Petition for Writ of Certiorari — In re Fleming

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Supreme Court, u.S.

. FILED

\ |

oF 95 ° 31 4 AUG 7 - 1995

RECORD # OFFICE OF THE CLERK

THE

SUPREME COURT OF THE UNITEL STATES

OF AMERICA

October Term, 1995

IN RE JAMES N. FLEMING,

Petitioner,

UNITED STATES OF AMERICA, et. als.

Respondents,

PETITION FOR WRIT OF MANDAMUS

JAMES N. FLEMING

304-A RIu'E STREET

CHARLOTTESVILLE, VA 22902

QUESTIONS PRESENTED FOR REVIEW

WAS IT ERROR FOR THE COURTS TO DENY JAMES

N. FLEMING A TRIAL, HIS DECLARATORY

JUDGMENT ACTION, REQUESTED RELIEF, AND TO

ENTER A SUMMARY AFFIRMANCE AGAINST THE

UNDERLYING CASE BASED ON THE ROOKER-

FELDMAN DOCTRINE, WHICH DOCTRINE HE

ASSERTS CREATES AN ACTUAL CONTROVERSY

UNDER THE CONSTITUTION AND LAWS OF CON-

GRESS THAT ONLY THIS COURT CAN RESOLVE TO

RESTORE HIS FEDERALLY PROTECTED FUNDAMEN-

TAL RIGHTS?

ARE NOT THE UNITED STATES CONSTITUTION'S Ye

THIRTEENTH AND FOURTEENTH AMENDMENTS, AND

LAWS PASSED PURSUANT TO THEIR ENABLING

CLAUSES BY CONGRESS, WHICH GIVE GRANTS OF

ORIGINAL JURISDICTION TO THE UNITED

STATES DISTRICT COURTS OF THIS NATION TO

ENFORCE THOSE AMENDMENTS, E.G., 28 USC

1343(A), AS THE INFERIOR COURTS SO AU-

THORIZED BY THE LEGISLATIVE BRANCH, UNDER

ARTICLE III SECTIONS 1 AND 2, AND THOSE

ENACTED LAWS PER ARTICLE VI OF THE CON-

STITUTION, THE SUPREME LAW OF THE LAND AS

OPPOSED TO THE ROOKER-FELDMAN DOCTRINE?

III

AND THEREFORE, ARE THOSE GRANTS OF JURIS-

DICTION NOT SUPERIOR IN JURISDICTION TO

THE JUDICIAL PROCEDURAL JURISDICTIONAL

DOCTRINE KNOWN AS THE "ROOKER-FELDMAN

DOCTRINE," VIZ., DISTRICT OF COLUMBIA

COURT OF APPEALS V. FELDMAN, 460 U.S.

462, 482 (1983); ROOKER V. FIDELITY TRUST

CO., 263 U.S. 413, 415, 416 (1923), WHICH

JUDICIAL DOCTRINE WAS DECLARED BY THE

DISTRICT COURT, AND AFFIRMED BY THE COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT, TO BE THE SUPREME LAW OF THE

LAND; THEREBY, BARRING IN FLEMING'S

DECLARATORY ACTION ALL FEDERAL PROTEC

TIONS AND REMEDIES OF YOUR PETITIONER

JAMES N. FLEMING TO VINDICATE BEFORE

FEDERAL COURTS HIS THIRTEENTH AND FOUR-

TEENTH AMENDMENT RIGHTS VIOLATIONS WHICH

STEM FROM A FINAL STATE JUDGMENT THAT

CONSTITUTES A STATE SANCTION TO IMPOSE

UNLAWFUL BADGES AND INCIDENTS OF SLAVERY?

iii

The Parties To the Proceedings

The Petitioner is James N. Fleming. The

Respondents are the United States of

America, the judges of the United States

District Courts, and the judges of the

United States Court of Appeals for the

District of Columbia Circuit.

TABLE OF CONTENTS

PAGE(S)

THE QUESTIONS PRESENTED FOR

DEE deasédosessrecveccesvcees SPARS

THE PARTIES TO THE

PROCHEDINGS. .ccccccccccccvcvceceaV

TABLE OF AUTHORITIES............ Vii-viii

OPINIONS IN OTHER COURTS.........-1

GROUNDS FOR JURISDICTION.........2

Statutory Provision Conferring

Jurisdiction .....cccccveeeed

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED .......-- 4-9

STATEMENT OF THE CASE .......---- 10-33

REASONS FOR ALLOWANCE OF

THE WRIT OF MANDAMUS....... 34

(A) Summary of the Argument ... 34-41

(B) The Constitutional Issue

Is Also Strictly One of

Juriediction .ccsccccccccce 41744

Vv.

CONCLUSION ct écdéeovesevecssecocoseceness?

APPENDIX bSeoeoeestesesesooseseeseutan

vi.

TABLE OF AUTHORITIES

PAGE(S)

A. CASES

Ames v. Kansas 111 U.S. 449

(1884) eoeeeoeeeeeeeeeeeeeeeeneeeeeeeee 47

Batson v. Kentucky 476 U.S. 79

(1985) Coeeewsesevesesocsesesessecee af

Bell v. Maryland 378 U.S. 221

(1964) eeees#se#e#sense#eenee#s8seeneensenseeeeee#ee#es 46, 54

Chaves v. Johnson 230 Va. 112, 335 S.E.

ww olevaiele 4 23

Civil War Cases 109 U.S. 3

CE Wie esd cb aeuiacioe Oalelele 51

District of Columbia Court of Appeals

v. Feldman 460 U.S. 462

(1983) e*eeeeee3see7##see#se7ne4e#e7#seexn85eeeese#e#ee#e#e#e#e ii,12,

Edmonson v. Leesville Concrete Co. 500

U.S.* 624,- 141 B.. CO.. 2077. (1992): ..37,. 29

Fleming v. Moore, sub nom The Gazette

v. Harris 229 Va 1, 43, 325 S.E. 2nd

713 (1985) e*e@eee#*eee#ese3s+.+5ee#e#ee#e#e#e#e#e#e# 24

Fleming v. Moore 221 Va. 884,

S78 G5. Be TES. C1008) ....-- 24,26

Jones v. Alfred H. Mayer Co.

392 0.8. GOR: GSOES) wi eves. 38,

51, 54

Marbury v. Madison, 1 Cranch 137

PEE SehCREEESEbES SE SaNCccedecoces 48, 66

Rooker v. Fidelity Trust Co.

ue eta ae COPS? séscecces £14,239,

B. UNITED STATES CONSTITUTION

AMONGRONRE TFT .ccccccvecce rer r Tr re 25, 39

Pe AEE cosccceccsevcoesecee 4, Fi,

So, 206 Sf, 30, 413, 42, 47, SO, 52, SS

Amendment XIV ......cceeeee. oestee 4, 3i,

vii.

33, 36, 37, 38, 41, 42, 46; 47, SO, S52,

REDE SEE occssvceccedossccecces 4: 8,

14, 15, 17, 18, 30, 34, 41, 43,

47, 48

RPESOLO VE coccesececssesctuscveedcact, 44,

16, 17, 30, 38, 40, 42, 45

C. FEDERAL STATUTES

i I a cd ank adonacméusaa ae

35, 46, 48, 52

S06 OIE SESE 5 cccnsccceccsda the De Oh,

48, 51

SE SEE occccuddndedsaddanenss Uae

13, 16, 31, 32, 40, 42, 48, 49,

50, 51

28 usc 2201 eoeeeeeeeee#e@eeneeeneteeeee Ve ce

34, 35, 50

BO GBC BOGS kvcks <nieielscvaceh ous cure Oye

6S TE TOO ae oo iks 6db 0 tah eed él Se Be

28 TO 1686 Rd) ¢clc Uk cise cache oo 3,3

D. STATE STATUTES

Virginia General Assembly 1847-48,

"Offenses by Negroes",

96335 C500 5 oo we stiandees ede sesn eee

viii.

—

REFERENCE TO THE OFFICIAL AND UNOFFICIAL

REPORTS OF OPINIONS DELIVERED IN THE

CASE:

Since this is an original action,

there are no official and unofficial

reports of opinions delivered in the

case.

GROUNDS FOR JURISDICTION OF THE UNITED

STATES SUPREME COURT

This Court has jurisdiction under 28

U.S.C. sec. 1651(a).

Jurisdiction of the district court ina

federal complaint was invoked under 28

U.S.C. 2201 and, further, under 28 U.S.C.

1331 and 1343(a), this being an action

for legal and equitable redress arising

as well under 42 U.S.C. 1981 and 1983.

On motions of the defendants, the dis-

trict court summarily dismissed the

action "for lack of subject matter juris-

diction," citing as authority District of

Columbia Court of Appeals v. Feldman, 460

U.S. 462 (1983). (App. 9-23.) The Court

of Appeals for the District of Columbia

Circuit affirmed, citing the Rooker-

Feldman doctrine (Rooker v. Fidelity

Trust Co., 263 U.S. 413 (1923) and Dis-

trict of Columbia Court of Appeals v.

Feldman, supra.) and 28 U.S.C. 1257.

(App. 2-4.) Petitioner then sought a

writ of certiorari in this Honorable

Court which denied it by order entered on

February 21, 1995, Civil Action No. 94-

1038 (App. 1).

Petitioner now brings the herein

petition for writ of mandamus to give him

a trial under authority of 28 U.S.C. sec.

1651(a).

THE CONSTITUTIONAL PROVISIONS AND STAT-

UTES INVOLVED

Constitution of the United States:

Amendment XIII

Section 1.

Neither slavery nor involuntary servi-

tude, except as a punishment for crime

whereof the party shall have been duly

convicted, shall exist within the United

States, or any place subject to their

jurisdiction.

Section 2.

Congress shall have power to enforce this

article by appropriate legislation.

Amendment XIV

Section 1.

No state shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive any

person or life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws.

Section 5

[Power to Enforce This Article]

The Congress shall have power to enforce,

by appropriate legislation, the provi-

sions of this article. (Proposed by

Congress on June 13, 1866, and declared

ratified on July 28, 1868.)

ARTICLE III.

Section 1.

[Judicial Power, Tenure of Office}

The judicial power of the United States,

shall be vested in one supreme court, and

in such inferior courts as the Congress

may from time to time ordain and estab-

lish. The judges, both of the supreme and

inferior courts, shall hold their offices

during good behavior, and shall, at

stated times, receive for their services,

a compensation, which shall not be dimin-

ished during their continuance in office.

Section 2.

[Jurisdiction]

The judicial power shall extend to all

cases, in law and equity, arising under

this Constitution, the laws of the United

States, and treaties made, or which shall

be made, under their authority; - to all

cases affecting ambassadors, other public

ministers and consuls; - to all cases of

admiralty and maritime jurisdiction; - to

controversies to which the United states

shall be a party; - to controversies

between two or more states; - between a

state and citizens of another state; -

between citizens of different states; -

between citizens of the same state claim-

ing lands under grants of different

states, and between a state, or the

citizens thereof, and foreign states,

citizens or subjects.

In all cases affecting ambassadors, other

public ministers and consuls, and those

in which a state shall be party, the

supreme court shall have original juris-

diction. In all other cases before men-

tioned, the supreme court shall have

appellate jurisdiction, both as to law

and fact, with such exceptions, and under

such regulations as the Congress shall

make.

ARTICLE VI

[Debts, Supremacy, Oath]

This Constitution, and the laws of the

United States which shall be made in

pursuance thereof; and all treaties made,

or which shall be made under the authori-

ty of the United States, shall be the

supreme law of the land; and the judges

in every state shall be bound thereby,

any thing in the Constitution or laws of

any state to the contrary notwithstand-

ing.

The senators and representatives before

mentioned, and the members of the several

state legislatures, and all executives

and judicial officers, both of the United

States and of the several states, shall

be bound by oath or affirmation, to

support this Constitution; but no reli-

gious test shall ever be required as a

qualification to any office or public

trust under the United States.

Title 28 USC 1257. State courts; certio-

rari

(a) Final judgments or decrees rendered

by the highest court of a State in which

a decision could be had, may be reviewed

by the Supreme Court by writ of certio-

rari where the validity of a treaty or

statute of the United States is drawn in

question or where the validity of a

statute of any State is drawn in question

on the ground of its being repugnant to

the Constitution, treaties, or laws of

the United States, or where any title,

right, privilege, or immunity is special-

ly set up or claimed under the Constitu-

tion or the treaties or statutes of, or

any commission held or authority exer-

cised under, the United States.

(b) For the purposes of this section, the

term “highest court of a State" includes

the District of Columbia Court of Ap-

peals.

Title 28 USC 2201. Creation of remedy

In, a case of actual controversy within

its jurisdiction, except with respect to

Federal taxes other than actions brought

under Section 7428 of the Internal Reve-

nue Code of 1954 [26 USC 7428), any court

of the United States, upon the filing of

an appropriate pleading, may declare the

rights and other legal relations of any

interested party seeking such declara-

tion, whether or not further relief is or

could be sought. Any such declaration

shall have the force and effect of a

final judgment or decree and shall be

reviewable as such.

Title 28 USC 1331. Federal Question

The district courts shall have original

jurisdiction of all civil actions arising

under the Constitution, laws, or treaties

of the United States.

Title 28 USC 1343. Civil Rights and

Elective Franchise

(a) The district courts shall have origi-

nal jurisdiction of any civil action

authorized by law to be commenced by any

person:

(1) To recover damages for injury to

his person or property, or because of the

deprivation of any right or privilege of

a citizen of the United States, by any

act done in furtherance of any conspiracy

mentioned in section 1985 of Title 42;

(2) To recover damages from any

person who fails to prevent or to aid in

preventing any wrongs mentioned in sec-

tion 1985 of Title 42 which he had knowl-

edge were about to occur and power to

prevent;

(3) To redress the deprivation,

under color of any State law, statute,

ordinance, regulation, custom or usage,

of any right, privilege or immunity

secured by the constitution of the United

States of by any Act of Congress provid-

ing for equal rights of citizens or of

all persons within the jurisdiction of

the United States;

(4) To recover damages or to secure

equitable or other relief under any Act

of Congress providing for the protection

of civil rights, including the right to

vote.

Title 42 USC 1981. Equal Rights Under the

Law

All persons within the jurisdiction of

the United States shall have the same

right in every State and Territory to

make and enforce contracts, to sue, be

parties, give evidence, and to the full

and equal benefit of all laws and pro-

ceedings for the security of persons and

property as is enjoyed by white citizens,

and shall be subject to like punishment,

pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

Title 42 USC 1983. Civil Action for

Deprivation of Rights

Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State or Territory or

the District of Columbia, subjects, or

causes to be subjected, any citizen of

the United States or other person within

the jurisdiction thereof to the depriva-

tion of any rights, privileges, or immu-

nities secured by the Constitution and

laws, shall be liable to the party in-

jured in an action at law, suit in equi-

ty, or other proper proceeding for re-

dress.

Title 28 USC 1651. Writs.

(a) The Supreme Court and all courts

established by Act of Congress may issue

all writs necessary or appropriate in aid

of their respective jurisdiction and

agreeable to the usages and principles of

law.

STATEMENT OF THE CASE

This case is a novel case and unprec-

edented. It challenges under our Consti-

tution and the laws of Congress a judi-

cial doctrine created by this Court in a

judicial construction of a 20th century

congressional statute, viz., 28 U.S.C.

1257, enacted in 1923. A separation of

powers issue looms and a constitutional

law conflict exists due to the judicial

doctrine known as the "Rooker-Feldman

Doctrine." It directly conflicts with 28

U.S. 1343(a), the Thirteenth and Four-

teenth Amendments of the United States

Constitution, Article III, Sections One

and Two, and Article VI of the Constitu-

tion.

James N. Fleming filed a complaint in the

United States District Court for the

District of Columbia to challenge direct-

ly the Rooker-Feldman doctrine as depriv-

ing him of his federally protected rights

and, by its application, misapplication,

or on its face, as being violative or

repugnant to the Constitution.

He sought a declaratory judgment under 28

USC 2201. The District Court granted the

United States government's motion to

dismiss; the U. S. Court of Appeals for

the District of Columbia Circuit affirmed

and granted a summary affirmance denying

briefs or argument before the Court.

Fleming filed a petition for writ of

certiorari in this Honorable Court which

was denied by order entered on February

21, 1995, No. 94-1038. Fleming now

brings this original action in this Court

seeking a writ of mandamus directed to

the U. S. District Courts to give him a

trial.

The Rooker-Feldman doctrine evolves out

of this Court's cases of Rooker v. Fidel-

ity Trust Co. 263 U.S. 413 (1923); Dis-

trict of Columbia Court of Appeals v.

Feldman 460 U.S. 462 (1983). In summary,

this doctrine says that no federal court

may review a final state judgment. (App.

24-27. See Fourth circuit opinion.) This

judicial construction abridges and con-

flicts with Congress's grants of original

jurisdiction such as 28 USC 1343(a).

Mr. Fleming in the 1980's was harnessed

with a final state Virginia libel verdict

as "a member of the black race" who was

critical of his white zoning opponent

self described in the state libel action

pleading as a member of the white race."

The state lawsuit was by its own pleading

and on its face, a racial lawsuit. (App.

35-39, at 36.)

Rooker-Feldman as a procedural doctrine

addressing subject matter jurisdiction

was used to bar Mr. Fleming from vindica-

tion of his fundamental constitutional

rights and Thirteenth Amendment prohibi-

tions. The inferior federal courts of

Virginia did follow repeatedly this

doctrine to allow a disenfranchisement of

the United States citizenship of James N.

Fleming by allowing a state court sanc-

tion to impose a badge of slavery on Mr.

Fleming and to stand uncontested in the

federal inferior courts. A protected

Class of citizen whose fundamental rights

by reason thereof were conferred upon him

as a descendant of a slave, Mr. Fleming

is absolutely guaranteed by the Thir-

teenth and Fourteenth Amendments that the

federal inferior courts are duty bound,

by grants of "original jurisdiction, to

enforce his constitutional rights

against state infringements, viz., 28 USC

1343 (a) et. seq. The constitutional

issue of where "jurisdiction" lies is

therefore critical.

The "Rooker-Feldman" doctrine by its

application, misapplication, or on its

face, has unlawfully taken precedence

over the congressional grant of "original

jurisdiction" in violation of, and repug-

nant to, the Constitution, Article III,

Sections 1 and 2, and Article VI.

No judicial doctrine can lawfully have

the authority to divest Mr. Fleming and

his class of these sacred rights vested

in the Constitution, nor make nugatory

remedies passed by Congress to enforce

the same. National blood spilled by war

and conflict gave birth to two of the

most momentous Constitutional enactments

since the Founding Fathers wrote the

Constitution itself, the Thirteenth and

Fourteenth Amendments.

Under the facts and circumstances of this

compelling individual case, these Amend-

ments must be declared supreme over the

Rooker~Feldman doctrine as well as the

laws passed by Congress under those

Amendments' enabling clauses to gain

enforcement. This Supreme Court should

properly instruct and direct the inferior

federal Courts to correct their omission

and their error in following the Rooker-

Feldman doctrine when they are mandated

by Congressional grants of "original

jurisdiction" to enforce Constitutional

law.

Article III, Section 2, compels the

"Supreme" Court over the "inferior"

Courts by appellate jurisdiction to

declare that Rooker-Feldman has no con-

stitutional superiority in this specific

Class of cases authorized and enacted by

Congress and by the power of the Consti-

tution itself. (Article VI.)

It is respect to this Court that we who

similarly took an oath to uphold the

constitution are commanded to submit an

“actual controversy" under the Constitu-

tion and the laws of Congress which

Clearly exists caused by this Court's

reasoning in the Rooker-Feldman cases.

The actual controversy is whether the

constitutional grants of original juris-

diction required the federal courts to

give the petitioner Fleming protection of

his fundamental constitutional rights

violated by the state actors, or should

the federal courts adhere to the Rooker-

Feldman doctrine to bar those guarantees

and protections? Due not only to the

facts and circumstances of this compel-

ling individual case, the Supreme Court

has a duty in the exercise of its juris-

diction under Article III to correct the

misapplication of constitutional law made

universally by the inferior courts which

have relied on the doctrine of Rooker-

Feldman as announced by this Court to

wrongly deny Mr. Fleming his federal

remedies and, thereby, failing to protect

his federally protected constitutional

rights. If Mr. Fleming by this case is

not protected, then no minority American

is protected from a final state judgment

which by its very sanction violates the

Thirteenth or Fourteenth Amendments.

Fundamental Constitutional rights and

their protections are at hand, for Mr.

Fleming and his class, before the "Su-

preme" Court, as opposed to lower hold-

ings of "inferior" courts, viz., refer-

ence Article III, Sections 1 and 2. The

federal inferior Courts have consistently

held that the Rooker-Feldman doctrine

bars all of Mr. Fleming's federal reme-

dies to vindicate his Constitutional and

fundamental rights after a final state

judgment violated his Thirteenth and

Fourteenth Amendment rights. Mr. Fleming

argued in the federal courts that he has

become the Dred Scott of the 20th cen-

tury.

The Rooker-Feldman doctrine displaces

constitutional law as found in Jones v.

Alfred H. Mayer Co., 392 U.S. 409 (1968)

which clarified the breadth and power of

the Thirteenth and Fourteenth Amendments

to this nation. The Thirteenth Amendment

to be enforced, of course, does not

require state action. Id.

The Rooker-Feldman doctrine was neverthe-

less used to even defeat Mr. Fleming's

Thirteenth Amendment federal action as

well, when no state court ever weighed

that ominous constitutional issue which

one United States Circuit Judge in deny-

ing injunctive relief to stay the execu-

tion of the state judgment against Flem-

ing held: "It is claimed this is a badge

of slavery, which of course, it is."

(App. 29.) Simply stated, mr. Fleming has

no constitutional rights due to the

universal application of the Rooker-

Feldman doctrine by federal inferior

courts, and he has wrongly been deprived

of the very forum the Constitution and

congress envisioned for him to go to in

order to vindicate those very rights.

Factually, Mr. Fleming expressed his

critical opinion against his white zoning

adversary in the 1970's on a matter of

public concern involving complicated

local zoning laws in Albemarle County,

Virginia. For his opinion titled "RACISM"

(App. 31-34), the private white individu-

al, whose name is mentioned in Mr. Flem-

ing's published article, as not wanting

to see any black person within his sight,

Professor Moore, openly declared himself

to the world in the state pleading for

his action of libel against Mr. Fleming,

that he, as "a member of the white race,"

had been "insulted, mortified, held up to

ridicule, humiliated, and aggrieved" by

Mr. Fleming, who Professor Moore noted in

the state pleading was "a member of the

black race." (App. 35-39, at 36.)

The state case was brought as a racial

lawsuit to punish Mr. Fleming for his

critical words as was once inflicted

under the Virginia slave code to negroes

who were deemed to be punishable for

criticizing whites through their menacing

language or gestures. Fleming exercised

his free speech on a public matter, being

Mr. Fleming's housing development, which

stood to make Mr. Fleming quite wealthy

in a white neighborhood.

Professor Moore opposed, with a predomi-

nantly white power structure, Mr. Flen-

ing's housing project which professed to

be open to all persons of every race

or financial makeup. Professor Moore

fought Mr. Fleming's housing development

even after it had been forcibly approved

by a Consent Order of a United States

District Court, United States District

Court for the Western District of Virgin-

ia, Civil Action #75-11, Fleming v.

County of Albemarle.

Mr. Fleming had alleged and proved racial

discrimination in the governmental disap-

proval of his housing development which

disapproval was supported by a power bloc

of white opponents, including Professor

Moore, whose house next to the develop-

ment was a miniature replica of Thomas

Jefferson's home, Monticello. Moore

insisted on a 100 ft. tree buffer which

the local government adopted thereby

preparing to confiscate acres of Mr.

Fleming's land so Moore would not have to

see the development. This gave rise to

Mr. Fleming's opinion that Moore, unlike

Jefferson, did not want to see any black

people within his sight, viz., the arti-

cle "RACISM" discussing the fight between

the "haves", and the "have nots." (App.

33.)

Mr. Fleming took up pen and exercised the

same right white citizens had exercised

since the earliest days of Virginia as a

state constitutional privilege, to write

or speak "any pure expression of opinion

not amounting to fighting words however

ill founded without inhibition by actions

for libel and slander." Chaves v. John-

son, 230 Va. 112, 119, 335 S.E. 2d 97,

101-102 (1985).

It was this very case opinion, reciting

Thomas Jefferson's first Inaugural Ad-

dress of 1801, that Mr. Fleming used at

the last procedural stage of his state

proceeding to reverse Moore's libel

judgment based on the article "RACISM."

Fleming sought to have his case conformed

to the Chaves decision. It involved two

white architects one publicly criticizing

the other. The Virginia Supreme Court

refused Mr. Fleming his request. His First

Amendment rights were thus denied.

This gave reason for Mr. Fleming to raise

his Fourteenth and Thirteenth Amendment

federal claims for the first time in

federal court notwithstanding the state

motion for judgment on its face and the

final state judgment were, in and of

themselves, violative of those Amendments

and his First Amendment rights.

After the state judgments were final,

Fleming v. Moore, sub. nom The Gazette v.

Harris, 229 Va. 1, 43, 325 S.E. 2d 713,

Fleming II (1985); See also Fleming v.

Moore 221 Va. 884, 275 S.E. 2d 632 at 635

(1981), Fleming I, Mr. Fleming launched

his federal collateral attack that this

state sanction by judicial judgment

violated his Thirteenth and Fourteenth

Amendment rights. The case was summarily

dismissed by the Virginia federal courts

citing the Rooker-Feldman doctrine. The

Fourth circuit concurred. .

A writ for certiorari was denied by this

Court.

The final state judgment has continuing

and prospective unconstitutional effect,

silencing Mr. Fleming and taking his free

expression from him and imposing badges

and incidents of slavery upon him. Mr.

Moore, with the assistance of the state,

severely punished Mr. Fleming for his

menacing gesture as a "Negro" with the

assistance of state action and state

judicial sanction. The judiciary thereby

adopted incidents, relics, and badges of

Slavery by harnessing Mr. Fleming with

one of the largest state civil libel

judgments ever awarded in Virginia's

judicial history, exceeding a quarter-

million dollars because Fleming, "a

member of the black race," had insulted

Moore, “a member of the white race."

Fleming argues if any black citizen reads

of public record Fleming v. Moore 221 Va.

884 (1981), his opinion "RACISM" is

published there as a warning to all black

Virginia citizens, that this is the price

to be paid for openly criticizing a white

person on issues of public concern.

The result is reminiscent of the Old

Slave Code of Virginia that no Negro

could make a menacing gesture to a white

person. (Virginia General Assembly 1847-

48 Enactment, "Offenses by Negroes,"

14(11)(12).) The menacing Negro would be

taken to the public square after being

tried by a magistrate or Judge and admin-

istered not more than 39 stripes at any

one time as punishment.

At Mr. Fleming's state trials in the

1970's and 1980's, all black jurors were

first peremptorily struck by Mr. Moore's

counsel. This was objected to as uncon-

stitutional at that time and which prac-

tice is now held by recent decisions of

this Court to be unconstitutional.

(Batson v. Kentucky 476 U.S. 79 (1986);

Edmonson v. Leesville Concrete Co. 500

U.S. 614, 111 S. Ct. 2077 (1991).) Mr.

Fleming was harnessed with one of the

largest libel verdicts in the history of

Virginia handed down by an all-white

jury. He thus got his 39 stripes and then

some.

Mr. Fleming, ahead of his time, argued

the jury issue in one of his applications

for writ of certiorari to this court,

record 85-1532, wherein the NAACP also

filed an amicus brief arguing that

Moore's striking of all black jurors

violated Mr. Fleming's constitutional

right to equal protection of the laws.

His argument was made to no avail. The

writ was denied by this Court which in

1991 changed its mind.

Finally, at the conclusion of the state

action and the repeated failed attempts

to seek federal jurisdiction denied by

reason of the Rooker-Feldman doctrine,

Fleming directly attacked the Rooker-

Feldman doctrine itself. He named the

United States of America and its judicial

employees in the Western United States

District Courts of Virginia and the

United States Court of Appeals for the

Fourth Circuit as party defendants,

seeking both declaratory and injunctive

relief and damages or reimbursement of

his expenses and costs, restoration of

his rights, and attorney fees for the

United States of America's wrongful appli-

cation of the Rooker-Feldman doctrine to

bar what congress had otherwise author-

ized, civil actions by citizens to vindi-

cate their constitutional rights from

state action infringements.

Each of the inferior federal courts here

listed saw Fleming's federal cases dis-

missed by reason of the Rooker-Feldman

doctrine. (Fleming v. Moore, et al., slip

opinion No. 87-6619 (4th Cir. 1989);

Fleming v. Moore, 780 F.2d 438 (4th Cir.

1985); Fleming v. Moore, No. 85-2168,

cert. den., 55 U.S.L.W. 3258 (1986);

Fleming v. Moore, No. 85-1532, cert. den.

54 U.S.L.W. 1697 (1986); Fleming v.

Moore, No. 84-1740 (1986), cert. den. 53

U.S.L.W. (1985); Fleming v. Moore, No.

84-382, cert. den. 53 U.S.L.W. 3325

(1984); (See also Judge Sporkin's recital

of Mr. Fleming's efforts, App. pp. 14-20,

21.)

Fleming now directly attacks Rooker-

Feldman as having been unconstitutionally

and impermissibly applied or misapplied

by inferior federal tribunals, and argues

that the misapplication or application

directly conflicts with the Thirteenth

and Fourteenth Amendments, 28 USC

1343(a) granting “original” jurisdiction

to the District Courts to hear the very

federal claims Fleming brought by federal

complaints, and with Article III, Sec-

tions 1 and 2, and with Article VI. In

relying on the Rooker-Feldman doctrine,

Fleming was denied by the very Courts and

jutioias officers empowered and duty

bound to protect his federally protected

rights, being the "inferior" Courts of

the United States and their federal

employees sitting in Virginia.

In the alternative, Fleming being vested

with his citizenship through the Four-

teenth and Thirteenth Amendments, because

of the disenfranchisement he had suffered

due to the Rooker-Feldman doctrine,

sought a declaratory judgment also to

declare it to be in conflict with the

Thirteenth and Fourteenth Amendments and

the laws of Congress passed under those

amendments to the extent that the Rooker-

Feldman doctrine as to those amendments

and 28 USC 1343(a) is repugnant to the

Constitution itself, and, therefore it is

unconstitutional on its face as it would

be applied by the inferior Courts to

Thirteenth and Fourteenth Amendment

Claims of Mr. Fleming and his protected

class.

Therefore, Rooker-Fe!.dman is unconstitu-

tional in its application and on its

face, and it presents an actual contro-

versy under the constitution to be re-

solved by the jurisdiction of this Court

in favor of Mr. Fleming, thereby vindi-

cating Mr. Fleming's Thirteenth and

Fourteenth Amendment federally protected

rights and of his class.

He urges for himself and for his class

that recurrences of this disenfranchise-

ment will continually occur in this

nation without the highest federal tribu-

nal, the Supreme Court of the United

States, deciding by its supreme jurisdic-

tion this actual controversy and correct-

ing this constitutional conflict created

by the inferior federal courts which

relied on the Rooker-Feldman doctrine to

bar these cases.

In vindicating this impermissible uncon-

stitutional infringement on Mr. Fleming's

rights and freedom, the Supreme Court of

the United States is requested to issue a

writ of mandamus directing the U. S.

District courts to give him a trial on

his federal complaint. Mr. Fleming filed

a motion for summary judgment. He also

asks that this Court vacate the lower

district court's order granting the

government's motion to dismiss.

REASONS FOR ALLOWANCE OF THE WRIT

Summary of the Argument

There exists little or no case law on

this case before you. Article III, Sec-

tion and 2 are the beginning point of

Constitutional law to address Mr. Flem-

ing's case.

This nation enacted the Thirteenth and

Fourteenth Amendments with enabling

Clauses to ensure their enforcement.

Congress, recognizing that access to

federal courts might well be required to

vindicate federal Constitutional rights,

enacted statutes granting "original

jurisdiction" to federal courts to en-

force these Amendments in our district

courts. Adherence to "Rooker-Feldman" by

the lower courts, however, presently

prevents federal courts from utilizing

their Congressionally granted jurisdic-

tion.

A clear constitutional conflict thus

exists between these Amendments, the laws

passed to enforce them, and the "Rooker-

Feldman" doctrine. In such a conflict,

the constitution and constitutionally

valid Congressional legislation, must

prevail. “Rooker-Feldman" deprives indi-

viduals of a protected class of the

ability legally to obtain vindication of

their constitutionally protected Thir-

teenth and Fourteenth Amendment rights

because it denies them access to federal

district courts, the appropriate fora in

which to assert those rights, rendering

nugatory the protection of the Thirteenth

and Fourteenth Amendments in states

unwilling to honor their legal force.

As a descendant of an African-American

Slave, that class of Americans acknowl-

edged as citizens by virtue of the pas-

sage of the Thirteenth and Fourteenth

Amendments, Mr. Fleming's fundamental

rights as an American citizen are guaran-

teed by our Constitution. We submit that

Mr. Fleming and others of his class have

been denied the protection guaranteed by

the Thirteenth and Fourteenth Amendments,

and that as to Fleming this denial of

Constitutional protection has been worked

by private actors, and by the state

judiciary of Virginia, under the sanction

of state law, as asserted in his Com-

plaint. Mr. Fleming's attempts to vindi-

cate his federally guaranteed rights,

once he had been subjected to state

deprivation of those federally protected

rights, was thwarted by his inability to

press his federal claims in federal

courts.

If the “Rooker-Feldman" doctrine is a

"universal" doctrine, barring citizens of

any race from attacking a final state

judgment, as recited by Fleming's former

adversaries, even when that judgment is

violative of First, Thirteenth or Four-

teenth Amendment rights, then this case

must be heard to resolve the constitu-

tional conflict Fleming raises for him-

self, his class and all minority races.

If the Virginia, or any similar state's,

judicial decision is allowed to stand, as

it has against Fleming, depriving a

citizen of the United States fundamental

rights due to the fiction of the "Rooker-

Feldman" doctrine, then all Thirteenth

and Fourteenth Amendment protection and

guarantees, and the remedies provided by

laws of Congress, as to any member of a

minority race, may be ignored among the

states without fear of federal interven-

tion.

The District Court for the District of

Columbia Circuit expressed the fear that

to take this unprecedented position would

result in "No state court decision would

ever be considered final," and, "It would

place the judicial system in a perpetual-

motion cycle". (App. 22-23.)

Thus the District Court, in that fear,

joined every federal court which has to

date reviewed Mr. Fleming's various

federal collateral and direct attacks and

concluded identically to cast that fear

aside, "Until the Supreme Court of the

United States says otherwise, the Rooker-

Feldman doctrines remains the law of the

land." (App. 22.) Rooker-Feldman is not

the supreme law of the land by reason of

Article VI.

Mr. Fleming does not even suggest as the

District Court does that every state

final judgment should come into play if

the Rooker-Feldman doctrine were struck

down, rather, he submits only those final

state judgments come into federal court

which would by state judicial sanction

impose a badge or incident of slavery

violative of the Thirteenth and Four-

teenth Amendments of our citizenry or

prove to be violative of federally pro-

tected rights.

In this regard, Congress has made a

protected class of citizens to achieve

racial equality so that a state actor and

state jurist in the Mississippi Delta or

the boroughs of Chicago or the streets of

Los Angeles will adhere to the law of the

land, the Thirteenth and Fourteenth

Amendments, and the laws of Congress

passed to enforce them. Otherwise, if

they failed to do so, the federal tribu-

nals which have original jurisdiction to

see that the constitutional rights of

this class are enforced, violate their

oath and affirmation "...to support this

Constitution." (Article VI.)

The Rooker-Feldman doctrine is therefore

at total odds and conflict with the law

of this nation and the Constitution

itself. The Supreme Court of the United

States must correct this misapprehension

of the law by taking this case and an-

nouncing to all inferior federal courts

across this nation that the misapplica-

tion of Rooker-Feldman is constitutional

error in this type of case and so declare

the Thirteenth and Fourteenth Amendments

and 28 USC 1343(a) superior to that

doctrine, and in the alternative, that

the doctrine is repugnant to those Amend-

ments and the laws of Congress passed to

enforce them, and therefore unconstitu-

tional when used in that limited context

or unconstitutional in its misapplication

to those classes of case.

The Constitutional Issue Is

Also Strictly One of Jurisdiction

Pursuant to the Thirteenth and Fourteenth

Amendments and their enabling clauses,

and Article III, Section 1 of the United

States Constitution, the United States

District Courts receive grants of "origi-

nal jurisdiction" from Congress to en-

force Fleming's constitutional rights

from unlawful sanctions coming out of

state law, judiciary sanctions, police,

and even state sovereignty and its

agents, unconstitutional customs, prac-

tices, and policy. Only one avenue exist-

ed for Mr. Fleming to expunge the badge of

slavery imposed and to right the disen-

franchisement of his citizenship, and,

that is in the federal courts as this

case so well proves. 28 USC 1343 (a)

provided this avenue by a granting of

“original jurisdiction." The judicial

doctrine of Rooker-Feldman made that

grant of jurisdiction nugatory in

violation of the Constitution itself.

Mr. Fleming argues that the flawed rea-

soning of inferior federal courts sitting

in Virginia to give Rooker-Feldman this

supremacy over the Constitution itself is

no less than a misapplication of consti-

tutional law, and defeats the Supremacy

Clause of Article VI and violates the

separation of powers by defying Con-

gress's Constitutional role.

To follow as the District Court did that

by reason that Rooker-Feldman is the law

of the land to this sort of case, when it

is not the law of the land, simply and

impermissibly allows the inferior courts

of the United States to unlawfully ignore

congressional grants of original juris-

diction by refusing to review a final

state judgment under these facts and

circumstances, which violates federally

protected rights. Federal courts thereby

unwittingly join state action to unlaw-

fully defeat Mr. Fleming's federally

protected rights under the Thirteenth and

Fourteenth Amendments, which are clearly

superior and supreme to the Rooker-Feld-

man doctrine, and to make nugatory the

grant of jurisdiction to enforce those

rights.

Using the Rooker-Feldman reasoning, Mr.

Fleming submits, could raise the uncon-

stitutional specter of private actors

across this nation instituting state

court sanctions secured by final state

judgments violative of these constitu-

tional Amendments, and obtaining thereby

in any of the fifty states the identical

result imposed on Mr. Fleming, a badge,

relic, or incident of slavery.

The end result is that the protected

class of citizenry would under the Rook-

er-Feldman doctrine be without immediate

redress in the inferior federal courts

because of the Rooker-Feldman doctrine

procedural bar. This is a blatant, will-

ful and unconstitutional indifference to

the Constitution if this judicial doc-

trine can continue to be a bar which

makes a congressional grant of original

jurisdiction entirely meaningless.

IItl

Jurisdiction is Supreme

The Constitution at Article VI states

"this Constitution, and the Laws of the

United States which shall be made in

Pursuance thereof ... shall be the su-

preme Law of the Land." In Bell v. Mary-

idand, 378 U.S. 221 (1964), this Court

reviewed Marbury v. Madison, 1 Cranch

137, 177-178 (1803), noting that where

there are conflicting laws with the

Constitution, Chief Justice Marshall and

the Court held "... the court must deter-

mine which of these conflicting rules

govern the case. This is the very essence

of judicial duty." The District Courts

and the Circuit Court of Appeals are both

wrong that the Rooker-Feldman doctrine is

“the law of the land." The Thirteenth and

Fourteenth Amendments and Congressional

grants of original jurisdiction to en-

force those Amendments is the supreme law

of the land.

Chief Justice Marshall concludes, Id., at

180: "Thus the particular phraseology of

the Constitution of the United States

confirms and strengthens the principle

supposed to be essential to all written

Constitutions, that a law repugnant to

the constitution is void; and that

courts, as well as other departments, are

bound by that instrument." The Thirteenth

and Fourteenth Amendments are part and

wniiead: of our nation's Constitution. 28

USC 1257 spawning the Rooker-Feldman

doctrine is not. No judicial doctrine can

supplant these Amendments nor supplant

the grant of the legislative branch so

empowered to give the district courts

original jurisdiction to enforce those

very Amendments. The Rooker-Feldman

doctrine has impermissibly done just that

and as applied and on its face and, when

put in conflict with the Constitution, it

is repugnant and therefore void as to its

misapplication to Mr. Fleming and his

class's federally protected rights and

the laws passed to enforce those rights.

The creation of lower federal courts and

determination of their jurisdiction has

been left to Congress, Article III 1. It

is for Congress to decide to what extent

the "judicial power" of the United States

is to be exercised by the lower federal

courts and thus the "judicial power"

specified in the Constitution, Article

III, section 2, clause 1, absent a Con-

gressional grant to the lower federal

courts, may be exercised by the Supreme

Court in the first instance. Ames v.

Kansas, i11 U.S. 449, 4 S. Ct. 437

(1884). We thus have a separation of

powers conflict that should be resolved

by declaratory judgment that between the

Rooker-Feldman doctrine created by the

judiciary and original jurisdiction

grants found in 28 USC 1343(a) and 1331

passed by the power reserved in the

Constitution to Congress, the latter

prevails. Such a declaratory judgment

can never be entered unless this Honora-

ble Court issues a writ of mandamus

directing the district courts to allow

the case to go to trial.

Clearly, the Congress has the power to

grant the "judicial power" to the lower

Courts by grants of original jurisdiction

and the Supreme Court shall sit in appel-

late jurisdiction to make certain there

is uniformity of judgments as those

judgments so apply to the Constitution.

In this case, the lower courts are in

Constitutional error to depend on the

Rooker~Feldman doctrine to deny James N.

Fleming his lawful access to the district

courts empowered to vindicate his funda-

mental and individual constitutional

rights.

By enabling clauses of the Thirteenth and

Fourteenth Amendments, Congress passed 28

USC 1343(a) giving a grant of original

jurisdiction to the lower inferior courts

to enforce those Amendments viz., "The

district courts shall have original

jurisdiction of any civil action author-

ized by law to be commenced by any per-

son." 28 USC 1343 sets out those civil

cases which include cases to redress the

deprivation under color of any State law,

statute, ordinance, regulation, custom or

usage, of any right, privilege or immuni-

ty secured by the Constitution of the

United States of by any Act of congress

providing for equal rights of citizens or

of all persons within the jurisdiction of

the United States. Mr. Fleming has,

therefore, a civil case and he seeks

legal and equitable remedies provided by

Congress under 28 USC 1343(a). This grant

of jurisdiction and the laws passed are

the supreme law of the land under Article

VI.

28 USC 1331 states further that "The

district courts shall have original

jurisdiction of all civil actions arising

under the Constitution, laws, or treaties

of the United States." Mr. Fleming thus

has access to the district court to seek

damages as well. He can also proceed

under 28 USC 2201 for a declaration of

those rights. Issuance of the writ of

mandamus will ensure his case goes

forward so that such a declaration can be

made.

In Jones v. Mayer 392 U.S. 409 (1968),

this Court at 439-440 defined the breadth

and power of the Thirteenth Amendment,

"... the authors of the Thirteenth Amend-

ment had no doubt that its Enabling

Clause contemplated the sort of positive

legislation that was embodied in the 1866

Civil Rights Act." Citing the Civil War

Cases, 109 U.S. 3 at 23 (1883), the Court

wrote "Under the Thirteenth Amendment, it

has to do only with Slavery and its

incidents. Under the Fourteenth Amend-

ment, it has the power to counteract and

render nugatory all State Laws and pro-

ceedings which have the effect to abridge

any of the privileges or immunities of

citizens of the United States ..."

The Court went on to hold that under the

Thirteenth Amendment legislation, it had

the power to "eradicate all forms and

incidents of slavery ... direct and

primary, operating upon the acts of

individuals ..." Id. One Fourth Circuit

Judge held the final state judgment

against Mr. Fleming was a badge of slav-

ery and retreated from striking it down

writing in his denial of injunctive

relief his adherence to Rooker-Feldman

(App. 29), "It is claimed that this is a

badge of slavery, which, of course, it

is." (Emphasis added.) Yet no federal

lower court would ever allow Mr. Fleming

a trial to strike that badge down as

unconstitutional under the United States

Constitution.

28 USC 1257 (reference page 6 herein)

applies to "final judgments," viz., "...

where the validity of a treaty or statute

of the United States is drawn into ques-

tion or where the validity of a statute

of any state is drawn into question on

the ground of its being repugnant to the

Constitution, treaties, or laws of the

United States. As the basis of Rooker-

Feldman, its application is entirely and

wrongly misplaced by the lower federal

courts. Mr. Fleming's final state judg-

ment in no manner drew into question the

validity of a state or federal statute.

James N. Fleming's case is in many ways a

clarion call to the disadvantaged of this

country, many of whom are members of

racial minorities, whom he aptly called

the "have nots" in his published article

titled "RACISM." For any American not of

the predominant race, James N. Fleming is

a chilling example of the way in which a

majority can suppress and punish expres-

sion which challenges racially inequita-

ble treatment. It was done to Fleming by

his own community with an all-white jury

after black jurors were struck first by

peremptory strikes, and secured by the

sanction of a state judiciary.

Racially based different and unequal

treatment is the very constitutional

affront outlawed by the Thirteenth and

Fourteenth Amendments. The Supreme Court

of the United States has recognized this

basic tenet in Bell v. Maryland and Jones

v. Mayer, previously cited. Yet these

decisions were not applied by Virginia's

federal judiciary because, as stated in

the United States Fourth circuit opinion,

Fleming's Thirteenth and Fourteenth

Amendment constitutional challenges "fly"

in the "face" of the "Rooker-Feldman"

doctrine. The District Court below de-

clared Rooker-Feldman "the law of the

land" until the Supreme Court of the

United States says otherwise. (App. 22-

23%)

Thus, this is the historical moment of

this "Supreme" Court to say otherwise.

During the Civil Rights movement in the

1960's, thousands upon thousands of

Americans, whites and minorities, risked

life, limb, and liberty to announce that

they as Americans would no longer toler-

ate minority racial oppression of fellow

Americans. From those freedom fighters

and freedom riders we have inherited

changed attitudes and laws which have

permanently altered in definite ways the

national racial justice of this multi-

faceted, multi-lingual, and multi-ethnic

nation. The Rooker-Feldman doctrine as

used in this case of Mr. Fleming's makes

a mockery of our constitutional system,

and its inherent constitutionally flawed

thinking must be corrected to properly

direct the inferior Courts lest we be

lost to yet another judicial era similar

to the separate but equal doctrine. The

epoch of this Supreme Court is to re-

soundingly say, "Not again." The Consti-

tution is your charge and we submit under

it, it is your duty to correct the uncon-

stitutional result of the James N. Flem-

ing case.

Conclusion

If we are to succeed in moving forward as

a free nation whose citizens live in

harmony, then a situation such as Mr.

Fleming's should never again occur. No

American similarly situated should be

barred procedurally, as was Mr. Fleming

by the lower federal courts, Pvde ‘estkine

vindication of his federally protected

rights before an authorized federal

tribunal because of the Rooker-Feldman

doctrine.

To ensure that it never recurs, the

“"Rooker-Feldman" doctrine must be de-

clared unconstitutional in its applica-

tion, misapplication or on its face as

applied to those cases such as Mr. Flen-

ing's. Eternal vigilance is the price of

liberty. This Court can guarantee the

liberty of all by its application of

vigilance to correct this unconstitution-

al result.

Accordingly, we ask for the Petitioner

that a writ of mandamus be entered di-

recting the United States district court

judges to give petitioner a trial.

Respectfully submitted

James N. Fleming

Petitioner

APPENDIX

CONTENTS OF APPENDIX

PAGE(S)

United States Supreme Court

order dated February 21, 1995......1

United States Court of Appeals for

the District of Columbia Circuit

GCEGGE Gated 9/14/94 wccccccccccccs 206

United States Court of Appeals for

the District of Columbia Circuit

Order and Opinion dated

7/27/94 eee eeeeeeeeeeeeeeeeeeeeee 5-8

United States Court for the District

of Columbia Order dated

3/25/94 soeeeeeeeeeeneeeeeeeeeeeeeee 9-10

United States Court for the District

of Columbia Memorandum opinion dated

3/25/94 Seeeeesoecasesoesosocceccesesooonas@ad

United States Court of Appeals for

the Fourth Circuit (Excerpt of Opinion

dated 1/3/89) e*eee3estee*ee#es#see#e#es#e#*# wrrTrer? ot:

United States Court of Appeals for

the Fourth Circuit (Excerpt Opinion

duted 4790708). oi cds céccetvhahince 28-30

James N. Fleming's Article

WRACISM” ..ccccccccccccsccccscccecs 31-34

Virginia Motion for Judgment against

James N. Fleming ......eeeeeeeees 2 35-39

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D. C. 20543

February 21, 1995

Mr. J. Benjamin Dick

411 Park Street

Charlottesville, VA 22901

Re: James N. Fleming v. United

States, et. als.

No. 94-1038

Dear Mr. Dick:

The Court today entered the following

order in the above entitled case:

The petition for a writ of certiorari

is denied.

Very truly yours,

William K. Suter, Clerk

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 94-5079

September Term, 1994

UsDC

CV 93-2002

James N. Fleming,

Filed: 9/14/94

Appellant,

United States of America, and in declara-

tory relief for Constitutional Protection

and Guarantees Under the Thirteenth and

Fourteenth Amendments, inter alia, all

Judicial Employees for the United States

Western District Court of Virginia; and

of the United States Court of Appeals for

the Fourth Circuit, Necessary Parties,

Appellee

BEFORE: Mikva, Chief Judge; Wald, Ed-

wards, Silberman, Buckley, Williams,

Ginsburg, Sentelle, Henderson, Randolph

and Rogers, Circuit Judges

ORDER

Appellant's Suggestion for Rehearing In

Banc has been circulated to the full

Court. No member of the Court requested

the taking of a vote thereon. Upon con-

sideration of the foregoing it is

ORDERED, by the Court in banc, that the

suggestion is denied.

Per Curiam

FOR THE

COURT:

RON GARVIN,

CLERK

BY:

Robert

A. Bonner

Deputy

Clerk

Chief Judge Mikva did not participate in

this matter.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 94-5079 Sep-

tember Term, 1994

usDC CV 93-

2002

James N. Fleming, Filed:

07/27/94

Appellant,

United States of America, et al.

BEFORE: Mikva, Chief Judge; Silberman and

Ginsburg, Circuit Judges

OQREERB

Upon consideration of the motion for

summary affirmance, the response thereto,

and the reply, it is

ORDERED that the motion for summary

affirmance be granted. The district court

correctly concluded that it lacked juris-

diction over appellant's attempt to

obtain collateral federal review of the

state-court judgment against him, regard-

less of the constitutional nature of his

objections to that judgment. See District

of Columbia Court of Appeals v. Feldman,

460 U.S. 462, 486 (1983) (district courts

"do not have jurisdiction ... over chal-

lenges to state-court decisions in par-

ticular cases arising out of judicial

proceedings even it those challenges

allege that the state court's action was

unconstitutional"). The district court

also correctly concluded that it lacked

jurisdiction to review decisions of the

United States Court of Appeals for the

Fourth Circuit. See 28 U.S.C. 1254

(providing for Supreme Court review, by

way of writ of certiorari, of decisions

of circuit courts of appeals). Finally,

appellant's claim for compensatory dam-

ages is clearly barred by sovereign

immunity, see Clark vy. Library of Con-

gress, 750 F.2d 89, 102-04 & n.31 (D.C.

Cir. 1984) (no waiver of sovereign immu-

nity for damages claims against United

States or federal officials in their

official capacities), and judicial immu-

nity. See Sandran v. Suda, 986 F.2d 1459,

1460-61 (D.C. Cir. 1993) (per curiam)

(judges and judicial officers absolutely

immune from liability for acts taken in

judicial capacity). The merits of the

parties' positions are so clear as to

warrant summary action. See Taxpayers

Watchdog, Inc. yv. Stanley, 819 F.2d 294,

297 (D.C. Cir. 1987) (per curiam); Walker

v. Washington, 627 F.2d 541, 545 (D.C.

Cir.) (per curiam), cert. denied, 449

U.S. 994 (1980).

The Clerk is directed ta withhold issu-

ance of the mandate herein until seven

days after disposition of any timely

petition for rehearing. See D.C. Cir.

Rule 41.

Per Curiam

UNITED STATES COURT

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Civil

Action No. 93-2002

(Stanley

Sporkin)

James N. Fleming,

Plaintiff,

United States of America, et al.

Defendants

This matter comes before the Court on

Defendant's motion to dismiss. Having

considered the motion, Plaintiff's oppo-

sition thereto, having heard argument by

the parties, and for the reasons stated

in the foregoing memorandum opinion, it

is hereby

ORDERED that this matter be dismissed.

Date: March 25, 1994

Stanley Sporkin

United States District Court

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Civil

Action No. 93-2002

(Stanley

Sporkin)

James N. Fleming,

Plaintiff,

United States of America, et al.

Defendants

MEMORANDUM OPINION AND ORDER

Plaintiff James N. Fleming is a citizen

of Virginia. In this class action conm-

plaint, he seeks declaratory, injunctive,

and monetary relief from the Unites

States arising from the alleged violation

of his constitutional rights by the

United States District Court for the

Western District of Virginia and the

United States Court of Appeals for the

Fourth Circuit. The gist of Fleming's

complaint is that the application of the

"Rooker-Feldman" doctrine', which holds

that a United States District Court has

no authority to collaterally review a

final judgment of a state supreme court

in a civil case, is unconstitutional when

applied to a black litigant.

This matter comes before the Court on

Defendants' motion to dismiss. The motion

will be granted.

Background

In mid-1970's, Mr. Fleming, a Virginia

developer, was involved in a real estate

development dispute in his hometown of

Charlottesville. As part of the ongoing

conflict, Mr. Fleming placed an adver-

tisement in the University of Virginia

newspaper headlined "Racism." The ad

stated that one

1 The doctrine gains its name from the

cases of Rooker yv. Fidelity Trust Co.,

263 U.S. 413 (1923), and District of

Columbia Court of Appeals v. Feldman, 460

U.S. 462 (1983).

W. Bedford Moore III, a white University

professor, opposed Fleming's plans to

develop low-cost housing on racial

grounds. Moore successfully sued on a

libel theory in state court in 1977. The

jury initially awarded Moore $10,000 in

compensatory damages and $100,000 in

punitive damages.

This verdict was reversed by the Supreme

Court of Virginia because the trial judge

had improperly instructed the jury. See

Fleming v. Moore, sub nom. Gazette, Inc.

v. Harris, 275 S.E.2d 632 Va. 1981),

cert. denied 469 U.S. 966 (1984). The

suit_was tried a second time in 1982 and

Fleming lost again, this time to the tune

of $100,000 in compensatory damages and

$250,000 in punitive damages. The Supreme

Court of Virginia heard argument on this

second verdict and reversed in part and

remanded, finding that the amount of the

award bore no relationship to the loss

actually sustained by the plaintiff.

Fleming vy. Moore, sub nom. Gazette, Inc.

v. Harris, 325 S.E. 2d 713 (1985), cert.

denied, 472 U.S. 1032 (1985). On remand,

the trial court entered a remittitur that

reduced the award by one-third. Judgment

was entered against the plaintiff for

$233,333.34. Complaint Appendix J, pp.

181-185.

The Supreme Court of Virginia refused to

consider Fleming's further appeals.

Fleming followed the appropriate proce-

dures in challenging the Virginia Supreme

Court's refusal to hear his appeal by

filing a petition for certiorari with the

United States Supreme Court. The petition

was denied. Fleming vy. Moore, sub nom.

Lewis v. Prot Packet Corp., 473 U.S. 905

(1985).

Mr. Fleming was unwilling to abide by the

U.S. Supreme Court's refusal to hear his

appeal. He proceeded to file a Section

1983 complaint in the Western District of

Virginia against Moore for an injunction

to stop enforcement of the judgment. The

Federal District Court dismissed the

complaint on the basis that Fleming's

"sole remedy in the federal courts is by

appeal to the United States Supreme

Court." Fleming v. Moore, C/A “o.

84-0042-C, slip op. at 1 (W.°. Va. March

29, 1985). Fleming appealed this dismiss-

al to the 4th Circuit. The District

Judge's dismissal was upheld by the Court

of Appeals which explained that the

“appropriate procedure" for attacking the

judgement of Virginia's Supreme Court is

a petition to the Supreme Court of the

United States for certiorari. Fleming v.

Moore, 780 F.2d 438, 440 (4th Cir. 1985).

Fleming's attempt to obtain review of

this decision in the U.S. Supreme Court

was denied. Fleming vy. Moore, 475 U.S.

1123 (1986).

In the meantime, Fleming had requested

that the Virginia Supreme Court review

the judgment against him based on inter-

vening developments in Virginia state

law. The Virginia Supreme Court declined

to review the matter and Fleming again

filed a petition for certiorari in the

U.S. Supreme Court. The petition was

denied, Fleming v. Moore, 479 U.S. 890

(1986), as was Fleming's petition for

rehearing. Fleming v. Moore, 479 U.S.

1012 (1986).

Fleming then filed another suit in Feder-

al Court, this time against Moore, his

attorneys and the justices of the Virgin-

ia Supreme Court who had ruled against

him on various appeals. The suit was

brought under 42 U.S.C. 1981, 1983,

1985(3), 1986 and 1988, alleging a depri-

vation of rights under the Thirteenth

Amendment, the Equal Protection Clause of

the Fourteenth Amendment, and the First

Amendment. Fleming claimed that the

Virginia supreme Court was punishing him

as a black person for criticizing a white

man. He asked the court to permanently

enjoin enforcement of the libel judgment

and to award him $1,000,000 in compensa-

tory and punitive damages.

The District Court rejected all of Flenm-

ing's claims for lack of subject matter

jurisdiction. This decision was appealed

to the Fourth Circuit Court of Appeals.

In a per curiam unpublished opinion, the

Fourth circuit affirmed, citing the

Rooker-Feldman doctrine:

Even if we were to assume arguendo,

in our opinion, that the Virginia Supreme

Court was in error in upholding the libel

judgment against Fleming, we would be

without jurisdiction to correct the

mistake. Neither the district court nor

this Court could grant relief to Fleming

on any of his claims without deciding

that the Virginia Supreme Court wrongly

decided the merits of Fleming's state

appeal. In effect, Fleming asks us to sit

in appellate review of a state's highest

court. This we may not do.

In a line of cases stretching over

the past 65 years, the Supreme Court has

emphasized that federal district courts

and federal courts of appeals have no

authority to review a final judgment of a

state court that has acted in its judi-

cial capacity. See District of Columbia

Court of Appeals v. Feldman, 460 U.S.

462, 482 (1983); Rooker vy. Fidelity Trust

Co., 263 U.S. 413, 415, 416 (1923). Only

the United States Supreme Court has that

power. Feldman, 460 U.S. at 482; 28 U.S.C.

1257.

Fleming v. Moore, CA-87-6619 (Slip op. at

5) (4th Cir. 1989). Fleming petitioned

the United States Supreme Court for

certiorari, which was denied. Fleming v.

Moore, 493 U.S. 816 (1989). Fleming asked

for rehearing, which was denied. Fleming

Vv. Moore, 493 U.S. 985 (1989).

Unable to obtain relief in the state

courts of the jurisdiction in which he

resides, or in the federal courts where

he resides, or in the Supreme Court of

the United States, Fleming now brings his

grievance to the Federal court system in

the District of Columbia. Fleming chal-

lenges the invocation of the Rooker-

Feldman doctrine by the Federal District

Court for the Western District of Virgin-

ia, and the Fourth circuit Court of Ap-

peals. Fleming claims the Rooker-Feldman

doctrine, as applied to him and a class

of all similarly-situated black plain-

tiffs, violates his Thirteenth and Four-

teenth Amendment protection because it

prevents him from obtaining access to

federal court. Fleming asserts that this

Court is somehow vested with the authori-

ty to review the decision of the Fourth

circuit Court of Appeals and grant a

monetary award, to be paid by the govern-

ment of the United States.

Decision

No matter how the Plaintiff strives to

describe his suit, this case is nothing

more than another attempt by plaintiff

and his lawyers to collaterally attack in

federal court an adverse state libel

judgment. The explanation for why such a

collateral attack must fail does not

require repeating. Until the Supreme

Court of the United States says other-

wise, the Rooker-Feldman doctrine remains

the law of the land. This Court does not

have jurisdiction to review the decision

of a state supreme court. Neither does

this Court have jurisdiction to review a

decision by the Fourth Circuit Court of

Appeals. This case must be dismissed for

lack of subject matter jurisdiction.

By filing a complaint in this Court

against federal judges who have done

nothing more than their duty by applying

_ the law as the U.S. Supreme Court has

declared it, Fleming has instituted a

meritless action. There is no precedent

for such a lawsuit. Rightfully so. The

rule urged on this court by Mr. Fleming

would make a mockery of the judicial

system of this land. It would place the

judicial system in a perpetual-motion

cycle. No state court judgment would ever

be considered final. Having lost in state

court, a litigant could immediately sue

again in federal court. Then, after

losing in federal court (as Mr. Fleming

lost in the Western District of Virginia

and the 4th Circuit), the litigant could

sue in another district. This cannot be

the law.

Defendant's motion will be granted and

the complaint will be dismissed. An

appropriate order accompanies this opin-

ion.

Date: March 25, 1994

Stanley Sporkin

United States District Court

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 87-6619

JAMES N. FLEMING,

Plaintiff-

Appellant,

versus

W. BEDFORD MOORE; E. GERALD TREMBLAY;

LLOYD T. SMITH; JOHN K. TAGGART III;

MELVIN E. GIBSON, JR.; THOMAS K. ALBRO;

HARRY LEE CARRICO, Chief Justice of the

Supreme Court of Virginia; GEORGE MOFFETT

COCHRAN, Justice of the Supreme Court of

Virginia; RICHARD HARDING POFF, Justice

of the supreme Court of Virginia; ROSCOE

BOLAR STEPHENSON, JR., Justice of the

Supreme Court of Virginia; ALEXANDER

MARKS HARMAN, JR., Senior Justice of the

Supreme Court of Virginia; THOMAS CHRIS-

TIAN GORDON, JR., Retired Justice of the

Supreme Court of Virginia; WILLIAM CAR-

RINGTON THOMPSON, Retired Justice of the

Supreme Court of Virginia,

Defendants-

Appellees

Appeal from the United States District

Court for the Western District of Virgin-

ia, at Richmond. Robert R. Merhige, Jr.,

Senior District Judge. (CA-87-4-C).

Argued: October ?7?, 1988

Decided: January 3, 1989

Before HALL, MURNAGHAN, AND CHAPMAN,

Circuit Judges.

(Excerpts)

Even if we were to assume arguendo, in

our opinion, that the Virginia Supreme

court was in error in upholding the libel

judgment against Fleming, we would be

without jurisdiction to correct the

mistake. Neither the district court nor

this Court could grant relief to Fleming

on any of his claims without deciding

that the Virginia Supreme Court wrongly

decided the merits of Fleming's state

appeal. In effect, Fleming asks us to sit

in appellate review of a state's highest

court. This we may not do.

In a line of cases stretching over the

past 65 years, the Supreme Court has

emphasized that federal district courts

and federal courts of appeal have no

authority to review a final judgment of a

state court that has acted in its judi-

cial capacity. (The U.8. Fourth Circuit

citing, the Rooker-Feldman doctrine and

28 U.8.C. 1257, Id.)

Numerous circuits, including this one,

have refused to allow 1983 plaintiffs to

obtain judicial review of state court

judgments in lower federal courts. (The

U.S. Fourth Circuit citing numerous

circuits.)

The Thirteenth Amendment and equal pro-

tection arguments raised by Fleming

present a harder question ... [such] an

argument lacks merit ... over those

Claims if they are "inextricably inter-

twined" with the state court decision.

(The U.S. Fourth Circuit citing Feldman,

460 U.S. at 482-84, note 16.)

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 87-6619

FILED:

JAN. 22, 1987

U.S. Court of Appeals

Fourth Circuit

JAMES W. FLEMING,

Plaintiff-Appellant,

versus

W. BEDFORD MOORE, III,

Defendant-Appellee.

Appearances: S. W. Tucker, Esquire

B. Benjamin Dick, Esquire,

for Appellant.

Thomas E. Albro, Esquire,

submitted a memorandum via

telephone, for Appellee.

ORDER

H. E. Widener, Jr.

United States Circuit Judge (Excerpt)

Fleming now says that the judgment of the

state court was in violation of the

Thirteenth Amendment to the constitution

because it is claimed it gives effect to

an 1840 Virginia statute, reenacted in

1860, making it a crime for a black man

to use provoking l. guage to a white man.

It is claimed that this is a badge of

slavery, which, of «ourse, it is. (Empha-

sis added.) ... The case is indistin-

guishable from Rooker v. Fidelity Trust

Co., 263 U.S. 413 (1923) in which the

court described a similar attempt as

being an exercise of appellate jurisdic-

tion, p. 416. The reasoning of Rooker has

been more recently affirmed in D.C. Court

of Appeals v. Feldman, 460 U.S. 462

(1983), where the court stated that the

District of Columbia District Court was

without authority to review final deter-

minations of the District of Columbia

Court of Appeals in judicial proceedings

and that review of such proceedings could

be obtained only in the Supreme Court.

The case cited Rooker for its authority,

p. 476.

[PX-1] *

RACISM

I have endeavored to realize the opportu-

nity to provide housing and pleasant

surroundings for working people - the

sort of people who made this the great

country that it is.

I do not expect any Farmingtori members to

buy my houses. The tenured pwsition-

nolders who live off the public dole at

the expense of the working people are

already well-housed, and could not be

expected to live in a racially-integrated

neighborhood, anyhow.

There is a great deal of irony in the

fact that here in Mr. Jefferson's country

200 years after his vision of situating

his beloved Monticello upon the hill-top

overlooking the developing community we

have a replica of Monticello upon the

hill overlooking my property which is

occupied by a man who wants to deprive

working people of the same opportunities

that Mr. Jefferson sought for them. Mr.

Jefferson even located his slaves' quar-

ters down the hill from his house, but

Bedford Moore, the occupant of little

Monticello does not want any black people

within his sight.

There is a great conflict waging between

the haves and the have-nots. Obviously we

have created too much financial security

for the tenured segment of the economic

community whose greed is repeatedly shown

by their expression of "I've got mine -

too bad about you".

I am a lover of liberty and freedom of

opportunity. I cannot stand by and see

the have-nots oppressed by the no-growth

people who are living off of our work. I

know that this Country did not achieve

the highest living standard in the world

by no-growth or by oppression of the

working man, and yet to day the opportu-

nity to improve one's living standard is

being violently opposed by the same

people who oppose my proposed neighbor-

hood.

Pollution of the reservoir is being used

as the current excuse to foster no-

growth. The solution, of course, is to

remove the guaranteed incomes of these

greedy people and put them in the posi-

tion of seeing the world through the eyes

of one seeking the opportunity to improve

his or her living standard. Only then

would they admit that the pollution

excuse is a sham.

I will develop Evergreen, and a lot of

people will benefit from it.

Signed:

JAMES N. FLEMING

wee - OPINION

VIRGINIA:

IN THE CIRCUIT COURT OF ALBEMARLE COUNTY

W. BEDFORD MOORE, III, )

Plaintiff, )

Vv. )

At Law No. 976-L

JAMES N. FLEMING, )

[Filed 3 Jan. 1977]

Defendant

[PX 2]

To the Honorable David F. Berry, Judge of

Said Court:

Comes now the plaintiff, W. Bedford

Moore, III, by counsel, and respectfully

moves this Court for judgment against the

defendant, N. Fleming, and in

support of his action states the follow-

ing:

1. At all times mentioned herein, W.

Bedford Moore, III, has been a private

citizen residing at "Shack Mountain" in a

racially integrated area of Albemarle

County, Virginia. Plaintiff is a member

of the white race and is a professor at

the University of Virginia.

2. At all times mentioned herein, James

N. Fleming has been a real estate de-

veloper engaged in the development of a

proposed residential subdivision known as

"Evergreen" which abuts the "Shack Moun-

tain" property owned by the plaintiff.

James N. Fleming is a member of the black

race.

3. From time to time since the latter

part of 1974, plaintiff has exercised his

constitutional rights as a citizen to

raise issues before governmental agencies

of the County of Albemarle concerning the

environmental impact of "Evergreen" on

the Albemarle-Charlottesville Reservoir

and the surrounding area, including

"Shack Mountain." At no time have any of

plaintiff's efforts in this regard been

motivated by concerns relating to race or

to the defendant personally.

4. On January 15 and 16, 1976, defendant

wrongfully, willfully, maliciously and

injuriously published a certain false,

scandalous, malicious, insulting and

defamatory libel of and concerning plain-

tiff, purporting to have been written by

defendant, in a certain daily newspaper

of general circulation known as "The

Cavalier Daily", published and circulated

ty ns!

in the county of Albemarle and the sur-

rounding area, having a circulation of

approximately 15,000 copies. This false,

scandalous, defamatory, insulting and

libelous matter was printed in the form

of an advertisement entitled "RACISM" a

copy of which is attached hereto as

Exhibit "A" and prayed to be read as a

part of this pleading. This libelous

matte was communicated, conveyed, and

made known by the defendant to the plain-

tiff and divers other persons in Albe-

marle County and the surrounding area.

5. These false, scandalous, malicious,

defamatory and insulting words are, from

their usual construction and common

acceptance, insults and tend to violence

and breach of the peace.

WHEREFORE, on account of said libel, the

plaintiff has been greatly insulted,

mortified, held up to ridicule, humiliat-

ed, aggrieved, and has sustained and is

entitled to recover general and punitive

damages, and plaintiff demands recovery

from the defendant in the sum of FIVE

HUNDRED THOUSAND DOLLARS ($500,000.00)

for general damages, and the sum of FIVE

HUNDRED THOUSAND DOLLARS ($500,000.00)

for punitive damages, together with his

attorneys' fees and the costs of this

action.

Trial by jury is demanded.

W. BEDFORD MOORE, III

By counsel

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.