Petition for Writ of Certiorari — Simmons v. Frankel

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No. | MAY §~ 1993

OFRCE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1992

AUGUSTUS J. SIMMONS,

Petitioner,

EMIL H. FRANKEL, et al.,

Respondents.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FOR WRIT OF CERTIORARI

Aucustus J. SIMMONS,

Petitioner

P. O. Box #1

Windsor, CT 06095

(203) 569-6714

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the “taking” of the Petitioner’s land by the

Federal Aviation Administration and the United States

Army Corps of Engineers, in concert with the Connecti-

cut Department of Transportation, without due process or

the payment of just compensation for a period of thirty

(30) years violates the Fifth and Fourteenth Amendments

of the Constitution of the United States thereby giving

rise to a cause of action under 42 U.S.C. § 1983?

il

LISTING OF PARTIES

Petitioner:

Augustus J. Simmons, Landowner

Respondents:

Emil H. Frankel, Commissioner

Connecticut Department of Transportation

Barry L. Harris, Administrator

Federal Aviation Administration

Lieut. Gen. Henry J. Hatch, Chief Engineer

United States Army Corps of Engineers

John J. Bartizek, District Clerk

Metropolitan District of Hartford

William P. Barr, Attorney General

United States Department of Justice

Richard Blumenthal, Attorney General

State of Connecticut

Lt. Col. John J. Collins, Administrator

Connecticut Air National Guard

* Julia Dicocco Dewey, Esq. :

Connecticut State Attorney’s Office

* Richard Palmer, Esq.

U. S. Attorney’s Office

There is no parent or subsidiary company to be listed.

* designated by Second Circuit Court of Appeals

** designated by Second Circuit Court of Appeals

ili

TABLE OF CONTENTS

Page

Oe i

LISTING OF PARTIES AND STATEMENT UNDER

Darr Ge RULE 29.1............. cc ese. ii

Sy 0s iii

ge ss | iv

Ee are l

STATEMENT OF JURISDICTION................... 2

STATUTE AND CONSTITUTIONAL PROVISIONS

EN eek LAS ads sks oe 50 Pera eita baa 2

eg | 3

REASONS FOR GRANTING THE WRIT ........... 12

1. The Opinion Below Reflects A Widespread Con-

flict With Other Jurisdictions, And This Court,

Concerning The Availability And Applicability

Of The Civil Rights Statute, 42 U.S.C. § 1983... 12

2. The Opinion Below Reflects A Widespread Con-

flict With Other Jurisdictions, And This Court,

Concerning The Due Process And Just Compen-

sation Clauses Of The Fifth And Fourteenth

a hbk a wees 18

3. The Decision Below Is Incorrect................ 23

NT eT Te eee cha aes ukcavavarn 26

iv

TABLE OF AUTHORITIES

Page

Cases CITED:

Abdo Ahmed Nagi v. United States, 751 F2d 826

SR ES AK A 5a aa 5s CANON OER OES Ses Rawk e ea 26

Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705

i Peer reer rr re on err tiny Reve 16

Chrysler Credit Corp. v. Fairfield Chrysler, 180 Conn.

BER RENG Wo 45 PAN AKEA SASS SE eee a cea eee ks 25

City of Atlanta v. United States, 531 F.Supp. 506

TRUE A eR KARE UR GSS Sea RNKNA RR EVE RE ERE MONIES 7, 19, 20

City of Columbia, S.C. v. Costle, 710 F.2d 1009 (1983)... . 23

Colorado River Cons. Dist. v. United States, 424 U.S.

og TTT Tee eee er ee reer re ore E TOT ee 16

Fuentes o. Shevin, 407 US. 67 (1972). .........6..55- 26

Golden State Transit Corp. v. City of Los Angeles, 110

ee TTS eer ory Serer 15

Kaiser Aetna v. United States, 444 U.S. 164 (1979)..... 16

Lake Carriers Assn. v. MacMullan, 406 U.S. 498

PWM Sa pan aos eek soe ee Sue casa ad dAe Reena an 25

Lynch v. Household Fin. Corp., 405 U.S. 538 (1972) .17, 25

Marshall v. Clark, 170 Conn. 199.............0........ 25

Martin v. Hunter's Lessee, 14 U.S. (1 Wheat) 304

eras re ace ae ee ee 24

McNee v. Board of Education, 373 U.S. 668 (1963)..... 13

peared ©. Fuge, 365 U.S. 167 (1961)... .......5-55.%.. 13

Vv

TABLE OF AUTHORITIES - Continued

Page

New Haven v. East Haven, 35 Conn. Supp. 157

WOPEREN CS ieee aten rete er ee eeete eeu 24

Noble v. Union River Logging R.R., 147 U.S. 165...... 24

Peacock v. City of Greenwood, 384 U.S. 808, 86 S.Ct.

sel itn snn SE ERE ELE TT TET ene 17

Port Chester Yacht Club v. Jasillo, 614 F.Supp. 318

eT. WOME sn oes eu savadasvenen cent orieers ce 25

Sheridan v. Garrison, 415 F.2d 699 (5th Cir. 1969)..... 17

Simmons v. State of Connecticut, 160 Conn. 492

gd SRE SRO eee ee ne eer re 5

Simmons v. Wetherell, #163875 (1970)........... 6, 10, 24

Town of New Windsor v. Ronan, 481 F.2d 450 (1973) .... 19

United States v. Causby, 328 U.S. 256..... 16, 19, 20, 22

United States v. New Haven, 447 F.2d 972 (1971)....... 5

Ward v. Downtown Development Auth., 867 F.2d

RTA trend Bie Gbeitc laa cunedliyn teach 15

Wright v. City of Roanoke, 479 U.S. 418, 107 S.Ct.

fT ENE RENAN Lee 200? 8 Naa, 13

STATUTES:

Oe ates SR yo oe ee eh son wage en kda deh peer eee 2

Oe a COE Fs os exch eet diask ene 12, 17

Oe es Oh ROO hin os cae seu pounced ae passim

OS eee rene eee nt | 6, 18

OE WRC © ONI8 Son ok ioc 13, 22, 23

vi

TABLE OF AUTHORITIES - Continued

42 U.S.C. § 4651-4655....0..00..00.000.

TSS ae | nae es ce

49 U.S.C. § 1348.............0..00..

ae

49 U.S.C. § 1701....... 0c cece cece ee. sptutcccese

ir iy ass as & BAA SK adit Ck we bee 10

ke Ee a 6

LEGISLATIVE MATERIAIS:

President’s Memorandum to improve administra

tion and implementation of the Uniform Reloca-

tion Assistance and Real Property Acquisition

Policies Act of 1970 (February 27, 1985)........ 14

H.R. Rep. No. 91-656, 91st Cong. 2d Sess. (1970) . 23

1970 U.S. Code Cong. & Admin. News 5853 . | 23

OTHER MATERIALS:

47 Am. Jur. 2d Judgments § 752, 753.... Se

A Bek sade vos caw ar eee 6, 19

Se a | | 24

NI MONE BE ceva s cates aceaeuce es ; 13

Lease Between Connecticut Department of Trans-

portation and United States of America. . 16

Ss 8 eee ee 2

In The

Supreme Court of the United States

October Term, 1992

ee —_—_——— @ —_—__—___—__—- —

AUGUSTUS J. SIMMONS,

Petitioner,

EMIL H. FRANKEL, et al.,

Respondents

——EEE * ————

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

— e —

PETITION FOR WRIT OF CERTIORARI

————————————————— = —————————

The petitioner, Augustus J. Simmons, respectfully

prays that a writ of certiorari issue to review the unre

ported order and opinion of the United States Court of

Appeals for the Second Circuit entered in this proc eeding

on February 23, 1993.

OPINION BELOW

The District Court judgment dismissing the com-

plaint dated July 13, 1992 is printed at Appendix B, infra,

and the order of the United States Court of Appeals for

1

——E——————————————

the Second Circuit dated February 23, 1993 is printed at

Appendix A, infra, and is not officially reported.

¢

STATEMENT OF JURISDICTION

The order of the United States Court of Appeals for

the Second Circuit was entered on February 23, 1993. This

Court’s jurisdiction is invoked pursuant to 28 U.S.C. 1254

and under Rule 17.1 of the United States Supreme Court

rules.

STATUTE AND CONSTITUTIONAL

PROVISIONS INVOLVED

42 U.S.C. § 1983

“Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any state or terri-

tory, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.”

Amendment V, Constitution of the United States

“ ... Nor shall private property be taken for public

use, without just compensation.”

Amendment XIV, Constitution of the United States

sé

.. . Nor shall any state deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.”

The Administrative Procedures Act 5 U.S.C. § 701 et seq.

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 entitled

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 defen-

dant in any such action, and a judgment 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 suc-

cessors in office, personally 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.

@— ee

STATEMENT OF THE CASE

On December 15, 1960, petitioner Augustus J. Sim-

mons was in receipt of a letter from the Department of

Aeronautics of the State of Connecticut wherein the State,

in conjunction with the federal government, entered into

an agreement in 1955 for the acquisition of land for

“doolittle clear zones” of both ends of Runway 6-24 at

Bradley International Airport located in northern Con-

necticut. A portion of petitioner’s land is located in the

doolittle clear zone and was, starting in 1962, invaded

and appropriated by the federal agency, Federal Aviation

Administration (F.A.A.), with the erection of permanent

navigational instrumentation on the surface of the prop-

erty to control air traffic in and around the navigable

airspace of the airport.

Starting with February 28, 1962, service was made

upon Anastasia Simmons, mother and predecessor in

title, of a condemnation of certain real property to be

used for federal instrumentation, without compensation

or deposit with the court. In retrospect, even though the

procedures used by the state agency were, in due course,

ruled illegal, null and void, it served the purpose and the

means by which the federal agency (F.A.A.) was able to

engage in “major federal action” with the installation of

permanent instrument landing system lights and thus

begin the servitude imposed upon the landowner, with-

out compensation - up to the present date.

The exclusive responsibility for air-navigation facili-

ties and the surface upon which they were mounted is

that of the federal agency (F.A.A.) under the authority

granted under 49 U.S.C. § 1348 (b) and (d).

It has been the position of the United States that the

clear zones, referenced in first paragraph as “doolittle

clear zones,” embrace navigable airspace which are

within the sole jurisdiction of the federal government.

Under the Federal Aviation Act of 1958 (49 U.S.C. § 1301

et seq. as amended) the United States has asserted that it

possesses and exercises “complete and exclusive national

sovereignty in the airspace of the United States.” 49

U.S.C. § 1508a. See United States v. New Haven, 447 F.2d

972.

A second attempt at condemnation by the state

agency in 1968 under statutes that were totally irrelevant

to taking of property for airport purposes was also

declared null and void in March, 1971. (160 Conn. 492).

By judgment dated April 16, 1971 and recorded on the

Land Records March 24, 1972 at Vol. 52, p. 242-243 of East

Granby, Connecticut Land Records, all previously con-

demned properties of petitioner reverted, passed to and

vested back to the owner - and again the owner was

required to pay property taxes while the uninterrupted

servitude by the F.A.A. continued unabated.

Almost simultaneously with the March, 1971 decision

of the State Supreme Court referenced above was the

enactment by the United States Congress in January, 1971

of the Uniform Real Property Acquisition Act, Title III (42

U.S.C. §§ 4651-4655). The effective date of this Congres-

sionally mandated legislation was to be no later than July

1, 1972 after which section 305 (42 U.S.C. § 4655) shall be

completely applicable to all states with the land acquisi-

tion procedures specified in § 4651 establishing uniform

and equitable land acquisition policies for federal and

federally assisted programs. Also, Connecticut General

Statute 13b-50(d) clearly states all acquisitions financed

wholly or partly with federal monies are to be done in the

manner prescribed by the federal authorities, acting

under the laws of the United States, and any rules or

regulations made thereunder, notwithstanding any other

state law to the contrary. Thus, after July 1, 1972, it was

implicit and mandatory that all acquisitions for airport

purposes were to proceed under federal regulations and

federal — not state - law.

Prior to the enactment of the Uniform Acquisition

Act petitioner was instrumental in getting a special act

passed by the Connecticut General Assembly to sue the

state for damages over “loss of use of land” arising out of

the bumbling condemnation proceedings. On January 5,

1970, petitioner Simmons brought such a suit, docket no.

163875 (Simmons v. Wetherell). Phe Connecticut Depart-

ment of Transportation, in order to be in compliance with

the mandates of the Uniform Real Property Acquisition

Act were instrumental in having the Connecticut General

Assembly enact legislation (C.G.S. 48-17a, b, c) that corre-

sponds to the special act of the petitioner. Since neither

the state nor the federal agency have acquired a “satisfac-

tory property interest” as defined in (14 C.F.R. 152.1), no

damages have been resolved.

The servitude by the federal agency, F.A.A., against

the landowner after the aborted second condemnation of

1971 resulted in the federal agency entering into private

leasehold interests with the Connecticut Department of

Transportation without payment of compensation to the

state agency or the owner, without any recording on the

Land Records, notwithstanding that 42 U.S.C. § 4628 of

the Uniform Acquisition Act controls: “whenever 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.”

The fact that the federal government possesses exclu

sive jurisdiction over the airspace and possesses illegal

and fraudulent leasehold interests to the real property

upon which its navigational instrumentation is located

makes the United States an indispensable party to the

litigation and subject to review action as permitted by 5

U.S.C. 701 et seq. and the upholding of the dismissal by

the Second Circuit Court of Appeals is in direct conflict

with City of Atlanta v. United States, 531 F. Supp 506

The public policy of the Connecticut Department of

Transportation for real property acquisition process for

transportation projects was submitted to petitioner by

James Lewis, Director, Office of Rights of Way, and reads

“Title search activities are normally completed during the

preliminary engineering phase of a project to ascertain

ownership of the land to be acquired. The rights of way

phase of the project normally begins with the preparation

of appraisals on all property to be acquired. This is fol

lowed by negotiations with affected owners, acquisition

of title via a deed or condemnation, and relocation of

displaced individuals prior to construction of the pro-

ject.”

Two executory contract meetings were held for the

sale of land, the first on December 13, 1977 and the

second on January 4, 1978 without any appraisals being

submitted or any reference to damages and each was

repudiated, disaffirmed within twenty-four hours for rea-

sons of fraud, duress, lack of appraisals, concealment of

leasehold interests granted by the sponsor to the federal

agency of the subject property, failure to make the federal

agency a party to the action, and, failure after two

botched condemnations to make an assessment of dam-

ages — prior to the acquisition of title. The INTENT was

obvious to circumvent the public policy of regulations

and guidelines mandated by the Uniform Act and the

policy and guideline of the Connecticut Department of

Transportation — as submitted to petitioner. After the first

executory meeting of December 13, 1977, petitioner

requested withdrawal of counsel on December 22 and 23,

both verbally and by memorandum and appeared on

January 4, 1978 with new counsel, but, new counsel was

not permitted to represent petitioner.

Notwithstanding the repudiation and disaffirmance

the second time via a certified letter and in person, a

“closing” was still scheduled for April 19, 1978 with a

court reporter present and a witness for petitioner, not

realizing a reporter would be present. A portion of pro-

ceedings held on April 19, 1978 at offices of Rogin,

Nassau, Caplan, Lassman and Hirtle with court reporter

William G. Crampton reads:

Mr. Hirtle: Mr. Simmons, as I understand it, you

don’t want to proceed further with the closing, is that

correct?

Mr. Simmons: Bob Hirtle, I have the highest respect

for you. Just like I sent you the letter, | have the highest

and utmost respect for Referee Shapiro and | further

qualified it by saying that I am not going to be a party to

any deal which is going to be coming out and being made

public whereby the Rogin firm and my good friends here,

David Salzman and Steve, who I have been very prone to

pick on. It is just not fair to everybody to have this kind

of an arrangement and I am not going to be a party to it.

What the State is attempting to do here is to say okay,

let’s date this thing back so their skirts are clean. They

want me to go back and do battle with the Town over

taxes and I say bullshit to that. We are going to clear that

matter up before there will be any goddamned closing.

We are going to get that cleared up and they are going to

be open and above board. Hell, it is everybody and I’m

telling you, everyone at the table, everything is going to

be above board and no dealing is going back to Novem-

ber of ‘64.

Mr. Hirtle: You will not sign a deed today to con-

summate the closing, is that what I understand?

Mr. Simmons: Because the agreement states and |

have to say if any portion of it is a nullity then it is all a

nullity and I am not going to be a party to anything that

is a nullity.

Mr. Neusner: Is that a definite negative answer?

Mr. Hirtle: You are instructing counsel not to pro-

ceed with the closing because you consider it to be a

nullity?

Mr. Simmons: I am going to answer you, Bob, by

saying that I sent you a certified letter expressing my

position and when | talked to you on the phone, | said to

myself, at least I am going to give them the courtesy of

putting in an appearance today. I think that is a sufficient

answer.

Mr. Hirtle: So I am not to proceed to closing and

you will not sign the deeds today?

10

Mr. Simmons: That is correct.

Mr. Hirtle: And the meeting is adjourned.

(Whereupon at 11:44 a.m. the closing was adjourned.)

Appearances: Augustus (Ozzie) Simmons; John

Kataja, witness; David Salzman, Esq.; Stephen Silverman,

Esq.; Dennis Ceneviva, Esq.; Robert L. Hirtle, Esq.; pre-

sent also was Edward Rogin, Sr., Esq. but not listed.

On June 2, 1978, without any proceedings being insti-

tuted by any state or federal agency, without service of

process on any parties, Referee Shapiro proceeds under

Simmons v. Wetherell, #163875, petitioner’s private dam-

age action to state that the real property now belongs to

the State of Connecticut and terms his edict a “Supple-

mental Judgment.” Placed on the Land Records on June 5,

1978 over the caption of Simmons v. Wetherell #163875 was

the edict of Referee Shapiro listing various encumberers,

but not the owner, with a return day of the first Tuesday

of July, 1978 that was never returned to court for subject

matter jurisdiction as no proceedings were ever insti-

tuted.

In a subsequent proceeding in State Court on June 7,

1982, again, under the caption of Augustus ]. Simmons v.

Wetherell, #163875, just compensation was foreclosed to

all lien and mortgage holders who by statute (C.G‘S.

48-21) must be compensated before the owner receives

any compensation and cannot be considered for any com-

pensation as process of service was never made on any

parties.

[Excerpt from transcript before Hon. A. Dupont,

Judge, June 7, 1982]

11

Victor Feingold, Esq., Assistant Attorney General,

page 15-16.

“Now, I have previously furnished to your Honor, a

certified copy of the complaint from Mr. Simmons pend-

ing in the United States District Court. This morning

Attorney Bass is present on his motion, and I do not

know if he has actual or constructive knowledge of the

fact that there is pending in the United States District

Court, a very important civil action, in Part A, Civil

Rights Action, which if tried to conclusion could very

well result in a judgment for Mr. Simmons that the State

Court proceedings violated his rights. | am speaking of

the State Court proceedings that led to the judgment on

stipulation. Now, using that as a piece of evidence, |

cannot, in good conscience, ever or anticipate that Mr.

Simmons would ever deliver to the State a deed of the

specific land within the stipulation for the agreed-upon

price. If he will not deliver the deed, and there is no deed

of Mr. Simmons in the custody of the court for delivery to

the State, as there is money on deposit, then I cannot see

why the State funds should be used to start paying his

obligation and his bills, because that Is all this thing

amounts to. Well, to use this money to pay his bills where

Mr. Simmons, himself, resisted it, quid pro quo, and has

no intentions of ever delivering a deed to the State for the

agreed-upon price.

Now, since this judgment on stipulation is defined by

me, and I believe as a matter of law must be defined as an

executory agreement for the sale of the land on an

agreed-upon price, and unenforceable because of the stat-

ute of limitations, the Superior Court cannot entertain an

action or specific performance on behalf of the State.

TS

12

Well, the entire matter must be left for further proceed-

ings in an effort to adjust the differences of the parties.

The action for the judgment on stipulation cannot be

characterized as an equitable claim. It is in no way a

condemnation matter brought under any procedures of

the State of Connecticut to condemn land for airport

purposes or any other purposes.”

On or about February 1, 1991, encroachment with erec-

tion of fences and removal of timber was made by the

United States Army Corps of Engineers and the Air National

Guard on a separate and distinct parcel from that upon

which FAA appropriated for navigational instrumentation,

without any contact with the owner, without initiating any

legal procedures or making any title searches, without pay-

ment of just compensation. The dismissal of petitioner’s

complaint by the District Court and failure of the Second

Circuit Court of Appeals to reverse and remand for further

hearing is error, is contrary to the Fifth and Fourteenth

Amendments of the Constitution, is in direct conflict with

federal regulations as promulgated under the Uniform Act,

continues to impose undue and prolonged hardship, and is

in direct conflict with its previous reported decision of 1973

(472 F.2d 509).

REASONS FOR GRANTING THE WRIT

1. The opinion below reflects a widespread conflict

with other jurisdictions, and this Court, concerning

the availability and applicability of the Civil Rights

Statute, 42 U.S.C. § 1983.

When federal claims are premised on 42 U.S.C. § 1983

and 28 U.S.C. § 1343(3) as they are in the case at bar,

13

illuminating the fact that no proceedings were instituted

or pending in the state or federal courts for land acquisi-

tion, and no just compensation has been paid by any state

or federal agency for resolution of the servitude imposed

by the federal agency(s) and Congress has assigned to the

federal courts the paramount role to protect constitu-

tional rights, McNee v. Board of Education, 373 U.S. 668

(1963); Monroe v. Pape, 365 U.S. 167 (1961); the decision of

the Second Circuit to not permit and avoid altogether the

federal questions turns the principles of federalism on its

head.

In all cases, the availability of the § 1983 remedy

turns on whether the statute, 49 C.F.R., Part 24, by its

terms or as interpreted, creates obligations, “sufficiently

specific and definite” to be within “the competence of the

judiciary to enforce,” Wright v. City of Roanoke Housing

Authority, 107 S. Ct. 773-775 (1987), is intended to benefit

the putative plaintiff, and is not foreclosed “by express

provision or other specific evidence from the statute

itself.” Id. at 107 S. Ct. 770-773.

Where Congress has amended the original regula-

tions (Sec. 213 of the Uniform Act - 42 U.S.C. 4633) under

public law 100-17-April 2, 1987 and the requirement that

interested persons be given general notice of proposed

rule-making changes and an opportunity for public com-

ment before a “substantive regulation” is changed or

promulgated was made, such action complies with

Administrative Procedure Act (APA)’s requirements that

petitioner is a person “adversely affected or aggrieved”

by agency action, affording the right of judicial review of

agency action to such a person.

14

Where the opportunity for public comment has been

provided and the proposed regulations were printed in

the Federal Register on April 14, 1983, and by Memoran-

dum from the President of the United States, dated Feb-

ruary 27, 1985, contained in the Federal Register at Vol.

40, p. 43, Tuesday, March 5, 1985, with the specific pur-

pose to improve administration and implementation of

the Uniform Relocation Assistance and Real Property

Acquisition Policies Act of 1970, it directed the following

actions:

1. The Presidential Memorandum of September 6,

1973 on this subject is superseded.

2. The Department of Transportation, D.O.T., is des

ignated to coordinate and monitor implementation of the

Act.

3. D.O.T., jointly with the Department of Housing

and Urban Development, shall interact with the principal

executive departments and agencies affected by the Act

in developing administration policy.

4. Within 90 days of the date of this Memorandum,

all affected executive departments and agencies shall pro-

pose common regulations under the Act. Within one year

of the date of this Memorandum, such departments and

agencies shall issue common regulations under the Act.

Such regulations shall be consistent with the model pol-

icy promulgated by D.O.T., in consultation and coordina-

tion with other affected agencies, and published in final

form in the Federal Register simultaneously with this

Memorandum.

EEE

15

5. D.O.T. shall report annually to the President's

Council on Management Improvement, through the

Office of Management and Budget, on implementation of

the Act.

Ronald Reagan

The White House

Washington, February 27, 1985

The fact that a federal statute has pre-empted certain

state actions does not preclude the possibility that the

same federal statute may create a federal right for which

§ 1983 provides a remedy. Golden State Transit Corp. v. City

of Los Angeles, 110 S. Ct. 444 at 449 (1989).

In Ward v. Downtown Development Authority, 867 F.2d

1526 (11th Cir. 1986) the court found that the fact that

“the source of a property interest is state law does not

render the deprivation of the property without due pro

cess any less a basis for § 1983 liability. The inquiry

focused on whether state law provides the plaintiff with a

legitimate claim of entitlement protected by the due pro-

cess clause of the Federal Constitution. Since Appellant's

entitlement might warrant protection under § 1983, the

claim could not be dismissed, the court finding that the

existence and extent of an entitlement to benefits can be

determined only after a factual assessment of the fea-

sibility of adequate relocation.

Where it appears that the United States, through the

Federal Aviation Administration, is the owner of or is In

the process of acquiring a navigational servitude by

appropriation under state law, by purchase, by exchange,

or otherwise, and the United States is a necessary party to

such suit, the government lacked the authority to impose

16

such servitude without payment of compensation to the

owner. It is a legitimate claim of entitlement protected by

the Due Process Clause of the Federal Constitution and

the substantive federal regulations promulgated thereto.

Colorado River Conservation District v. United States, 424

U.S. 800 at 803; Kaiser Aetna v. United States, 444 U.S. 164

at 169; United States v. Causby, 328 U.S. 256; Chrysler Corp.

v. Brown, 441 U.S. 281, 294-5, 99 S. Ct. 1705, 1713-1714, 60

L.Ed.2d 208 (1979).

Where it appears that the United States in a separate

proceeding involving a separate parcel of real property,

through the United States Army Corps of Engineers, who

acted jointly and as part of a plan or conspiracy with the

Air National Guard and the Connecticut Department of

Transportation, is the owner of or is in the process of

acquiring a real property interest for the Air National

Guard, also a federal agency, by appropriation under

State law, by purchase, by exchange, or otherwise, and

the United States is a necessary party to such suit, the

‘government lacked the authority to seize such real prop-

erty without payment of just compensation to the owner.

It is a legitimate claim of entitlement protected by the

Due Process Clause of the Federal Constitution and the

substantive federal regulations promulgated thereto. Kai-

ser Aetna, supra; Chrysler Corp. v. Brown, supra.

Where federal interests are “sufficiently implicated to

warrant the protection of federal law” any rights should

derive from a federal source. Where the federal govern-

ment has the exclusive power to act, in those areas state

action is precluded. If Congress has acted, as it has, the

supremacy clause requires pre-emption of state law. To

apply state law is virtually to nullify the federal objective.

17

Moreover, the Supreme Court in Peacock v. City of

Greenwood, 1964, 384 U.S. 808, 86 S. Ct. 1800, 16 L.Ed.2d

944, clearly indicated that § 1983 was applicable when

statutory, as well as, constitutional “rights, privileges,

and immunities” were involved, the court said: “Under

42 U.S.C. § 1983 * * * the officers may be made to respond

in damages not only for violations of rights conferred by

federal equal civil rights laws, but for violations of other

federal, constitutional, and statutory rights as well.” 384

U.S. at 829-30; 86S. Ct. at 1813; 16 L.Ed.2d at 958. See also

Sheridan v. Garrison, 5th Cir. 1969, 415 F.2d 699 at 705-706.

Where appellant’s federal court action under 42

U.S.C. § 1983 charging denial of constitutional rights by a

State agency may not be dismissed for lack of subject

matter jurisdiction, unless it appears frivolous or wholly

insubstantial, the dismissal sua sponte by Judge Dorsey

and the upholding by the Second Circuit Court of

Appeals without addressing the complaint was to both

foreclose entitlements under Part 24 of 49 U.S.C. and any

private enforcement under § 1983.

The question of whether § 1343(3) applies only if

“personal” rights as opposed to “property” rights are

allegedly impaired was made clear in Lynch v. Household

Fin. Corp., 405 U.S. 538 at 542-543 wherein the court

said: * * * This court has never adopted the distinction

between personal liberties and proprietary rights as a

guide to the contours of § 1343(3) jurisdiction. Today we

expressly reject that distinction. Neither the words of

§ 1343(3) nor the legislative history of that provision

distinguishes between personal and property rights. In

fact, the Congress that enacted the predecessor of §§ 1983

and 1343(3) seems clearly to have intended to provide a

18

federal judicial forum for the redress of wrongful depri-

vations of property by persons acting under color of state

law.

The Uniform Relocation Assistance and Real Prop-

erty Acquisition Act and the Department of Transporta-

tion regulations promulgated in accordance with its

mandate make acquisition of such property for major

federal action projects a federal agency responsibility.

Section 208 of the Relocation and Real Property Acquisi-

tion Act sets out the requirements. 42 U.S.C. § 4628. In

relevant part it states: Whenever 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.

It is respectfully submitted that this important issue

of the availability of a private right of action under the

transportation laws and regulations, coupled with the

direct conflict among the circuits compels the allowance

of the writ sought herein.

2. The opinion below reflects a widespread conflict

with other jurisdictions, and this court, concerning

the due process and just compensation clauses of

the Fifth and Fourteenth Amendments.

Where the navigational servitude was imposed by a

federal agency, Federal Aviation Administration (F.A.A.)

by invading, appropriating and installing navigational

instrumentation on the surface of the property and

19

adopted takeoff and landing procedures for public, pri-

vate, and military aircraft in the navigable airspace relat-

ing to such primary runway, such activity constitutes

“major federal action” by the F.A.A., is analogous to

United States v. Causby, 328 US. 256, mandating an assess-

ment of damages.

The establishment, operation, and maintenance of the

various air navigation facilities by the F.A.A. who are

charged by law with jurisdiction over the acquisition and

the air traffic rules, see 49 U.S.C. § 1348, and any use of

the runway without F.A.A. permission would violate fed-

eral law.

Existing regulations, 14 C.F.R. § 152 (1990) and condi-

tions in the federal Airport Development Aid Program

(ADAP) grant-agreement require that construction may

not begin on any airport development project unless such

development is shown on an approved airport layout

plan. F.A.A. approval of airport layout plans is required

before airport development projects may proceed. Town of

New Windsor et al v. Ronan, 481 F.2d 450 (Second Cir.

1973). This is true even where federal assistance is not

contemplated. The reporting and the actions of the Sec-

ond Circuit Court of Appeals relative to runway lights

and a “middle-marker” in the case at bar, (472 F.2d

509-1973) was in direct conflict with Town of New Windsor,

supra, in the same year, 1973, by the same jurisdiction,

and continues to be in direct conflict with other jurisdic-

tions, particularly City of Atlanta v. United States, 531 F.

Supp. 506, 1982. The states lack the power under the

commerce clause to sanction any such form of servitude.

20

In United States v. Causby, 328 U.S. 256, a landmark

decision wherein this court characterized the low over

flights over a chicken farm as being similar to an invasion

of the surface, the court found the government liable for

damages. In City of Atlanta v. United States, supra, the

court found under stipulations of fact the administrator

of F.A.A. is responsible for the regulation of the use and

management of the navigable airspace of the United

States and the establishment, operation, and maintenance

of air navigation facilities.

The F.A.A., having made entry upon private property

in 1962 with the erection of permanent lighting stan

dards, claims a right to continue to impose the naviga

tional servitude upon the landowner through a leasehold

interest, not from the owner, but, from the sponsor of the

airport with “claimed” rulings from the courts that they

do not have to pay rent or compensation, of any nature,

for the servitude imposed upon the private landowner

The writ of certiorari should be granted due to the

Appeals Court (Second Circuit) changing courses from its

reported decision of 1973 (472 F.2d 509). The facts have

remained the same, namely, no institution of proceedings

and no payment of just compensation by either the fed

eral or state agency. The most recent unreported opinion

continues undue and severe hardship upon the land

owner with a “double whammy,” forcing the owner to

pay interest on liens and mortgages against the property

in lieu of acquisition of a satisfactory property interest -

for decades.

The challenge by the landowner that the course of

conduct of the F.A.A. effected a taking of petitioner’s

21

property — is undisputed. The permanent structures put

upon the surface of the property and the control of air

traffic resulted in the taking of a servitude. The failure to

pay just compensation or damages has also been

acknowledged

The colloquy of the Asst US. Attorney, George |

Kelley, Esq. before Hon. Jose A. Cabranes, District Judge

on February 24, 1982 in a transcript at pages 25.26 regar

ding compensation states

Page 25, Mr. Kelley “Your Honor, | would comment

only that the AADA, which I understand to be the Air

port and Airway Development Act of 1970, that is cod

ified at 49 US. Code, Section 1701, et seq. that the AADA

that Mr. Simmons refers to is a different statute than the

one which [| have briefed and that it, ir fact, does not

apply to the facts of this situation

There was no expenditure of federal funds under the

AADA to permit the taking of any of the property

involved in this case, to my knowledge. [herefore, with

out seeing the case that Mr. Simmons relies on, | would

just submit that the AADA as a separate statute concer

ing airport development does not apply to this action

Page 26. Mr. Kelley: “Your Honor, it is my under

standing that the land that’s in question nere, the parcels

of land on which there may be certain instrumentation

landing system equipment, was not obtained by funds

provided by FA.A. under the AADA That is my under

standing of the situation. As far as the rest of Mr. Sim

mons’ comments in response to my motion to dismiss

would simply stand on the memorandum as we filed it

22

INTENT

The Due Process clause imposes substantive limita-

tions on state actions, limitations that extend to inten-

tional and malicious deprivations of liberty and property

even when compensation is available under state law.

Where the Connecticut Department of Transportation

had the Connecticut Legislature enact legislation (48-17a,

b, c) to be in accord with the Uniform Act relative to

damages and where state law, preceding the Uniform Act,

required appraisals before taking private property for

public use to determine the true value of property, is still

the law today, the intent was and still continues to be to

circumvent the requirements of the prerequisite to any

negotiations, mandated by § 4633.

Where the F.A.A. has entered into leasehold interests

of petitioner’s private property with a sponsor who never

acquired any such interests from the owner, the intent

was to shelter or shield itself from lawsuits under inverse

condemnation or § 1983 actions.

The fact that the FA.A. acquired a satisfactory prop-

erty interest at the Groton-New London State Airport and

never attempted to acquire a similar interest, for similar

instrumentation at the State’s premier airport, at the same

corresponding period of time, connotes an intentional as

opposed to negligent, unequal application of 49 U.S.C.

§ 1348.

Where the Supreme Court ruled a taking in over-

flights over a chicken farm with damages to be assessed

in United States v. Causby, (328 U.S. 256) was analogous to

23

an invasion of the surface and the invasion and appro-

priation in the case at bar by F.A.A., and more recently by

the United States Army Corps of Engineers, without pay-

ing for the privilege of doing so, and thirty years later the

owner still has not been compensated, the intent of the

federal agency(s) has been deliberate as opposed to negli-

gent, that the legal duty created by 42 U.S.C. § 4633 falls

on the “head of a federal agency,” in this case, the

Administrator of F.A.A. and the Chief Engineer of the

United States Army Corps of Engineers.

The petition for a writ of certiorari should be granted

because of the importance of the issue and a conflict

concerning the scope and nature of the navigational ser-

vitude involving several federal and state agencies over

an extended period of years.

3. The decision below is incorrect.

It is unmistakable from the plain language of § 4655 -

that the states (AND THE FEDERAL AGENCIES) must

comply with the land acquisition procedures specified in

§ 4651 that will “result in” the acquisition of real prop-

erty.

The legislative history of the Act makes very clear

that it is immaterial whether . . . federal funds contribute

to the cost of the property. The controlling point is that

the real property must be acquired for a federal or federal

financially assisted program or project. H.R. Rep. No.

91-1656, 91st Cong. 2d Sess. (1970), reprinted at 1970 U.S.

Code Cong. & Admin. News 5853. The Court of Appeals

for the Fourth Circuit in City of Columbia, S.C. v. Costle,

24

710 F.2d 1009 (1983) found in relevant part those provi-

sions require the grant recipient to attempt to acquire the

real property interest through negotiations with the land-

owner, during which the grant recipient must offer the

landowner the full appraised value of the interest.

Clearly, the opinion of the Second Circuit, as

expressed, is to circumvent the public policy promul-

gated, which is error, and the reliance on Simmons v.

Wetherell, #163875, a private damage action of petitioner,

in lieu of proceedings being instituted by defending fed-

eral and state agencies — is in complete derogation of the

Due Process clause of the Fifth and Fourteenth Amend-

ments and represents conflicts with every other circuit,

including Noble v. Union River Logging R.R., 147 U.S. 165,

cited by petitioner.

Where appellant has raised federal questions (as to

the merits of which no opinion is expressed) which are

important to the public as well as to litigants, the issue of

state law versus federal law is certain. The Connecticut

courts have recognized that federal regulations are pre-

emptive and in New Haven v. East Haven, 35 Conn. Supp.

157 at p. 170 (1977) made clear the 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) (1977). Where no proceedings

under federal or state law were instituted it is error for

the Appeals Court to give credence, comity to a nonexi-

stent state court action. From 47 Am. Jur. 2d Judgments

§§ 752, 753, “It is an acknowledged principle of . . . every

court in the world, that not only the decisions, but every-

thing done under the judicial process of courts not having

jurisdiction, are ipso facto void.” Martin v. Hunters Lessee,

25

14 US. (1 Wheat) 304, 364, 4 L.Ed 97 (1816); Chrysler

Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., 180 Conn.

223, 229, 429 A2d 487 (1980); Marshall v. Clark, 170 Conn.

199, 205, 365 A2d 1202 (1976).

The relevant principles of equity, comity and federal-

ism “have little force in the absence of a pending state

proceeding.” Lake Carriers Assn. v. MacMullan, 406 U.S.

498, 509 (1972).

The critical point of departure by the Second Circuit

from the Supreme Court’s decision in Lynch v. Household

Finance Co., 405 U.S. 538, is a judgment entered without

the parties, without proceeding under a court order and

without the service of summons at all, notwithstanding

that federal law and regulations were controlling and

applicable to petitioner’s legitimate claim of entitlement

protected by the due process clause of the Federal Consti-

tution.

In Port Chester Yacht Club v. Jasillo, 614 F. Supp. 318

(D.C.N.Y.), the court noted that if, after pursuing state

remedial possibilities, the condemnee still believes that

his property has been taken without due process of law,

he may assert a § 1983 constitutional claim in Federal

Court. Port Chester, supra, is under Second Circuit juris-

diction and where Congress has assigned to the Federal!

Courts the paramount role to protect constitutional

rights, the decision of the Second Circuit to not permit

and avoid altogether the federal questions — is error.

The Second Circuit’s unreported opinion is contrary

to the reported decision of this same court in 1973 (472

F.2d 509) wherein the facts remain the same, no proceed-

ings instituted nor any compensation paid and is contrary

26

to the Supreme Court ruling in Abdo Ahmed Nagi v. United

States, 751 F.2d 826 (1985), wherein the court ruled that

the mechanical interpretation and application of the regu-

lations runs counter to the Congressional objectives of the

statutes, thus violating the spirit and intent of that por-

tion of the Uniform Act (42 U.S.C. §§ 4651-4655).

The Second Circuit’s unreported opinion with refer-

ence to and reliance upon a judgment of Referee Shapiro

who was not acting pursuant to a court order or under a

court’s authority is contrary to this court’s ruling in

Fuentes v. Shevin, 407 U.S. 67, wherein this court found

the statutory procedures violate the Fourteenth Amend-

ment’s guarantee that no state shall deprive any person

of property without due process of law.

S

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the opinion of the Second Circuit Court of

Appeals on this issue.

Respectfully submitted,

/s/ Augustus J. Simmons

Aucustus J. Simmons, Petitioner

P. O. Box #1

Windsor, CT 06095

(203) 569-6714

APPENDIX

INDEX TO APPENDIX

Page

APPENDIX - A

UNREPORTED OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE SEC-

OND CIRCUIT (FEBRUARY 23, 1993)............ la

APPENDIX - B

JUDGMENT AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT

OF CONNECTICUT (JULY 13, 1992) ............. 8a

APPENDIX - C

JUDGMENT OF THE UNITED STATES DIS-

TRICT COURT FOR THE DISTRICT OF CON-

NEA EOLUE (MAY 26, 1986)...............0.0.05: lla

APPENDIX - D

UNREPORTED OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE SEC-

OND CIRCUIT (SEPTEMBER 14, 1988)........... 13a

APPENDIX - E

JUDGMENT OF THE UNITED STATES DIS-

TRICT COURT FOR THE DISTRICT OF CON-

NECTICUT (APRIL 10, 1985) .................... l6a

APPENDIX - F

UNREPORTED OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE SEC-

OND CIRCUIT (NOVEMBER 22, 1985)........... 17a

APPENDIX - G

PETITION FOR REHEARING BEFORE THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT (FEBRUARY 10, 1984)... 19a

ii

INDEX TO APPENDIX - Continued

Page

APPENDIX - H

JUDGMENT OF THE UNITED STATES DIS-

TRICT COURT FOR THE DISTRICT OF CON-

Wee ewe CRRMouer £6, TSB)... eee eee . 21a

APPENDIX - I

UNREPORTED OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE SEC-

OND CIRCUIT (DECEMBER 20, 1983) ........... 23a

APPENDIX - J

DECISION OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF CONNECTI-

CUT FOR PRELIMINARY INJUNCTION

Sm URINN Bl Rg or ele ag ne a nes ele Wrekin rae eas 26a

APPENDIX - K

RULING OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF CONNECTI-

Ase CT ONUES 755 NOME oo 6 OE ie se a aa ee 27a

APPENDIX - L

UNREPORTED OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE SEC-

OMe? Cm) GUNG 9, 1983). o.oo eos ds Be

APPENDIX - M

RULING OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF CONNECTI-

0g Gla og. | Bie Ta. 3 Ra ate Rene aa er rea 36a

ili

INDEX TO APPENDIX - Continued

Page

APPENDIX - N

REPORTED DECISION IN PART AND

REMAND IN PART BY THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIR-

CUIT - (472F2d509) (ANUARY ae 2s) See 46a

APPENDIX - O

PRESIDENTIAL MEMORANDUM TO

IMPROVE ADMINISTRATION AND IMPLE-

MENTATION OF THE UNIFORM RELOCA-

TION ASSISTANCE AND REAL PROPERTY

ACQUISITION POLICIES ACT OF 1970 (FEB-

RUARY 27, 1985) 55a

APPENDIX - P

EXECUTED LEASE BETWEEN STATE OF CON-

NECTICUT, DEPARTMENT OF TRANSPORTA-

TION, AND UNITED STATES OF AMERICA,

BY FEDERAL AVIATION ADMINISTRATION

(JUNE-1974) 57a

la

APPENDIX A

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 that the United

States Courthouse in the City of New York, on the 23rd

day of February, one thousand nine hundred and ninety

three.

Present:

Honorable John M. Walker, Jr.,

Honorable Joseph M. McLaughlin,

Circuit Judges

Honorable Charles L. Brieant,

Chief District Judge*

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant

ORDER

No. 92-6208

(Filed Febr.

23, 1993)

EMIL H. FRANKEL., Commissioner of

Transportation, BARRY L. HARRIS,

Administrator, Federal Aviation

Administrator, HENRY J. HATCH,

General Chief Engineer US. Army Corps.

of Engineers, JOHN J. BARTIZEK, District

* Chief Judge Charles L. Brieant, United States District

Court for the Southern District of New York, sitting by designa-

tion.

2a

Clerk, Metropolitan District Commission.,

UNITED STATES OF AMERICA, STATE

OF CONNECTICUT, JOHN J. COLLINS,

Lt. Col., Administrator, FAA,

Defendant-Appellees.

Appeal from the United States District Court for the

District of Connecticut.

This cause came to heard [sic] on the transcript of

record from the United States District Court for the Dis-

trict of Connecticut (Dorsey, |.) and was argued by appel-

lant, while counsel for appellees relied on their

submissions.

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 appel

lant is assessed double court costs.

Augustus J. Simmons, pro se, appeals from an order

of the United States district Court for the District of

Connecticut (Dorsey, /].), dismissing his complaint sua

sponte and ordering Simmons to pay $2000 in fines.

On June 5, 1992, Simmons brought an action, pur-

suant to 42 U.S.C. § 1983, alleging various constitutional

violations arising from Connecticut’s acquisition of land

owned by Simmons. the district court concluded that

Simmons was attempting to reassert federal constitu-

tional and statutory claims that were fully adjudicated in

prior proceedings in violation of an injunction issued

against him, and dismissed his complaint sua sponte on

July 14, 1992. The court also ordered Simmons to pay

|

3a

fines in the amount of $1000 to the State of Connecticut

and $1000 to the United States.

The long history of this litigation began in 1964,

when the State of Connecticut attempted to condemn

property in East Granby, Connecticut, then owned by the

Sinmimons’s family, to expand what is now the Bradley

International airport. Simmons filed various state and

federal actions, later consolidated in Connecticut Supe-

rior Court, alleging that the State illegally occupied por-

tions of his land and challenging the State’s attempt to

gain title to the Property. On January 4, 1978, a judgment

was entered, pursuant to a Stipulation between the par

ties, providing that the State would take title to certain

parcels of Simmons’ land, in return for which the State

would pay Simmons $385,000. The Stipulation further

Provided that the “judgmenet entered in this matter

[shall] be a full and final settlement between the parties

of any and all claims contained in the above consolidated

cases.” However, six months later Simmons moved to

open the judgment Claiming ineffective assistance of

counsel. This request was denied and the denial was

affirmed on appeal. Simmons v. Wetherall, 180 Conn. 587

(1980) (per curiam).

Not dissuaded by the final judgment granting title of

the disputed real property to the State of Connecticut.

Simmons continued to pursue the issue. Simmons filed

seven state and five federal Proceedings after the 1978

stipulation was certified. Then in a 1988 order, Judge

Cabranes enjoined Simmons from filing “any state or

federal claims in any federal court against any of the

defendants named in the complaint in this lawsuit if such

lawsuit related to his alleged ownership” of the disputed

4a

real property. Affirming judge Cabranes’s order in all

respects, this Court warned that any violation of that

injunction could be punished as contempt of court and

imposed double court costs against Simmons. Simmons v.

Burns, No. 88-6093 (2d Cir. Oct. 5, 1988) (unpublished

summary order).

Despite this Court’s attempt to stem the flow of

vexatious litigation by Simmons, we are confronted once

again with an attempt by him to litigate a matter barred

by res judicata. Notwithstanding Simmons’s attempt to

circumvent the injunction by changing the named defen-

dants, the instant complaint clearly relates to Simmons’s

ownership of the East Granby land. Thus, Simmons has

violated Judge Cabranes’s injunction. Furthermore, even

without the injunction, Judge Dorsey’s dismissal of the

complaint sua sponte would be affirmed based on res

judicata grounds.

Both the state and federal defendants have asked the

district court to impose sanctions on Simmons in order to

deter him from continuing his attempts to reopen this

litigation. Pro se litigants are subject to sanctions under

Fed. R. Civ. P. 11. See Maduakolam v. Columbia Univ, 866

F.2d 53, 56 (2d Cir. 1989). Furthermore, this Court has not

hesitated to impose sanctions on pro se litigants when

they become particularly vexatious. See Sassower v. Field,

973 F.2d 75 (2d Cir. 1992) (upholding sanction of $93,350

against vexatious plaintiff).

The district court’s order dismissing sua sponte Sim-

mons’s complaint and imposing $2,000 in fines is hereby

5a

AFFIRMED. Furthermore, we hereby assess double court

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

/s/ John Walker

Hon. John M. Walker, Jr.,

USA...)

/s/ Joseph M. McLaughlin

Hon. Joseph M. McLaughlin,

U.2.C.J.

/s/ Charles Brieant

Hon. Charles L. Brieant,

U.S.D.]J.

N.B. THIS SUMMARY ORDER

WILL NOT BE PUBLISHED IN THE

FEDERAL REPORTER AND

SHOULD NOT BE CITED OR OTH-

ERWISE RELIED UPON IN UNRE-

LATED CASES BEFORE THIS OR

ANY OTHER COURT.

6a

MANDATE

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 23rd day of

February, one thousand, nine hundred and ninety three.

Present:

Honorable John M. Walker, Jr.,

Honorable Joseph M. McLaughlin,

Circuit Judges,

Honorable Charles L. Brieant,

Chief District Judge.*

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant,

ORDER

No. 92-6208

(Filed Febr.

23, 1993)

EMIL H. FRANKEL, Commissioner of

Transportation, BARRY L. HARRIS,

Administrator, Federal Aviation

Administrator, HENRY J. HATCH,

General, Chief Engineer U.S. Army

Corps. of Engineers, JOHN J. BARTIZEK,

District Clerk, Metropolitan District

Commission., UNITED STATES OF

*Chief Judge Charles L. Brieant, United States District Court for

the Southern District of New York, sitting by designation.

7a

AMERICA, STATE OF CONNECTICUT,

JOHN J. COLLINS, Lt. oL.,

Administrator, FAA,

Defendant-Appellees.

Appeal from the United States District Court for the

District of Connecticut.

This cause came to heard on the transcript of record

from

Dismissed sua sponte.

8a

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS”) __.2:92 CV _ 00395 PCD

VS.

EMIL H. FRANEL, et al. _ )

JUDGMENT

(Filed July 13, 1992)

The action having come on for consideration of the

plaintiff’s complaint before the Honorable Peter C. Dor

sey, United States District Judge, and

The Court having considered the full record of the

case including applicable principles of law, and the Court

having filed its Order, dismissing the complaint as viola

tive of the 1988 injunction,

It is accordingly ORDERED, ADJUDGED and

DECREED that judgment be and is hereby entered dis

missing the complaint.

Dated at Hartford, Connecticut this 13th day of July

1992.

KEVIN F. ROWE, Clerk

By /s/ Dennis P. lavarone

Dennis P. lavarone

Deputy in Charge

9a

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS Docker No:

| 2:92¢v00395 (PCD)

-VSs- ;

EMIL H. FRANEL, et al. _ Filed July 8, 1992)

ORDER

The claims asserted in Mr. Simmons’ most recent

complaint pertain to his claim of title and interest to or in

three parcels of land n [sic] East Grandby, Connecticut,

adjacent to Bradley International Airport. Although the

defendants are changed - for example, Emil Frankel only

recently became Connecticut's Transportation Commis-

sioner — the heart of the controversy remains the same

This case thus asserts the same rights Mr. Simmons has

repeatedly asserted in various lawsuits filed during the

past decade, despite the Connecticut Supreme Court's

final determination that he no longer retained any rights

to the land in question, Simmons v. Wetherall, 180 Conn

587 (1980), and despite an injunction issued in 1988 pro-

hibiting him from filing such actions without first obtain-

ing permission from this court. Simmons v. Burns, Civil

No. H-87-732 (JAC) (D. Conn. Mar. 15, 1988), Ruling on

Pending Motions and Order. Mr. Simmons fails to accept

the fact that he may not attempt, over and over again, to

retry his claims to the land, even in the face of the Court

of Appeals’ warning that such repeated attempts would

result in sanctions. Simmons v. United States, Docket No

85-6087 (2d Cir. Nov. 22, 1985).

j |

10a

The time has come to put an end to Mr. Simmons’

vexatious, annoying and unjustified attempts to re-liti-

gate claims which have been finally decided for over a

decade. Thus, it is hereby

ORDERED that the complaint be dismissed as viola-

tive of the 1988 injunction; and it is further

ORDERED that Mr. Simmons may file, on or before

July 24, 1992, any pleading showing why he should not

be ordered to pay the sum of $1000 to the State of Con-

necticut, and an additional $1000 to the United States, as

sanctions for the filing of this frivolous lawsuit.

Dated at Hartford, Connecticut, this 8th day of July,

1992

/s/ Peter C. Dorsey

Peter C. Dorsey

United States District Judge

lla

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS

v.

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.

ROISMAN, 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. ROBERT 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 Pend-

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

Honorable 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.Civ.P.,

12a

It is ORDERED, ADJUDGED and DECREED that

judgment be and is hereby entered in favor of all remain-

ing defendants (summary judgment having been entered

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

FAA, Rogin, Tashjian and Hirtle on March 16, 1988) dis-

missing the complaint.

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

May, 1988.

Kevin F. Rowe

Clerk, United States District Court

Deputy in Charge

13a

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 14th 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,

V.

J. WILLIAM BURNS, Et 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 Dis-

trict of Connecticut, and was argued by appellant pro se

and by counsel for appellees.

* Hon Con. G. Cholakis, District Judge, United States Dis-

trict Court for the Northern District of New York, sitting by

designation.

l4a

ON CONSIDERATION WHEREOPF, it is now hereby

ordered, adjudged and decreed that the order of said

district court be and it hereby is AFFIRMED, and appel-

lant is assessed double court costs.

1. 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 imposition 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 ail 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 LuMmsarp,

J. Danie. MAHONEY,

Circuit Judges

Con. G. CHoLakis,

District Judge

15a

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.

16a

APPENDIX E

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS

V.

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

DECREED that judgment be and is hereby entered dis-

missing the plaintiff's complaint.

Dated at Hartford, Connecticut, this 10th day of April

1985.

Kevin F. Rowe, Clerk

By: Dennis P. TAVARONI

Deputy-in-Charge

17a

APPENDIX F

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, ET 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 Dis-

trict 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.

18a

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. Appel-

lant 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 sanc-

tions in the future should he seek once again to relitigate

these same matters.

WILFRED FEINBERG,

Chief Judge

Wa ttTeR R. MANsPFEeLp,

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.

19a

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated term of the United States 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 eight-

four.

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant,

¥.

ARTHUR B. POWERS,

Commissioner of Department of Transportation,

Defendant-Appellee.

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant,

V.

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 and CONNECTICUT DEPARTMENT OF

TRANSPORTATION,

Defendants-Appellees.

No. 83-6257

A petition for a rehearing having been filed herein by

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

_

20a

Upon consideration thereof, it is

Ordered that said petition be and it hereby is

DENIED.

A. Danie. Fusaro, Clerk

by Francis X. GINDHART,

Chief Deputy Clerk

!

21a

APPENDIX H

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS,

V.

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

V.

ARTHUR B. POWERS, COMMISSIONER,

DEPARTMENT OF TRANSPORTATION

No. H81-778

and No. 83-225

JUDGMENT

These consolidated actions having come on for con- —

sideration 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

DECREED that judgment be and is hereby entered in

22a

favor of the Defendant dismissing the Plaintiff's com-

plaints.

Dated at Hartford, Connecticut, this 24th day of

August, 1983.

SyivesteR A. MARKOWSKI,

Clerk, United States District Court

Joun K. Hinprrson, Jr.

Deputy in Charge

ee

23a

APPENDIX I

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 20th day of

December, one thousand nine hundred and eighty-three.

Present:

HONORABLE WILFRED FEINBERG

Chief Judge

HONORABLE HENRY J. FRIENDLY

HONORABLE JAMES L. OAKES

Circuit Judges

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant,

V.

ARTHUR B. POWERS, etc.,

Defendant-Appellee.

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant

V.

UNITED STATES OF AMERICA, #17 AL..,

Defendant-Appellee

No. 83-6257

Appeal from the United States District Court for the

District of Connecticut.

24a

This cause came on to be heard on the transcript of

record from the United States District Court for the Dis-

trict of Connecticut, and was argued by appellant pro se

and by counsel for appellees.

ON CONSIDERATION WHEREOPF, it is now hereby

ordered, adjudged and decreed as follows:

1. 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 judg-

ment as to the federal defendants, or await the deter-

mination 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 Con-

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

Judge Cabranes dismissed the complaints in the consoli-

dated actions. Simmons now appeals from that dismissal.

We agree with Judge Cabranes that the doctrine of res

25a

judicata bars the reassertion of these claims, already liti-

gated in state courts. Simmons v. Wetherall, 430 A.2d

1296 (Conn. 1980).

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.

26a

APPENDIX J

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS,

Plaintiff.

V.

J. WILLIAMS 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 FOR “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

27a

APPENDIX K

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS

V.

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

dispute between plaintiff and various defendants con-

cerning 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 Amer-

ica, the Federal Aviation Administration, and J. Lynn

Helms as Administrator of the Federal Aviation Adminis-

tration) 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 concludes that “it appears

beyond doubt that the plaintiff can prove no set of facts

in support of his claim [against these defen-*dants] which

28a

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

45-46 (1957), the motion to dismiss must be granted. -

I.

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 Com-

plaint, 7 30; that “the United States government and the

FAA have ousted the Plaintiff from possession of this

land since 1964,” 4 33; and that “the United States and

the FAA have never compensated the Plaintiff for their

use of Parcels A and C,” 4 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

29a

Impala Sedan, 457 F.2d 1353 (Sth 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 flood

occurred in 1937, more extensive flooding took place in

1938, and the plaintiff brought suit in 1943; a six-year

statute of limitations 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, ambiguous: before the first flood occurred, there

was no indication that a taking had occurred or would

occur; and before the extensive flood of 1938, it was still

uncertain that the Government’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 inunda-

tion 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 Govern-

ment’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.

30a

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 two parties, is not the same thing

as a change in the law. Thus, One 1961 Red Chevrolei -

which, at any rate, represents 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 dis-

missed.

Il.

In count three of the Third Amended Complaint,

plaintiff alleges numerous violations of unspecified “Fed-

eral law,” 7] °40-46, 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 deal-

ing with the State of Connecticut, 4] 47-48, 52-54.

The Government contends that a private right of

action will not lie against it to compel fulfillment of such

obligations. While this question has not yet been pre-

sented to the Court of Appeals for the Second Circuit,

3la

those courts of appeals that have considered this issue

have unanimously concluded that the “plain language,”

Fountain v. Metropolitan Atlanta Rapid Transit Authority,

678 F.2d 1038, 1045 n. 13 (11th Cir. 1982), of 42 USC.

§ 4602(a) precludes such a right. See Fountain v. Metro-

politan 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 Housing and Urban Development, 345 F.

Supp. 654 (E.D. Pa. 1972); aff'd 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 governments is clearly without

relevance here, where plaintiff 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.

Ill.

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

OE

32a

appear hereafter that plaintiff means count five to run

against the federal defendants.

IV.

In summary, the federal defendants’ motion to dis-

miss 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 Feb-

ruary,’” 1983.

Jose A. CABRANES

United States District Judge

’

33a

APPENDIX L

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 thousand 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, Et 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 Dis-

trict 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

————o€——

34a

judgment of said District Court be and it hereby is dis-

missed 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 Connecti-

cut 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 Febru-

ary 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 limitations 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 to do so in his

opinion of February 7. This court is therefore without

jurisdiction to hear this appeal, which is dismissed with-

out prejudice. Appellant may seek the entry of final judg-

ment 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

35a

development 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 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 preju-

dice to the district court so that when a final judgment is

entered, the entire matter may be addressed by this court

at the same time.

WitrreD FEINBERG, Chief Judge

Henry J. FRIENDLY

Rave K. Winter, Circuit Judges.

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

ion 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.

36a

APPENDIX M

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS

v.

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 for 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 property, 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 defen-

dants caused him to be illegally arrested, prosecuted and

convicted in the state court in violation of his federal civil

rights, for cutting through a fence which the defendants

1 The fifth amendment to the United States Constitution

provides in pertinent part:

. nor shall private property be taken for public

use, without just compensation.”

37a

had erected surrounding his property. The defendants

have moved to dismiss the complaint 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.

I.

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 proceed-

ings 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 establish-

ment (of an airport) or for the expansion or

improvement of an airport when, in the opinion

of the (state aeronautics) commission, 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

Sou.

38a

obtained an injunction against further construction on

March 3, 1965, on the ground of the pendency of condem-

nation proceedings.

Although the defendants, 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 Con-

necticut Supreme Court, without considering any other

assignments or error, ordered a new trial solely on the

ground that error was committed in an evidentiary rul-

ing. 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 aborted attempts, on Janu-

ary 9, 1968, the defendants again began condemnation

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

the state’s general condemnation statute. The plaintiff

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

statute was to vest title to the land in the State imme-

diately upon the filing of the statement of condemnation

in the Superior Court... .” In March 1971 the Connecti-

cut 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 defendants had begun the

action under § 48-12 but before the Connecticut Supreme

39a

Court had declared this proceeding invalid, “the defen-

dants caused the plaintiff to be arrested and charged with

a criminal offense for cutting a wire fence erected by the

defendants 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."

The plaintiff also alleges that in April 1968 the defen-

dants caused agents or employees of the Department of

Aeronautics to remove certain cinder blocks from his

property, which they have refused to return to the plain-

tiff 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 AUGUSTUS

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 interests shall be

included in any judgment against the state.

Approved May 28, 1969.” Special Act No. 170.

————————————

40a

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 Connecti-

cut, in the Superior Court for Hartford County, Docket

No. 163, 875, seeking 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.

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 ina

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 defen-

dants 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.

ee eee

4la

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).

III.

WRONGFUL TAKING

The plaintiff’s contention that his property was taken

without just compensation alleges the deprivation of a

constitutional right, and thus is a basis for federal juris-

diction under 28 U.S.C. § 1343(3). Lynch v. Household Fin.

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

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.? 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).

2 The court assumes that the protection provided by the

fifth amendment against the taking of property without just

compensation 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. .. . oe

See Haczela v. City of Bridgeport, 299 F. Supp. 712 (D. Conn. 1969);

cf. Foster v. Herley, 330 F.2d 87 (6th Cir. 1964).

SE ——————tle

42a

Not every interference with the use of property con-

stitutes a taking within the meaning of the fifth amend-

ment:

“Where the line of demarcation between acts

which amount to the taking of an interest in

property short of a transfer of title, as distin-

guished from acts resulting only in tortious

interference with a plaintiff’s rights in his prop-

erty, 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, 47 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 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 interfer-

ence 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.” Jim-

mie’s, Inc. v. West Haven, Civ. No. 13,503 (D.

43a

Conn. Mar. 16, 1970), aff'd. 436 F.2d 1339 (2d Cir.

1971).

The plaintiff in his prayer for relief seeks an injunc-

tion against further attempts by the defendants to take

his property “until such time as appropriate constitu-

tional 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 plain-

tiff for the right to maintain said lights... . ”

The plaintiff's 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 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 main-

tain 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

44a

obvious that throughout this vigorously contested litiga-

tion in the state courts the defendants have continuously,

although seemingly ineptly, made repeated attempts to

pay the plaintiff “adequate compensation.” 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 [sic]

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 con-

demnation 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 concrete blocks, which the plain-

tiff alleges were removed from his land by agents of the

defendants and taken to airport property, is more prop-

erly 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.

45a

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, includ-

ing the abutting land owned by the State of

Connecticut, and thus the plaintiff 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. JoserH BLUMENFELD

Chief Judge

46a

APPENDIX N

SIMMONS v. WETHERELL

Cite as 472 F.2d 509 (1973)

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant,

Vv.

HORACE B. WETHERELL, as the Director of Aeronau-

tics, 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

without due compensation. The United States District

Court for the District of Connecticut, M. Joseph Blumen-

feld, 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 land-

owner's efforts at defeating condemnation in state courts,

the attempts at condemnation constituted, at most, tor-

tious interference with landowner’s property rights and

landowner could not maintain a civil rights action arising

from the condemnation proceedings, but that land-

owner’s allegations that state had fenced off and put

47a

airport runway lights on portion of property owned by

landowner without paying him due compensation or

instituting court proceedings stated cause of action for

deprivation of landowner’s 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 land-

owner’s property constituted, at most, tortious interfer-

ence 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 Constitution, where state officials

had proceeded with reasonable speed in their attempts to

condemn land and any delay arose largely from land-

owner’s efforts at defeating the condemnation 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 ineptitude in condemning landowner’s prop-

erty 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.

48a

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.

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 without paying him due compensation or instituting

court proceedings were sufficient to state civil rights

claim for deprivation of landowner’s right to enjoy the

use of his land; however, where landowner’s claim

against state authorities revolved around boundary dis-

pute forming basis of landowner’s 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 administration. 42 U.S.C.A.

§ 1983.

Stephen W. Silverman, Springfield, Mass., for appel-

lant. a

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.

49a

Before LUMBARD, SMITH and MANSFIELD, Circuit

Judges.

SMITH, Circuit Judge:

This case represents the federal stage of a long-stand-

ing and acrimonious court battle between the Simmons

family of East Granby, Connectcut [sic] and state officials

over the latters’ attempts to condemn some land

adjoining Bradley International Airport. Augustus J. Sim-

mons now appeals from a judgment of the United States

District Court for the District of Connecticut, M. Joseph

Blumenfeld, Chief. Judge, dismissing 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 Blumenfeld’s decision; however, as to one

aspect of this suit, we remand, for the reasons outlined

below.

The battle here began when the state aeronautics

commission 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 (appel-

lant’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 sim-

ilarly situated had not been taken. State v. Simmons, 153

Conn. 351, 216 A.2d 632 (1966). Since this evidence was

1 § 15-79 was repealed by Public Act 768, § 263 (1969).

50a

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 attempt-

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

nation statute, which provided for procedures different

from § 15-79 in cases where compensation could not be

agreed upon by the parties. The Simmons family pre-

vailed 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 runway 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

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

scrutiny of the Connecticut courts. See Simmons v. McKone, 158

Conn. 71, 255 a.2d 822 (1969).

i ere

5la

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 doc-

trine 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 deci-

sion in Simmons v. Parizek, supra, a Special Act was

passed by the Connecticut General Assembly, allowing

Augustus Simmons to sue the state for damages over

“loss of use of land,” arising out of the bumbling con-

demnation proceedings. On January 5, 1970, Simmons

brought such a suit, Docket No. 163875, Hartford Supe-

rior 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. Nevertheless, perhaps for a change of

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

1971, alleging that his property was taken without due

compensation, and seeking damages. Since the complaint

alleged deprivation of property rights through the state

action, jurisdiction 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 ques-

tion presented by this suit is whether the attempts at

condemnation amount to an unconstitutional taking, or

52a

whether they simply constitute at most tortious interfer-

ence 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 proposi-

tion 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 distin-

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

the state officials had begun condemnation proceedings

and then let them pend, or had announced redevelop-

ment 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 rea-

sonable speed, if not efficiency, every time they sought to

condemn the land. Each effort at condemnation was

accompanied 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’ 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

53a

asserting his rights, neither should state officials be

forced to await the natural delays of litigation 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

apparent 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 immunity 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 1.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

runway 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

USS. 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, S. Ct. 1113.

54a

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 district court should

stay its hand here pending the resolution 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. Jan, J.)

We have considered appeliant’s other claims includ-

ing 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 dispo-

sition not inconsistent with this opinion.

Federal Register

Vol. 50. No. 43

Tuesday,

March 5, 1985

55a

APPENDIX O

Presidential Documents

Title 3 -

The President

Memorandum of February 27, 1985

Memorandum for the Heads of

Executive Departments and Agen-

cies.

The purpose of this Memorandum is

to improve administration and

implementation of the Uniform

Relocation Assistance and Real

Property Acquisition Policies Act of

1970.

Specifically, | hereby direct the fol-

lowing actions:

1. The President Memoran-

dum of September 6, 1973 on this

subject is superseded.

2. As with other Administra-

tion management improvement ini-

tiatives, a lead agency, the

Department of Transportation

(DOT), is designated to coordinate

and monitor implementation of the

Act, and consult periodically with

State and local governments and

other organizations and interest

groups affected by administration of

the Act.

56a

3. DOT, jointly with the

Department of Housing and Urban

Development, shall interact with the

principal executive departments

and agencies affected by the Act in

developing Administration policy.

4. Within 90 days of the date

of this Memorandum, all affected

executive departments and agencies

shall propose common regulations

under the Act. Within one year of

the date of this Memorandum, such

departments and agencies shall

issue common regulations under the

Act. Such regulations shall be con-

sistent with the model policy pro-

mulgated by DOT, in consultation

and coordination with other

affected agencies, and published in

final form in the Federal Register

simultaneously with this Memoran-

dum.

5. DOT shall report annually

to the President’s Council on Man-

agement Improvement, through the

Office of Management and Budget,

on implementation of the Act.

/s/ Ronald Reagan

THE WHITE HOUSE,

Washington, February 27, 1985

[FR Doc. 85-5298

Filed 2-28-85; 4:14 pm]

Billing code 3195-01-M

57a

APPENDIX P

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

NEW ENGLAND REGION

12 NEW ENGLAND EXECUTIVE PARK

BURLINGTON, MA 01803

Lease No.: DOT-FA74NE-0369

BRADLEY INTERNATIONAL

ILS-ALS R/W6

LEASE

between

STATE OF CONNECTICUT

DEPARTMENT OF TRANSPORTATION

and

THe UNitep States OF AMERICA

This LEASE, made and entered into this first day of

June in the year one thousand nine hundred and seventy

four by and between the State of Connecticut, Depart-

ment of Transportation whose address is 24 Wolcott Hill,

Wethersfield, Connecticut, 06109 for itself and its heirs,

executors, administrators, successors, and assigns, here-

inafter called the lessor, and the UNitED States OF AMERICA,

hereinafter called the Government:

WitnessetH: The parties hereto for the consideration

hereinafter mentioned covenant and agree as follows:

1. For the term beginning June 1, 1974 and ending

June 30, 1974, the lessor hereby leases to the Government

the following described property, hereinafter called the

premises, viz:

58a

As contained in Exhibit I attached hereto and made a

part hereof.

* * *.

9. The Lessor grants to the Government the right to

utilize any existing power lines, control lines, conduits, or

other facilities of the Lessor which are adaptable to use in

connection with the purpose of this covenant.

10. The 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.

11. The right of ingress and egress and the right of way

herein granted shall insure to the benefits of the Govern-

ment and its duly authorized agents, representative, con-

tractors and employees.

12. The Lessor agrees not to erect or to allow to be

erected on the property leased hereby or on adjacent

property of the Lessor, any structure or obstruction of

whatsoever kind of nature as will interfere with the

proper operation of the facilities to be installed by the

Government under the terms of this Lease unless consent

thereto shall first be secured from the Government in

writing. Further, in order to insure the continuing proper

operation of the ALS Facility, the Lessor shall prevent the

erection of any structure, or the natural growth of trees,

brush that will cause that structure or natural gre vth to:

(a) protrude an area hereinafter referred to as

the light plane. For obstruction clearance

purposes this light plane is defined as rect-

angular in shape, 400 feet wide and sym-

metrically located about the ALS centerline;

59a

it shall start at the landing threshold and

extend 200 feet beyond the approach end of

the system.

(b) prevent a clear line of sight to all lights of

the system from any point on a surface,

one-half degree below the glide path and

extending 250 feet each side of the cen-

terline, up to 1600 feet in advance of the

outermost light in the system.

13. In order to insure the continuing proper operation of

the Instrument Landing System(s), the Lessor agrees that

certain critical and no-parking areas, which are shown on

the attached Drawing No. 1-A-3076, shall be established

in the vicinity of the localizer and glide slope facilities.

Where the critical areas lie within the bounds of the

Airport, the Lessor agrees not to erect or allow to be

erected any structure of any kind or nature nor to per-

form or allow to be performed any excavating, grading or

planting operations within these areas, without the prior

concurrence of the government. Where the critical areas

lie outside the bounds of the Airport, the Lessor agrees to

extend every effort to negotiate agreements with the

property owners involved covering these restrictions.

In the event of natural erosion, the Lessor agrees to

perform corrective grading, planting and excavation

within the critical area. Such work shall be accomplished

during a period which is mutually agreeable to both

Lessor and Lessee.

Where the critical and no-parking areas lie within the

bounds of the Airport, the Lessor agrees not to permit the

presence of parked aircraft, vehicles or equipment within

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the critical and no-parking areas, or of free moving air-

craft or vehicles within the critical areas which are not

under the control of tower personnel when the facilities

are in operation. The Lessor agrees to provide and main-

tain no-parking signs within these areas, when required.

Where the critical and no-parking areas lie outside the

bounds of the Airport, the Lessor agrees to extend every

effort to negotiate agreements with the property owners

involved granting the Lessor the right to establish and

maintain no-parking signs on their properties within

these areas.

The Lessor further agrees to provide and maintain mark-

ings as required, on all paved areas to delineate the limits

of the critical area.

14. The Government waives the requirement for radio

control of traffic in the vicinity of Runway 6 Localizer on

the North Perimeter Road.

15. For and in consideration of the benefit to the Bradley

International Airport and the general public using same,

the Lessor agrees to and grants to the government al!

terms and conditions stated herein at no cost.

16. This lease will supersede License DOT-FA73NE-0308

on commissioning of the CAT-II ILS system.

17. The Lessor further agrees that in the event that

relocation or modification of the FAA’s facilities associ-

ated with air navigation or components thereof herein-

before described is made necessary by airport improve-

ments or changes made or caused to be made by the

airport owner (the term “airport owner” used herein

refers to the political subdivision or other competent

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authority responsible for the airport operation and capital

improvements), the costs of such relocation or modifica-

tion shall be chargeable to the Lessor; that the Govern-

ment shall have the exclusive right to determine how the

relocation or modification project shall be accomplished

including, but not limited to, the engineering, site selec-

tion, procurement of equipment; construction, installa-

tion, testing, flight inspection and recommissioning of the

facility; that upon submission by the Government of an

estimate of the relocation or modification costs, the Les-

sor shall transfer to the Government the funds required

for the relocation or modification; that in the event the

actual costs of relocation or modification exceed the esti-

mate submitted by the Government the Lessor shall pay

only the actual costs; that the Government shall have the

exclusive right to determine when a relocation or mod-

ification of a facility or component thereof has been made

necessary by airport improvements or changes made or

caused to be made by the airport owner, and that this

decision shall be final. It is agreed by and between the

Lessor and the Government that in the event the actual

costs of relocation or modification of a facility or compo-

nent thereof is less that the estimate submitted by the

Government the Lessor shall pay only the actual costs

18. The following changes were made to this Lease prior

to execution:

a. Deletion of certain wording in paragraph 2.

b. Deletion of paragraph 3 in its entirety.

c. Addition of certain wording in paragraph 7.

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IN WITNESS WHEREOF, the parties hereto have

hereunto subscribed their names as of the date indicated.

WITNESSES STATE OF CONNECTICUT

jsf Sandee 1. Barone DEPARTMENT OF

: TRANSPORTATION

/s/ Madeline P. Makiaria

By /s/ Joseph B. Burns

/s/ George J. Bates Seal)

/s/ Susan R. Pitt Joseph B. Burns

Commissioner

Date: June 11, 1974

UNITED STATE [sic]

OF AMERICA

DEPARTMENT OF

TRANSPORTATION

By /s/ Roland O. Bisson Jr

(Seal)

Date: May 24, 1974

This Agreement is made with the approval of the

undersigned, under the provisions of Section 13b-42(b) of

the General Statutes of Connecticut, as revised.

/s/ C. Pierre Phillips /s/ Gerald J. Nelson

Deputy Attorney Deputy Commissioner

General of Finance and

State of Connecticut Control

Date: JUL 26 1974 State of Connecticut

Date: 6/25/74