appeal. Appellant

has litigated the same matters numerous times before in

both state and federal courts over a period of many years.

Because appellant is a pro se litigant, we are not imposing

sanctions at this time. However, appellant is hereby placed

on notice that he risks imposition of sanctions in the future

should he seek once again to relitigate these same matters.

WILFRED FEINBERG,

Chief Judge

WALTER R. MANSFIELD,

James L. OaKEs,

Circuit Judges

N.B. Since this statement does not constitute a formal

opinion of this court and is not uniformly available to all

parties, it shall not be reported, cited or otherwise used in

related cases before this or any other court.

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated term of the United Siates Court of Appeals,

in and for the Second Circuit, held at the United States

Courthouse, in the City of New York, on the 10th day of

February, one thousand nine hundred and eighty-four.

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant,

ARTHUR B. POWERS,

Commissioner of Department of Transportation,

Defendant-Appellee.

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant,

UNITED STATES OF AMERICA, ELIZABETH DOLE,

Secretary of United States Department of Transpertation,

FEDERAL AVIATION ADMINISTRATION,

J. LYNN HELMS, Administrator,

STATE OF CONNECTICUT, J. WILLIAM BURNS,

Commissioner of Connecticut Department of Transportation

and CONNECTICUT DEPARTMENT OF

TRANSPORTATION,

Defendants-Appellees.

No. 83-6257

10a

A petition for a rehearing having been filed herein by

plaintiff-appellant, Augustus J. Simmons, pro-se,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

A. DaniEL Fusaro, Clerk

by Francis X. GINDHART,

Chief Deputy Clerk

APPENDIX F

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS,

UNITED STATES OF AMERICA, ELIZABETH DOLE,

Secretary of United States Department of Transportation;

FEDERAL AVIATION ADMINISTRATION;

J. LYNN HELMS, Administrator; STATE OF

CONNECTICUT; J. WILLIAM BURNS, Commissioner of

Connecticut Department of Transportation

AUGUSTUS J. SIMMONS

ARTHUR B. POWERS, COMMISSIONER,

DEPARTMENT OF TRANSPORTATION

No. H 81-778

and No. 83-225

lla

JUDGMENT

These consolidated actions having come on for consid-

eration of the Defendants’ Motions to Dismiss before the

Honorable Jose A. Cabranes, United States District Judge;

and,

The Court having considered the full record of the case

including the applicable principles of law, and the Court

having filed its endorsements on August 16, 1983, granting

Defendants’ motions,

It is accordingly ORDERED, ADJUDGED and DE-

CREED that judgment be and is hereby entered in favor

of the Defendant dismissing the Plaintiff's complaints.

Dated at Hartford, Connecticut, this 24th day of

August, 1983.

SYLVESTER A. MARKOWSKI,

Clerk, United States District Court

Joun K. HENDERSON, JR.

Deputy in Charge

12a

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of Appeals

r the S d Circuit, held at the United States Courthouss

n the City of New York, on the 20th dav of December. one

ho h lred 1 eighty-thre

Present

HONORABLE WILFRED FEINBERG

Chief Judge

HONORABLE HENRY J]. FRIENDLY

HONORABLE JAMES L. OAKES

Circuit Judges

AUGUSTUS J]. SIMMONS

Plaintiff-Appellant,

ARTHUR B. POWERS. etc..

Defendant-Appellee

\UGUSTUS J. SIMMONS,

Plaintiff-Appellant,

UNITED STATES OF AMERICA, et at.

Defendant-Appellee.

No. 83-6257

Appeal from the United States District Court for the

District of Connecticut.

13a

This cause came on to be heard on the transcript of

record from the United States District Court for the District

of Connecticut, and was argued by appellant pro se and by

counsel for appellees.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged and decreed as follows:

l. This appeal arises out of a dispute over title to and

use of land adjacent to Bradley International Airport. It

concerns two actions, filed by appellant in the United States

District Court for the District of Connecticut, and directed

against various state and federal defendants. The complaint

in the first case, Civ. No. H-81-778, was filed in October

1981, and subsequently amended. On February 7, 1983,

Judge Cabranes granted the federal defendants’ motion to

dismiss. Simmons appealed, and this court, by order dated

June 9, 1983, dismissed the appeal for lack of jurisdiction

because the dismissal of the claim against the federal

defendants did not constitute a final judgment of the district

court. We stated that, to pursue the appeal, Simmons would

have to seek the entry of a final judgment as to the federal

defendants, or await the determination of the claims against

the state defendants.

2. On March 22, 1983, appellant filed the complaint

in the second case, Civ. No. H-83-225. On May 23, 1983,

Judge Cabranes granted a motion by the State of Connecticut

to consolidate both cases. On August 16, 1983, Judge

Cabranes dismissed the complaints in the consolidated ac-

tions. Simmons now appeals from that dismissal. We agree

with Judge Cabranes that the doctrine of res judicata bars

the reassertion of these claims, already litigated in state

courts. Simmons v. Wetherall, 430 \.2d 1296 (Conn. 1980).

l4a

3. The judgment of the district court is affirmed.

WILFRED FEINBERG,

Chief Judge

Henry J. FRIENDLY,

JAMEs L. OAKES,

Circuit Judges.

N.B. Since this statement does not constitute a formal

opinion of this court and is not uniformly available to all

parties, it shall not be reported, cited or otherwise used in

unrelated cases before this or any other court.

15a

APPENDIX H

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS,

Plaintiff.

Vv.

]. WILLIAM BURNS, AS HE IS THE COMMISSIONER

OF THE CONNECTICUT DEPARTMENT

OF TRANSPORTATION, AND J. LYNN HELMS,

AS HE IS THE ADMINISTRATOR

OF THE FEDERAL AVIATION ADMINISTRATION

Defendants.

No. 81-778

Appeal No. 83-5141

PLAINTIFF'S MOTION FCR “FINAL DECISION”

ON WITHHOLDING OF FEDERAL FUNDS FOR ALL

AIRPORT DEVELOPMENT AT

BRADLEY INTERNATIONAL AIRPORT

(Preliminary Injunction)

DENIED as moot, in view of the court's disposition of

the case. See the court’s endorsement order (filed Aug. 16,

1983) of the federal defendants motion to dismiss and the

court’s endorsement order (filed Aug. 17, 1983) of the state

defendants motion to dismiss. It is so ordered.

Jose A. Casranes, U.S.D.].

August 17, 1983, Hartford, CT

CC —————

16a

APPENDIX I

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS

UNITED STATES OF AMERICA, FEDERAL AVIATION

ADMINISTRATION, J. LYNN HELMS, Administrator,

Federal Aviation Administration,

STATE OF CONNECTICUT,

CONNECTICUT STATE DEPARTMENT

OF TRANSPORTATION, and J. WILLIAM BURNS,

Commissioner, Connecticut State Department

of Transportation

No. H 81-778

RULING ON THE FEDERAL DEFENDANTS’

MOTION TO DISMISS

JOSE A. CABRANES, District Judge:

This procedurally convoluted action arises out of a dis-

pute between plaintiff and various defendants concerning

the use of several parcels of land in the town of East Granby,

Connecticut. On November 8, 1982, plaintiff filed his Third

Amended Complaint, and on December 21, 1982 the federal

defendants (the United States of America, the Federal

Aviation Administration, and J. Lynn Helms as Adminis-

trator of the Federal Aviation Administration) filed a motion

to dismiss the claims asserted against them, pursuant to Rule

12(b)(1) and (6), Fed. R. Civ. P. Because this court con-

cludes that “it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim [against these

defen-*dants] which would entitle him to relief,” Conley v.

17a

Gibson, 355 U.S. 41, 45-46 (1957), the motion to dismiss

must be granted.

The first count of the Third Amended Complaint alleges

a claim under the Federal Tort Claims Act, 28 U.S.C.

§§ 2671 et seq. The pertinent allegations of count one are

that the “FAA has placed a middle marker on Parcel C [of

which plaintiff alleges he is the owner] and an Instrument

Landing System,” Third Amended Complaint, {30; that

“the United States Government and the FAA have ousted

the Plaintiff from possession of this land since 1964,” { 33;

and that “the United States and the FAA have never com-

pensated the Plaintiff for their use of Parcels A and C,” { 34.

According to plaintiff, the instrument landing system was

emplaced in 1960, “6, the middle marker in 1974, § 7.

The statute of limitations for the Federal Tort Claims

Act is 28 U.S.C. § 2401(b), which provides in pertinent part

that a tort claim against the United States will be barred

unless “presented in writing to the appropriate Federal

Agency within two years after such claim accrues. . . .”

It is undisputed that plaintiff did not commence this action

until 1981. Plaintiff does not allege that he filed any federal

court action or agency claim before that time.

Plaintiff contends, however, that his claim is not time

barred. That contention derives from plaintiff's reading of

two cases, United States v. Dickinson, 331 U.S. 745 (1947),

and United States v. One 1961 Red Chevrolet Impala Sedan,

457 F.2d 1353 (5th Cir. 1972). This court is not persuaded

that either case cited is on point.

In Dickinson, the United States had constructed a dam,

and as a result the plaintiff's land was periodically flooded.

The dam was completed in 1936, the first Hood occurred

18a

in 1937, more extensive flooding took place in 1938, and

the plaintiff brought suit in 1943; a six-year statute of lim-

itations was applicable. The Supreme Court held that the

action was not time-barred. In Dickinson, the plaintiff argued

that the Government's action was, before 1938, ambigu as:

before the first flood occurred, there was no indication that

a taking had occurred or would occur; and before the exten-

sive flood of 1938, it was still uncertain that the Govern-

ment’s intrusion upon the plaintiff's land was sufficient to

constitute a taking, or, assuming that there was a taking,

it was too soon to determine the extent thereof. The Dickinson

plaintiff argued, and the Supreme Court agreed, that it was

not until 1938 that the fact and the extent of the taking

were clear. As Justice Frankfurter, writing for the court,

put it: “An owner of land flooded by the Government would

not unnaturally postpone bringing a suit against the Govern-

ment for the flooding until the consequences of inundation

have so manifested themselves that a final account may be*

struck,” United States v. Dickinson, supra, 331 U.S. at 749.

In the case at bar, however, the Third Amended Complaint

can only be read as stating that the Government's alleged

tort was complete in 1974. According to the complaint, the

alleged tort was neither uncertain nor ambiguous at that

time; its extent was apparent; and nothing is alleged to

have happened between 1974 and 1981 that changed _ the

nature or extent of the alleged tort.

In One 1961 Red Chevrolet, the Fifth Circuit held that,

where a change of law creates a new right, a cause of action

may, for limitation purposes, accrue at the time of that

change of law rather than when the alleged wrong occurred.

In the case at bar, however, plaintiff has not alleged any

change in the general law. Rather, he has simply alleged

that a prior adjudication of his rights with respect to the

parcels in question occurred in 1980. Clearly, an application

of law, albeit one that changes the legal relations between

19a

two parties, is not the same thing as a change in the law.

Thus, One 1961 Red Chevrolet — which, at any rate, rep-

resents the law of a circuit other than our own — has no

bearing on the case before this court today.

In short, count one of the Third Amended Complaint

is barred by 28 U.S.C. § 2401(b) and is accordingly dismissed.

Il.

In count three of the Third Amended Complaint, plain-

tiff alleges numerous violations of unspecified “Federal law,”

©€ 540-46, 49-51, and some specific violations of the Uniform

Relocation Assistance and Real Property Acquisition Policies

Act, 42 U.S.C. §§ 4601 et seq. Where violations of that Act

are alleged, plaintiff claims the FAA was derelict in fulfilling

its statutory obligations in dealing with the State of Connect-

icut, © 47-48, 52-54.

The Government contends that a private right of action

will not lie against it to compel fulfillment of such obliga-

tions. While this question has not yet been presented to

the Court of Appeals for the Second Circuit, those courts

of appeals that have considered this issue have unanimously

concluded that the “plain language,’ Fountain v. Metropol-

itan Atlanta Rapid Transit Authority, 678 F.2d 1038, 1045

n. 13 (11th Cir. 1982), of 42 U.S.C. § 4602(a) precludes

such a right. See Fountain v. Metropolitan Atlanta Rapid

Transit Authority, supra; Roth v. United States Department

of Transportation, 572 F.2d 183, 184 (9th Cir. 1978); Rhodes

v. City of Chicago, 516 F.2d 1373, 1377-1378 (7th Cir. 1975);

Will-Tex Plastics Manufacturing, Inc. v. Department of Hous-

ing and Urban Development, 345 F. Supp. 654 (E.D. Pa.

1972), affd 478 F.2d 1399 (3rd Cir. 1973). The exception

cited by plaintiff as applicable where a plaintiff is a third-

party beneficiary to a contract between federal and state

20a

governments is clearly without relevance here, where plain-

tiff has not claimed to be a third-party beneficiary — indeed,

where such a claim would be contrary to the entire thrust

of the complaint.®

Thus, count three of the Third Amended Complaint

fails to state a claim for relief cognizable under 42 U.S.C.

§§ 4601 et seq. and is accordingly dismissed.

Il.

The federal defendants have also moved to dismiss count

five of the Third Amended Complaint. Count five concerns

enforceability of a stipulation entered into by plaintiff and

the State of Connecticut. It does not appear to this court

that count five runs against the federal defendants, and

therefore that portion of the federal defendants’ motion to

dismiss that attacks count five is denied as moot, without

prejudice to renewal if it should appear hereafter that plain-

tiff means count five to run against the federal defendants.

IV.

In summary, the federal defendants’ motion to dismiss

the Third Amended Complaint insofar as it states claims

against them is granted with respect to count one, granted

with respect to count three, and denied as moot with respect

to count five, without prejudice to renewal. Counts two and

four of the Third Amended Complaint do not state claims

against any of the federal defendants.

It is so ordered.

Dated at Hartford, Connecticut, this 7th day of Febru-

ary,’ 1983.

Jose A. CaBRANES

United States District Judge

ane

Qla

APPENDIX J

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse

in the City of New York, on the 9th day of June, one thou-

sand nine hundred and eighty-three.

Present:

HONORABLE WILFRED FEINBERG,

Chief Judge

HONORABLE HENRY J. FRIENDLY

HONORABLE RALPH K. WINTER

Circuit Judges.

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant,

— against —

UNITED STATES OF AMERICA, FEDERAL AVIATION

ADMINISTRATION, er at.

Defendants-Appellees.

No. 83-6043

Appeal from the United States District Court for the

District of Connecticut.

This cause came on to be heard on the transcript of

record from the United States District Court for the District

of Connecticut, and was argued by appellant pro se and by

counsel for appellees.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged and decreed that the appeal from the

| - , | _

22a

judgment of said District Court be and it hereby is dismissed

for lack of jurisdiction.

1. This appeal arises out of a dispute over title to and

use of land adjacent to Bradley International Airport in

Connecticut that has been going on between appellant and

the governments of the United States and Connecticut for

many years. The third amended complaint in the instant

case against various federal and state defendants was filed

in November 1982. In an opinion dated February 7, 1983,

Judge Jose A. Cabranes dismissed all the counts that he

found to be directed against the federal defendants, finding

that count one was barred by the applicable statute of lim-

itations and that count three failed to state a claim for relief.

2. Because the claims against the state defendants are

still pending before the district court, the dismissal of the

claims against the federal defendants is not a final judgment,

and cannot be appealed, unless the district court determines

that “there is no just reason for delay” and expressly directs

the entry of a final judgment. Fed. R. Civ. P. 54(b). Judge

Cabranes did not do so in his opinion of February 7. This

court is therefore without jurisdiction to hear this appeal,

which is dismissed without prejudice. Appellant may seek

the entry of final judgment as to the federal defendants in

the district court, or he may await the final determination

of his remaining claims before appealing all claims to

this court.

3. Shortly before oral argument, appellant also moved

in this court for a preliminary injunction “against project

applications for airport development.” The relief sought is

the “withholding of federal funds for all airport develop-

ment at Bradley International Airport per 49 USC 1716(c)

until such time as clear title to ‘clear zone’ is fully and

adequately required.” Judge Cabranes denied a request for

23a

similar relief in the district court on May 16, 1983, on the

ground that relief was sought against the federal defendants

only, as to whom the complaint had already been dismissed.

In view of our disposition of the main appeal, this motion

is also remanded without preiudice to the district court so

that when a final judgment ‘s entered, the entire matter

may be addressed by this court at the same time.

WitrreD FeEinserc, Chief Judge

HENRY J. FRIENDLY

Ratpu K. Winter, Circuit Judges.

N.B. Since this statement does not constitute a formal

opinion of this court and is not uniformly available to all

parties, it shall not be reported, cited or otherwise used in

unrelated cases before this or any other court.

24a

APPENDIX K

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS

HORACE B. WETHERELL, Director of Aeronautics:

DONALD J. LYNCH, Deputy Director of Aeronautics;

FRANK C. PARIZEK, EDWARD J]. COADY, KINGSLEY

GILLESPIE, HUGH C. CURRAN, ARTHUR SACHS and

E. DONALD WALSH, The Aeronautics Commission of

Connecticut; and HERBERT A. PREISSNER, Manager

of Bradley International Airport

Civil No. 14,806

RULING ON DEFENDANTS MOTIONS TO

DISMISS AND TO DISCHARGE ATTACHMENTS

The plaintiff, Augustus J. Simmons, has brought suit

under the Civil Rights Act, 42 U.S.C. § 1983, to seek redress

against several public officials tor two alleged wrongs done

to him under color of state law. Jurisdiction is sought under

28 U.S.C. § 1343(3). He complains that certain of his prop-

erty, principally land abutting a state airport, was taken

by the defendants in violation of state law and in violation

of the fifth amendment to the United States Constitution;!

and he complains that the defendants caused him to be

illegally arrested, prosecuted and convicted in the state court

in violation of his federal civil rights, for cutting through

'The fifth amendment to the United States Constitution pro-

vides in pertinent part:

. nor shall private property be taken for public

use, without just compensation.”

25a

a fence which the defendants had erected surrounding his

property. The defendants have moved to dismiss the com-

plaint on the grounds of sovereign immunity, lack of federal

jurisdiction over the subject matter of the complaint, and

the tolling of the statute of limitations.

This case has a long and acrimonious history. Taking

the facts as stated in the complaint, for purposes of the

motion to dismiss, the plaintiff owns about twelve acres of

land abutting Bradley International Airport in East Granby,

Connecticut. His predecessor in title was his mother, who

owned the land when the controversy at the root of this

lawsuit began in 1961. At that time, the state Aeronautics

Commission began condemnation proceedings against the

land under Conn. Gen. Stats. § 15-79 (repealed by 1969

Public Act 768, § 263), which provided in pertinent part:

“The state or any municipality, or any two or more

municipalities jointly, . . . may take any such land

or interest therein for such establishment (of an airport)

or for the expansion or improvement of an airport

when, in the opinion of the (state aeronautics) com-

mission, public convenience or safety requires, and

when the approval of the municipality or municipalities

in which such land is located has been legally obtained,

upon paying just compensation to the owner of such

land or interest therein... .”

In December 1964 the plaintiff began construction of

a restaurant on his land; construction was halted after the

foundation had been completed, when the defendants ob-

tained an injunction against further construction on March

3, 1965, on the ground of the pendency of condemnation

proceedings.

26a

Although the defendanis, acting for the Department of

Aeronautics, were successful at trial on the issue of whether

the Aeronautics Commission’s decision to take the property

was unreasonable or in bad faith, the Connecticut Supreme

Court, without considering any other assignments of error,

ordered a new trial solely on the ground that error was )

commiited in an evidentiary ruling. State v. Simmons, 153

Conn. 351 (1966). At the new trial, the judge ruled that

the taking was invalid since the defendants had failed to

obtain the approval of the Town of East Granby, as required

by Conn. Gen. Stats. § 15-79, supra. This decision was

affirmed by the Connecticut Supreme Court. State v. Simmons,

155 Conn. 502 (1967).

Persisting after these two aboried attemp's, on January

9, 1968, the defendants again began condemnation pro-

ceedings, this time under Conn. Gen. Stats. § 48-12, the

state's general condemnation statute. The plaintiff acknowl-

edges in his complaint that “(t)he effect of this statute

was to vest title to the land in the State immediately upon

the filing of the statement of condemnation in the Superior

Court . . . .” In March 1971 the Connecticut Supreme

Court again held the taking illegal, on the ground that

takings by the Aeronautics Commission were authorized only

by Conn. Gen. Stats. § 15-79, and that the commission could

not employ § 48-12. Simmons v. State, 160 Conn. 492 (1971).

In August 1968 after the defendanis had begun the

action under § 48-12 but before the Connecticut Supreme

Court had declared this proceeding invalid, “the defendants

caused the plaintiff to be arrested and charged with a crim-

inal offense for cutting a wire fence erected by the defen-

dants around the plaintiff's property. The plaintiff was

convicted and sentenced to six months, execution suspended

after three months, plus a fine of $250.00."

rd”...

27a

The plaintiff also alleges that in April 1968 the de-

fendants caused agents or employees of the Department of

Aeronautics to remove certain cinder blocks from his prop-

erty, which they have refused to return to the plaintiff and

for which they have paid him no compensation.

The plaintiff also alleges that the defendants caused

certain runway lights to be constructed on his property,

which are in use at present and for which he has received

no compensation.

In the 1969 session of the state General Assembly, the

plaintiff was the beneficiary of the following special act:

“AN ACT AUTHORIZING AUCUSTUS J. SIMMONS

TO SUE THE STATE

Augustus J. Simmons of Windsor is authorized to bring

an action at law against the state not later than the

first Tuesday of January, 1970, and to recover such

damages as may be awarded to him by said court for

loss of use of land owned by him in the town of East

Granby. Any action brought in accordance with this

act shall be brought to the superior court for Hartford

county and no costs or interest shall be included in any

judgment against the state. Approved May 28, 1969.”

Special Act No. 170.

Under this waiver of sovereign immunity, the plaintiff

brought suit on January 5, 1970, against the defendants

Lynch and Wetherell, and against the state of Connecticut,

in the Superior Court for Hartford County, Docket No. 163,

875, secking damages for the losses he allegedly sustained

because of the deprivation of the use of his land for several

years. The allegations of that complaint are quite similar to

those here, except that the plaintiff does not seek redress

for his allegedly illegal arrest and imprisonment.

28a

II.

THE CRIMINAL PROSECUTION

The plaintiff seeks damages for his allegedly illegal

arrest and conviction, which he claims were “caused” by

the defendants. The court is of the opinion that he has failed

to state a federal claim upon which relief may be granted.

The plaintiff acknowledges that he was convicted in a

state court for cutting a fence erected by the defendants.

He may not collaterally attack that conviction here, in the

guise of a civil rights complaint. Goss v. Illinois, 312 F.2d

257 (7th Cir. 1963). See also, Taylor v. New York City

Transit Authority, 433 F.2d 665 (2d Cir. 1970).

Further, his complaint fails to allege that the defendants

acted in bad faith; he acknowledges that at the time of the

arrest, title to the property had vested, albeit temporarily,

in the state, under Conn. Gen. Stats. § 48-12. Public officials

are not liable to actions for damages under § 1983 for actions

taken in good faith. See Pierson v. Ray, 386 U.S. 547 (1967);

Bivens v. Six Unknown Named Agents of the Federal Bureau

of Narcotics, F.2d (2d Cir. Mar. 8, 1972), slip

op. at 2024. The failure to allege lack of good faith provides

an additional ground for dismissal, for failure to state a claim

upon which relief may be granted. Fed. R. Civ. P. 12(b) (6).

Il.

WRONGFUL TAKING

The plaintiff's contention that his property was taken

without just compensation alleges the deprivation of a con-

stitutional right, and thus is a basis for federal jurisdiction

under 28 U.S.C. § 1343(3). Lynch vy. Household Fin. Corp.,

40 U.S.L.W. 4335 (U.S. Mar. 23, 1972).

etiam

29a

The court is of the opinion, however, that since the

plaintiff’ merely seeks damages for interference with the use

of his property, he does not contend that a taking has

occurred within the meaning of the fifth and fourteenth

amendments to the United States Constitution.2 Hence, the

complaint must be dismissed for failure to state a claim upon

which relief may be granted. Fed. R. Civ. P. 12(b) (6).

Not every interference with the use of property con-

stitutes a taking within the meaning of the fifth amendment:

“Where the line of demarcation between acts which

amount to the taking of an interest in property short

of a transfer of title, as distinguished from acts resulting

only in tortious interference with a plaintiffs rights in

his property, is drawn in a case such as is presented

here, requires a determination of whether

‘the action of the Government has been such as

to impose a servitude upon the property which

interferes with the use, management, or enjoyment

of the same. United States v. Lynah, 188 U.S. 445,

23 S. Ct. 349, 147 L.Ed. 539; Portsmouth Harbor

Land & Hotel Co. v. United States, 260 U.S. 327,

329, 43 S. Ct. 135, 67 L.Ed. 287; United States v.

Causby, 328 U.S. 256, 66 S. Ct. 896, 90 L.Ed. 1004;

United States v. Virginia Electric & Power Co., 365

2The court assumes that the protection provided by the fifth

amendment against the taking of property without just com-

pensation applies to actions by state officials, through the

due process clause of the fourteenth amendment, which pro-

vides:

‘nor shall any State deprive any person of life, liberty,

or property, without due process of law... .”

See Haczela v. City of Bridgeport, 299 F. Supp. 709, 712

(D. Conn. 1969); ef. Foster v. Herley, 330 F.2d 87 (6th

Cir. 1964).

30a

U.S. 624, 81 S. Ct. 784, 5 L.Ed.2d 838.’ Foster v.

Herley, 330 F.2d 87, 90 (6th Cir. 1964).

“The conceptual difference between acts of interference

with the use and enjoyment of a person’s property by

public officials which results only in a claim for damages,

and those continuing acts which under all the circum-

stances ripen into a taking by the government of an

interest in the property was discussed in Foster v.

Herley, supra. A medley of continuing official acts may

develop into so much interference with the owner’s use

and enjoyment of his property as to justify a finding

that it was taken in advance of the formal transfer of

title.” Jimmie’s, Inc. v. West Haven, Civ. No. 13,503

(D. Conn. Mar. 16, 1970), affd. 436 F.2d 1339 (2d

Cir. 1971).

The plaintiff in his prayer for relief seeks an injunction

against further attempts by the defendants to take his prop-

erty “until such time as appropriate constitutional standards

are established governing the taking of land for airport

purposes, damages for the deprivation of use of his land,

and an injunction against the use of the runway lights which

allegedly have been erected on his land “unless adequate

compensation is paid to the plaintiff for the right to main-

tain said lights... .”

The plaintiffs prayer for relief is inconsistent with the

theory that there has been a constructive taking by the

state; indeed, he fervently resists the implication that he

recognizes any “servitude” imposed on his property by the

defendants. He does not want any interest in his property

to be taken.

Although the plaintiff conceivably could have argued

that the erection of runway lights on his property resulted

3la

in a taking of that portion of his property on which the

lights are situated, so that upon payment of compensation,

title to that portion of his land would vest in the state, he

has not chosen to do so. Rather, he seeks to have the use

of the lights enjoined “unless adequate compensation is paid

to the plaintiff for the right to maintain said lights... .

(Emphasis added). This theory of the case does not comport

with a federal claim, since no taking in the constitutional

sense is alleged. Jimmie’s, Inc. v. West Haven, supra. Contra,

Inmobiliaria Borinquen, Inc. v. Garcia Santiago, 295 F. Supp.

203 (D. P.R. 1969). It is quite obvious that throughout this

vigorously contested litigation in the state courts the de-

fendants have continuously, although seemingly ineptly, made

repeated attempts to pay the plaintiff “adequate compensa-

tion.” It is equally clear that the plaintiff has continuously

resisted those attempts and refused to accept “adequate

compensation.” What has resulted from the failure of the

defnedants to employ the correct procedures to effect a

taking of the plaintiff's property is a trespass on his land.

It would be paradoxical to now treat the case in this court

as a condemnation case. The plaintiff's claim gives rise to

an ordinary action in tort for the recovery of damages, not

a constitutional claim for “adequate compensation” for a

taking under the power of eminent domain.

Nor is federal jurisdiction provided by the plaintiff's

claim that he was deprived of his property without due

process of law, in violation of the fourteenth amendment to

the United States Constitution. The record of success which

the plaintiff has achieved in the state courts, by his vigorous

efforts to resist the taking of his land by the state officials,

shows clearly that he has been afforded adequate due

process of law.

In the context of this case, it is also clear that the

dispute concerning the concrele blocks, which the plaintiff

32a

alleges were removed from his land by agents of the defen-

dants and taken to airport property, is more properly viewed

as a question of who holds title to this property, rather than

a question of whether property has been taken without just

compensation. In this posture, there is no federal claim with

respect to the concrete blocks.

The plaintiff's one remaining claim is that:

“The alleged standards and criteria applied to justify

condemnation of the plaintiff's land were not uniformly

applied to other abuttors, including the abutting land

owned by the State of Connecticut, and thus the plain-

tiff was denied the equal protection of the laws in

violation of the FOURTEENTH AMENDMENT to the

United States Constitution.”

Plaintiff here attacks the “sound exercise of discretionary

authority,” Barr v. Mateo, 360 U.S. 564, 575 (1959), of the

state officials, in their decision to attempt to take his land

rather than another’s. Sovereign immunity bars such an

attack. Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, supra.

The defendants’ motion to dismiss is granted, on the

ground that the plaintiff has failed to state a claim upon

which relief may be granted.

SO ORDERED.

Dated at Hartford, Connecticut, this 3rd day of April,

1972.

M. JOSEPH BLUMENFELD

Chief Judge

ow See

33a

APPENDIX L

SIMMONS v. WETHERELL

Cite as 472 F.2d (1973)

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant,

HORACE B. WETHERELL, as the Director

of Aeronautics, et al.,

Defendants-Appellees.

No. 130, Docket 72-1541.

United States Court of Appeals,

Second Circuit.

Argued Dec. 7, 1972.

Decided Jan. 19, 1973.

Landowner brought civil rights action against state

authorities alleging that his property had been taken with-

out due compensation. The United States District Court for

the District of Connecticut, M. Joseph Blumenfeld, Chief

Judge, dismissed, and the landowner appealed. The Court

of Appeals, Smith, Circuit Judge, held that where state

authorities had proceeded with reasonable speed in their

attempts to condemn landowner’s property and any delay

arose largely from landowner's efforts at defeating condemna-

tion in state courts, the attempts at condemnation constituted,

at most, tortious interference with landowner’s property rights

and landowner could not maintain a civil rights action aris-

ing from the condemnation proceedings, but that landowner’s

allegations that state had fenced off and put airport runway

lights on portion of property owned by landowner without

paying him due compensation or instituting court proceed-

ings stated cause of action for deprivation of landowner’s

34a

right to enjoy the use of his land; however, resolution of

that portion of his complaint would be stayed pending action

in state court involving the matter.

Affirmed in part and remanded in part.

1. CIVIL RIGHTS at 13.4(1)

Attempts by state authorities to condemn landowner’s

property constituted, at most, tortious interference with

landowner’s property rights and, therefore, landowner could

not maintain action against state authorities under statute

pertaining to the deprivation of rights secured by the Con-

stitution, where state officials had proceeded with reasonable

speed in their attempts to condemn ‘land and any delay

arose largely from landowner’s efforts at defeating the con-

demnation in the courts. C.G.S.A. §§ 15-79, 48-12; 28 U.S.C.A.

§ 1343(3); 42 U.S.C.A. § 1983.

2. COURTS at 303(2)

Appropriate forum for assertion of landowner’s tort claim

against state authorities based upon effects of apparent in-

eptitude in condemning landowner’s property was in state

court. C.G.S.A. §§ 15-79, 48-12; 28 U.S.C.A. §1343(3); 42

U.S.C.A. § 1983.

3. CIVIL RIGHTS at 13.4(1)

Actions of state authorities in attempting to condemn

landowner’s property did not constitute a “taking” within

ambit of statute pertaining to the deprivation of rights

secured by the Constitution. 42 U.S.C.A. § 1983.

See publication Words and Phrases for other judicial

constructions and definitions.

35a

4. ACTION at 69(5)

CIVIL RIGHTS at 13.12(3)

Landowner’s allegations that state had fenced off land

owned by him and had put airport runway lights on it with-

out paying him due compensation or instituting court pro-

ceedings were sufficient to state civil rights claim for depri-

vation of landowner’s right to enjoy the use of his land;

however, where landowner’s claim against state authorities

revolved around boundary dispute forming basis of land-

owners pending suit in state court, landowner’s civil rights

action would be stayed pending resolution of the state court

action in interest of comity and efficient judicial administra-

tion. 42 U.S.C.A. § 1983.

Stephen W. Silverman, Springfield, Mass., for appellant.

S. Victor Feingold, Asst. Atty. Gen. (Robert K. Killian,

Atty. Gen. of the State of Connecticut, Clement J. Kichuk,

Asst. Atty. Gen., of counsel), for appellees.

Before LUMBARD, SMITH and MANSFIELD, Cir-

cuit Judges.

SMITH, Circuit Judge:

This case represents the federal stage of a long-standing

and acrimonious court battle between the Simmons family

of East Granby, Connectcut and state officials over the latters’

attempts to condemn some land adjoining Bradley Interna-

tional. Airport. Augustus J. Simmons now appeals from a

judgment of the United States District Court for the District

of Connecticut, M. Joseph Blumenfeld, Chief Judge, dis-

missing his § 1983 action against the named state officials

for failure to state a claim upon which relief can be granted.

We affirm the bulk of Judge Bluimenfeld’s decision; however,

36a

as to one aspect of this suit, we remand, for the reasons out-

lined below.

The battle here began when the state aeronautics com-

mission moved under Conn. Gen. Stat. § 15-79, which then

governed taking of land for airports,' to condemn the

Simmons property. Pursuant to the statute, a petition for

the determination of compensation was brought by the state

in Hartford Superior Court; a judgment was rendered finding

the taking reasonable and appointing a referee to assess

damages. Anastasia Simmons (appellant’s mother), appealed

to the Connecticut Supreme Court, which reversed, finding

error in the trial court’s exclusion of evidence offered to

show that property similarly situated had not been taken.

State v. Simmons, 153 Conn. 351, 216 A.2d 632 (1966). Since

this evidence was held to be relevant on the issue of whether

the state had acted arbitrarily in singling out the Simmons

land, the case was remanded for a new trial.

While the first suit was pending, Mrs. Simmons died,

and Augustus entered the fray.* Before the second trial

began, he raised as an affirmative defense to the taking

the fact that the state authorities had not received the

requisite statutory approval from the Town of East Granby

before proceeding with the condemnation. The trial court

agreed; the Supreme Court affirmed. State v. Simmons, 155

Conn. 502, 234 A.2d 835 (1967). Round two for the

Simmons family.

Undaunted, the state tried again, this time attempting

to use Conn. Gen. Stat. § 48-12, the general condemnation

'§ 15-79 was repealed by Public Act 768, § 263 (1969).

7Even Augustus’ succession to the land did not escape the

scrutiny of the Connecticut courts. See Simmons v. MeKone,

158 Conn. 71, 255 A.2d 822 (1969).

37a

statute, which provided for procedures different from § 15-79

in cases where compensation could not be agreed upon by

the parties. The Simmons family prevailed again, in Simmons

v. State, 160 Conn. 492, 280 A.2d 351 (1971), when the

Supreme Court held that the state was required to use the

§ 15-79 procedure.

At about the same time the abortive condemnation

attempts were taking place, a related dispute arose between

the state and Simmons over some land upon which rumway

lights had been placed. Simmons claimed that the land was

his; the state said that it was the state's. An ejectment

action followed. In Simmons v. Parizek, 158 Conn. 304, 259

A.2d 642 (1969), the Supreme Court held that since the

complaint did not allege that the state officials had acted

unconstitutionally or in a manner unauthorized by statute,

the suit was barred by the doctrine of sovereign immunity.

Appellant took the hint, and on October 14, 1969 resurrected

the ejectment action, this time alleging that the taking of

the land and the erection of runway lights was done both

unconstitutionally and without statutory authorization. That

suit, Docket No. 162923, Hartford Superior Court, is still

pending.

Shortly before the Connecticut Supreme Court decision

in Simmons v. Parizek, supra, a Special Act was passed by

the Connecticut General Assembiy, allowing Augustus Sim-

mons to sue the state for damages over “loss of use of land,”

arising out of the bumbling condemnation proceedings. On

January 5, 1970, Simmons brought such a suit, Docket No.

163875, Hartford Superior Court; the action is still pending.

Thus, if there ever was a litigant who knew that his

claims would be fairly heard in the state courts, Augustus

Simmons was he. Neveriheless, perhaps for a change of

setting, he instituted this § 1983 action on December 22,

38a

1971, alleging that his property was taken without due com-

pensation, and seeking damages. Since the complaint alleged

deprivation of property rights through state action, jurisdic-

tion was correctly predicated upon 28 U.S.C. § 1343(3).

Lynch v. Household Finance Corp., 405 U.S. 538, 92 S. Ct.

1113, 31 L.Ed.2d 424 (1972).

[1] As Judge Blumenfeld recognized, the basic question

presented by this suit is whether the attempts at condemna-

tion amount to an unconstitutional taking, or whether they

simply constitute at most tortious interference by the state

officials with Simmons’ property rights. Judge Blumenfeld

found that the latter situation was presented by the attempts

at condemnation here; we agree.

Simmons relies heavily upon such cases as Foster v.

Detroit, 405 F.2d 138 (6th Cir. 1968); Foster v. Herley,

330 F.2d 87 (6th Cir. 1964); and Inmobiliaria Borinquen,

Inc. v. Santiago, 295 F. Supp. 203 (D. P.R. 1969), for the

proposition that government misuse of the condemnation

power can support a § 1983 action. While we have no quarrel

with the general proposition, this case is readily distinguish-

able from the ones cited. In each of those instances, the

state officials had begun condemnation proceedings and then

let them pend, or had announced redevelopment plans and

never brought them to fruition. The result was the “freezing”

of the plaintiff's use of his property, and the courts found

enough of a taking to state a cause of action under § 1983.

Here, however, the state officials proceeded with reason-

able speed, if not efficiency, every time they sought to con-

demn the land. Each effort at condemnation was accom-

panied by a prompt resort to the judicial process to perfect

the taking; each time, Simmons fought the action, and

eventually prevailed. In the cited cases, the damage arose

from the state’s inexcusable delay in finalizing its eminent

domain planning; here any delay arises largely from Simmons’

39a

efforts at defeating the condemnation in the courts. In the

cited cases, the crux of the problem was official inaction;

here, the state has repeatedly tried to condemn the land and

pay Simmons just compensation. While Simmons certainly

should not be censured for asserting his rights, neither should

state officials be forced to await the natural delays of litiga-

tion at their peril, particularly when the issues involved are

narrow ones of statutory construction.

[2, 3] This is not to say that Simmons may not have

a valid tort claim, based upon the effects of the state's ap-

parent ineptitude here. But the appropriate forum for the

assertion of such a claim is the state court, where Simmons

now has an action, brought pursuant to the waiver of im-

munity in the 1969 Special Act, pending. Whatever else

the state’s actions here amounted to, they did not constitute

a taking within the ambit of § 1983. See Jimmie’s Inc. v.

City of West Haven, 436 F.2d 1339 (2d Cir.), cert. denied,

403 U.S. 931, 91 S. Ct. 2254, 29 L.Ed.2d 710 (1971).

[4] Thus, as to the condemnation attempts, we affirm

the judgment below. The allegations about the land upon

which the runway lights are placed, however, stand on a

somewhat different footing. At least at this stage of the

proceedings, we must accept Simmons’ claim that he owns

the land, and that the state had fenced it off and put run-

way lights on it. Assuming all that to be true, we are unable

to conclude that “it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which

would entitle him to relief.” Conley v. Gibson, 355 U.S. 41,

45-46, 78 S. Ct. 99, 102, 2 L.Ed.2d 80 (1957). If the land

is in fact Simmons’, and the state indeed has fenced it off

without paying him due compensation or instituting court

proceedings, it would seem that a deprivation of appellant’s

right to “enjoy” the use of his land is stated. See Lynch,

supra, 405 U.S. at 544,92 S. Ct. 1113.

40a

However, as Judge Blumenfeld properly recognized, the

taking claim here really revolves around a boundary dispute.

It is that same dispute that forms the basis of Simmons’

pending suit, Docket No. 162923, in Hartford Superior Court.

The resolution of boundary disputes is a matter traditionally

within the purview of the state courts; the final decision

there will undoubtedly control Simmons’ claims here. Thus,

while we find a cause of action stated with respect to the

land upon which runway lights are placed, and remand, the

disirict court should stay its hand here pending the resolu-

tion of the state court action, both in the interests of comity

and efficient judicial administration. See Klein v. Walston

& Co., 432 F.2d 936 (2d Cir. 1970); Mottolese v. Kaufman,

176 F.2d 301 (2d Cir. 1949) (L. Hand, J.)

We have considered appellant’s other claims, including

those based upon an alleged false arrest and imprisonment,

and find them without merit. We affirm the judgment below

in part and remand in part for disposition not inconsistent

with this opinion.

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.