Reply Brief — Goins v. Lang

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DEC 27 1993

OFFiUE OF RHE GLORA

NO. 93-735 —----—

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

N. WALTER GOINS, Petitioner,

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THE VINNLALECOW of er —J mi JS rLAlIo

FOR THE EIGHTH CIRCU

REPLY BRIEF

Albert Turner Goins, Sr.

Counsel of Record

2311 Wayzata Boulevard

Minneapolis, MN 55405

(612) 374-5857

Attorney for Petitioner

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...... . ii

REPLY STATEMENT OF THE CASE... . 2

A. The District Court

ge got ue et ge 2

REASONS FOR GRANTING REVIEW... 2

A. This Court’s authority

Over Matters Of

pall 2

B. Respondents’ Brief Raises

the Fundamental Issue

Whether Article IIt

Courts May "Farm Out”

Their Jurisdiction to

Article I Courts. ...

THE SEPARATION OF POWERS

The Evidence.

oO

an > &

CONCLUSION

~

TABLE OF AUTHORITIES

Page

Cases:

Bruner v. ited States, 343 U.S. 907

(1952) >. 7” . >. >. . >. . >. >. >. >. > >. > 3

Buckley v. Valeo, 424 U.S. 1 (1976) . 4

Hickman v. or, 329 U.S. 495 (1947) 3

INS v. Chadha, 462 U.S. 919 (1983) ° 4

Marbury v »_Hadiso on, 5 U.S. (1 Cranch) 137

(1803) * > >. . >. >. . >. . >. . >. >. 3

Marshall v. United States, 360 U.S. 310

(1959) el el >. >. >. * . . >. >. . >. > > >. 3

Thermtron Products, Inc. ?

Hermansdorfer, 423 U.S. 334 (1976) ° 3

Youngstown Sheet & Tube Co. v. Sawyer,

243 U.S. 379 (1982) . «© © © eo = 2 co 4 8

nal_Fapek Company, 41¢

U.S. 291 aaa oe 3

Statutes:

waa ELSOD «6 «6c eh epee hee se we ee

oe OS

ii

Rule 201 “aS a ae Se ba Or ae a ee ee ee ee 3

Other Authorities:

Small Business Administration Act of

Spee 6 © & @ 6 © 6 a &- ss & © & 2S oO

Tucker Act vb! a ae eee Tae atae 3

11ii

NO. 93-735

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

N. WALTER GOINS, Petitioner,

Vv.

DALE W. LANG, ET AL., Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

REPLY BRIEF

Petitioner, N. Walter Goins, hereby

files this reply to the Brief in

Opposition of Respondents Syndicated

Communications, Inc. ("Syndicated"),

1

Syncom Capital Corp. ("Syncom"), and

Broadcast Capital, Inc. ("Broadcap"),

hereinafter collectively the "SBIC’s".!

I.

REPLY STATEMENT OF THE CASE

A. The District Court Docket.

Respondent SBIC’s claim most notably

in their responsive brief that there is

no evidence of any error in the district

court docket below. Br. in Opp. at p.

23. With respect to this assertion,

Petitioner submits to this Court in his

Reply Appendix a copy of a document filed

on Petitioner’s behalf in the district

‘Each of the named respondents in

this case (although denominating

themselves as the "Banking Respondents")

is an SBA licensee under the Small

Business Administration Act of 1958--

hence, SBIC’s or Small Business

Investment Corporations.

2

court on April 08, 1992 styled

"Plaintiff’s Affidavit of Damages." This

document, which bears the stamp of the

District Court for the Minnesota District

(including its date-stamp of April 08,

1993) nowhere appears in the docket

previously generated by the District

Court on appeal the Court Appeals so as

to reflect the April 08, 1993 filing.

Petitioner must reluctantly conclude

that this document was erroneously or

intentionally omitted from the district

court docket, despite the fact that the

docket had not closéd on that date. This

Court in reviewing a matter on petition

for certiorari may take notice of the

docket as transmitted to the Court of

Appeals by the District Court.

II.

REASONS FOR GRANTING REVIEW

A. j urt’s it Vv

Matters Of Procedure

Respondent SBIC overlooks’ this

Court’s traditional and well-settled

responsibility to review matters

involving federal procedural rules and

jurisdictional statutes (apart from its

long-established role of interpreting the

Constitution; see Marbury v. Madison, 5

U.S. (1 Cranch) 137 (1803).

The special supervisory role of this

Court in establishing and settling issues

of federal court procedure negates the

SBIC’s asseverations. that this case

involves matters merely "episodic" and

"academic". Br. in Opp. at p. 26.’

The issue at hand, as conceded by

the Respondents, is whether an infra-

district court removal such as that

involved in this case can operate to deny

Petitioner a default judgment against

. This Court has repeatedly

recognized as "certworthy" cases in which

it was called upon to interpret Federal

Rules and procedural/jurisdictional

statutes. See ermtron oducts nc. Vv.

Hermansdorfer, 423 U.S. 334 (1976);

Bruner _v. United States, 343 U.S. 907

(1952) (holding that Congress has the

power to determine federal District Court

jurisdiction under the Tucker Act;

Marshall v. United States, 360 U.S. 310

(1959) (holding that this Court "[{iJn the

exercise of [its] supervisory power to

formulate and apply proper standards for

enforcement of the criminal law in the

federal courts" may order new trial);

Zahn v. International Paper Company, 414

U.S. 291 (1973) (interpreting the proper

application of Rule 23(b)(3) and 28

U.S.C. § 1332); Hickman v. Taylor, 329

U.S. 4395 (1947) (deciding scope of

discovery rules).

defendants who fail to timely answer in

the district court. However,

notwithstanding the particular merits of.

Petitioner’s claims, the Respondents’

Brief in Opposition raises many and more

serious questions than it answers. 3

Respondents argue at p. 26 of the

Brief in Opposition that Local Rule 201

"provides an alternative basis for the

decisions below." Local Rule 201 (as set

forth at p. 27 of the Petition) merely

refers those cases that are otherwise

properly removed. Petitioner asserts that

cases originally filed in the federal

District Court (the court to which

removal is taken) are not be subject to

"infra-district court" removal,

notwithstanding the additional

constitutional pitfalls which result from

such "removals". Their contention,

therefore, that Petitioner has. not

contested this issue below is meritless

and incorrect.

B. Respondents’ Brief Raises the

Fundamental Issue Whether

Article III Courts May "Farm

Out" Their Jurisdiction to

Article I Courts.

Despite the argument of Respondents

that this petition is somehow frivolous,

it is apparent that their Brief in

Opposition urges and suggests the Court’s

blithe acceptance of a federal

jurisdictional framework wherein Article

III federal courts are permitted not only

to decide whether they properly have

jurisdiction over a specific case or

controversy, but to establish the

"regulations and exceptions" as to law

and fact for the exercise of the judicial

power established by the Constitution.

The position espoused by the

Respondents is further aggravated by the

fact that under the circumstances in this

7

case, the role of the Article III court

in determining or defining its

jurisdiction regarding a particular kind

of case is not limited to. only

constitutionally-mandated Article III

courts~--but, rather it would extend that

power to establishing and defining the

jurisdiction of Article I (legislative or

Congressional) courts with regard to

caseS or controversies’ as they are

defined by Article III’s judicial power

clause.

Cc. THE SEPARATION OF POWERS

The doctrine of the Separation of

Powers applies no less to the judiciary

than to the remaining two branches of the

Federal Government. See and cf. INS vy.

Chadha, 462 U.S. 919 (1983); Buckley v.

Valeo, 424 U.S. 1 (1976); and Youngstown

8

Sheet & Tube Co. v. Sawyer, 343 U.S. 579

(1952). In Youngstown, supra, Justice

Frankfurter stated in his concurring

opinion: "Not so long ago it was

fashionable to find our system of checks

and balances obstructive to effective

government. It was easy to ridicule that

system as outmoded--too easy. The

experience through which the world has

passed in our own day has made vivid the

realization that the Framers of our

Constitution were not inexperienced

doctrinaires. These long-headed

statesmen had no illusion that our people

enjoyed biological or psychological or

sociological immunities from the hazards

of concentrated power. It is absurd to

see a dictator in a representative

product of the Mississippi Valley. The

9

accretion of dangerous power does not

come in a day. It does come, however

Slowly, from the generative force of

unchecked disregard of the restrictions

that fence in even the most disinterested

assertion of authority." (Italics not in

original) Youngstown Sheet & Tube, supra

at pp. 593-94.

It would seem that this Court has

implicitly acknowledged that the

restraint of divided powers as

contemplated in the Framers’ elaboration

of the Separation of Powers doctrine

applies to the Judicial Branch equally as

well as to those branches which play an

explicitly representative role in our in

democratic system.

What then are the limits on the

Judiciary within the confines of a case

10

or controversy properly before it? It

would seem that the best point of

reference for defining these limits is

the Constitution itself, and the roles

which it assigns to the separate branches

define within its several articles.

Respondents in arguing that it was

within the power of the Bankruptcy Court

to decide its jurisdiction, and

subsequently within the discretion of the

District Court to accept their motion for

filing, have therein misconceived or

misconstrued the essential and foremost

issue in this case. That issue revolves

around the legitimacy of the District

Court to define its own jurisdiction and

that of the Bankruptcy Court with regard

to this case, at all.

11

’

While courts clearly have the power

to decide their jurisdiction with regard

to a specific case before them, it is

however a matter of some constitutional

interest whether courts (operating under

the judicial power of our Constitution)

may define or establish the jurisdiction

of Article I courts or that of cases

which they hold are not directly before

them for decision.

The Constitution has struck the

balance of determining the regulation of

jurisdiction with regard to classes or a

Class of "cases or controversies" by

assigning this role to the Congress--not

the Federal Judiciary. The Article III

courts, may decide the existence of their

jurisdiction over a particular case--but

they may not determine the appropriate

12

Ee eT eT

jurisdiction of another court, or the

class of cases over which they will or

will not exercise jurisdiction.

Nevertheless, that is essentially the

state of affairs which the Respondents

argue makes this case academic and

episodic--the state of affairs they argue

is of no constitutional significance.

D. The Evidence.

Petitioner also notes that

Respondents have argued that there is no

evidence that the docket is incorrect.

As stated above, Petitioner includes in

his Reply Appendix a copy of a document

filed April 08, 1992 in the District

Court in contradiction of Respondents’

allegation at p. 25 of their Brief in

Opposition.

13

oa

Itt.

CONCLUSION

Because this Court plays a special

role in deciding matters of procedural

Significance in the federal judicial

system, and because Respondents’ own

Brief in Opposition raises more concerns

than it resolves, including suggesting

that Article III courts may now define

the jurisdictional limits which are

properly the task of the Congress to

regulate--this Court should grant

certiorari to decide if- the

jurisdictional scheme in the court below

violates the doctrine of Separation of

Powers, and by so doing, decide the

merits of the Petitioner’s individual

Claims set forth in his petition to this

Court.

14

Dated: | - is 44

Respectfully submitted,

Lf et hE

bert Turner Goins, Sr.

Counsel of Record

2311 Wayzata Boulevard

Minneapolis, MN 55405

(612) 374-5858

Attorney for Petitioner

15

APPENDIX

1. PLAINTIFF’S AFFIDAVIT OF DAMAGES

PP.1-4.

16

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF MINNESOTA

FOURTH DIVISION

N. Walter Goins, STAMP OF DISTRICT

COURT - 4-8-92

Plaintiff,

Vv. Case No: 4-92cv154 (HHM)

Dale W. Lang, et al.,

Defendants. Plaintiff’s

Affidavit

of Damages.

1. Pursuant to the Rule 55 of the Federal

Rules of Civil Procedure, Albert Turner

Goins, Sr., as counsel for Plaintiff, N.

Walter Goins, submits this affidavit of

damages and the amount due in support of

Plaintiff’s request to the clerk of this

Court for an entry of judgement by

default against defendants Syndicated

A

EE

Communications, Inc. and Broadcast

Capital, Inc. in the above styled case,

No. 4-92cv154 (HHM). Defendants

Syndicated Communications, Inc., and

Broadcast Capital, Inc. (hereinafter

"Syndicated" and "Broadcap",

respectively) have acknowledged service

of the summons and complaint in this

proceeding. Copies of said

acknowledgements are made a part of this

affidavit. Syndicated and Broadcap were

served and acknowledged service no later

than March ave 1992. Defendants

Syndicated and Broadcap have failed to

answer or defend in this matter as

required by law, statute and rule.

2. Plaintiff, N. Walter Goins, by his

complaint demanded damages from the

defendants Syndicated and Broadcap in the

APP. - P. 2

threefold amount of $2,138,500.00 [3x

Two Million One Hundred Thirty-Eight

Thousand Five Hundred Dollars), and

plaintiff demanded additional damages in

the amount of $2,138,500.00 [Two Million

One Hundred Thirty-Eight Thousand Five

Hundred Dollars}; for a total amount of

$12,754,000°500 [Twelve Million Seven

Hundred Fifty-four Thousand Dollars]

total plus legally allowed interest from

the date of entry of judgement.

3. Plaintiff’s attorney hereby states

pursuant to Rule 55 of the Fed. R. Civ. P

and title 28 U.S.C. §1746 that the amount

owed by the defendants Syndicated

Communications, Inc. and Broadcast

Capital, Inc., severally and/or jointly

is $12,754,000.00 [Twelve Millions Seven

Hundred Fifty-four Thousand Dollars. ]

APP. - P. 3

4. Plaintiff, N. Walter Goins, therefore,

requests by his counsel, that judgement

be entered for him according to law

against defendants Syndicated

Communications, Inc., and judgement be

entered against defendant Broadcast

Capital, Inc., for the amount of Twelve

Million Seven Hundred Fifty-four Thousand

and no/100ths Dollars.

Dated: April 8, 1992 By:

Albert Turner Goins

Atty. No. 126159x

Albert T. Goins

Attorney for Plaintiff,

N. Walter Goins, III

1729 East County Road D

Maplewood, MN 55109-5305

(612) 777-4757 ph.

Statement in of Albert Turner Goins, Sr.

pursuant to title 28 U.S.C. 1746.

1. I, Albert ‘tucner Goins, Sr., am an

attorney duly admitted to practice in

this federal district court. I am

attorney for plaintiff, N. Walter Goins

in case number 4-92cv154(HHM) in which

defendants Syndicated Communications,

Inc. and Broadcast Capital, Inc. were

served with a summons and complaint.

Said service was properly acknowledged by

defendants Syndicated communications,

Inc. and Broadcast Capital, Inc. no later

than March 17,1 992, and said defendants

have failed to defend in this matter

within the time prescribed by law or

within twenty days.

2. Attached are true and correct copies

APP. - P. 5

of the acknowledgements of defendants

Syndicated Communications, Inc. and

Broadcast Capital, Inc. made pursuant to

Rule 4 of the Federal Rules of Civil

Procedure.

3. These statement are made under penalty

of perjury on the date hereafter.

Dated: April 8, 1992 By

Albert Turner Goins

APP. - P. 6