Petition for Writ of Certiorari — Simmons v. Hinson

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FILED

. 941651 APR 7 - 1995

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In The

Supreme Court of the United States

October Term, 1994

AUGUSTUS J. SIMMONS,

Petitioner,

DAVID R. HINSON, 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 pro se

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 arbitrary, fraudulent, and unconstitu-

tional seizure of airport federal project real property,

without any court proceedings, without necessary par-

ties, without payment of compensation, without compli-

ance with mandatory federal regulations 42 U.S.C.

§§ 4628, 4655, is in violation of the Fifth and Fourteenth

Amendments of the United States Constitution, and, inas-

much as no action has been commenced or is pending in

any state or federal court in respect of this matter, it

follows that the jurisdiction of the court has never been

invoked and that the extrajudicial seizure entered on the

public Land Records of the Town of East Granby, Con-

necticut on June 2, and June 5, 1978, ic and always was,

wholly void.

LISTING OF PARTIES

Petitioner:

Augustus J. Simmons, Landowner

Respondents:

David R. Hinson, Administrator Federal Avia-

tion Administration

Lt. Gen. Henry J. Hatch, Chief Engineer United

States Army Corps of Engineers

J. William Burns, Commissioner (replacing Emil

H. Frankel) Connecticut Department of Trans-

portation

Janet P. Reno, Attorney General United States

Department of Justice

Col. John J. Collins, Administrator Connecticut

Air National Guard

Drew S. Days, Solicitor General United States

Department of Justice

Richard Blumenthal, Attorney General State of

Connecticut

John J. Bartizek, District Clerk Metropolitan Dis-

trict Commission

Edward J. Rogin, Sr., Esq. CityPlace, Hartford,

Robert Hirtle, Jr. Esq. CityPlace, Hartford, CT

William A. Collier, Esq. United States Attorney’s

Office (Hartford, CT)

Bourke G. Spellacy, Esq. (Metropolitan District

Commission) Hartford, CT

There is no parent or subsidiary company to be listed.

Se a ne

TABLE OF CONTENTS

Page

OF sg ee |). > re i

LISTING OF PARTIES AND STATEMENT UNDER

PEPE ES GAPEIE POWERS BFE noc ccs sce ccs cscees ii

pp 8 Ee Beas: os > iii

SU PERSO ois onc oeccccsvankenscusens Vv

ee cack bods eect seve ces beeecunds 1

STATEMENT OF JURISDICTION.......... Hokage, 2

STATUTE AND CONSTITUTIONAL PROVISIONS

is Cnikwk aks wae k ed bx eas ado s0 44s 2

ey Re Be eat Se 5

REASONS FOR GRANTING THE WRIT ........... 15

1. The opinion below reflects a widespread conflict

with other jurisdictions, the United States Consti-

tution, and this Court in the arbitrary and fraud-

ulent confiscation of federal project airport

property without notice, without jurisdiction,

and without statutory authority................ 15

2. The opinion below reflects a significant and con-

tinuing problem with the unconstitutional back-

dating the confiscation to November 12, 1964 to

avoid compliance with congressionally mandated

federal regulations and procedures and conceal-

ment of fraudulent leases entered into between

the federal agency, F.A.A., and the Connecticut

Department of Transportation .................. 17

TABLE OF CONTENTS - Continued

Page

3. The petition for the annulment of the extrajudi-

cial judgments was filed upon the ground that

the plaintiff (owner) was never served with pro-

cess or made a party to any action before a court

of competent jurisdiction, prior to, during, or

SEE Te IS hn cae hens a wehiena: 20

4. The petition for the annulment of the extrajudi-

cial judgments was filed upon the ground that -

the action of the government (Federal Aviation

Administration, United States Army Corps of

Engineers) has been such as to impose a servi-

tude upon the property which interferes with the

use, management, or enjoyment of the same -

WOSTREEE UPINTIOI nooo 55 oo eh dei de eesnss 21

5. The petition for the annulment of the extrajudicial

judgments was filed upon the ground that the

action, or INACTION of the Connecticut Depart-

ment of Transportation has been a medley of con-

tinuing official acts constituting interference with the

owner’s use and enjoyment of his property dating

back to November 12, 1964 — without just compensa-

tion, without due process ............cceecsseees 23

THE DECISION BELOW IS INCORRECT........... 24

AIOE 85555545 60 ne ne saanes couse Ubaveeeb es 26

TABLE OF AUTHORITIES

Page

Cases CITED:

Abdo Ahmed Nagi v United States, 751 F.2d 826...... Ps

Armstrong v BMamte, SOO UD. SOD ovo 5 cu ccccewesecenes 15

ee: Bee, F WERe Wee Wi kee ai eae wkd wes Mleeeess 15

Beaird-Poulan, Inc. v Louisiana Dept. of Highway’s,

OF Wile Oe 6 a5 64555 ced 5h 578ssde das eee 18

ae @ TU, T7o Bie. C0 Baie vn ni sk drat epasssncsses 21

Brandiff v Sellas, 40 C. Sup. 243, 488 A 853.......... 20

Brill v Uirey, 159 Conn. 371, 269 A 262 ............. 23

Calvert Cliffs Coord. Comm. v U.S. A.E. Comm., 449

Fae BO A xk 8A OK Enea ak Eee 18

Case v Bush, 93 Conn. 550, 106 A B22... 6.26.2 2ceee: 24

City of Atlanta v United States, 531 F. Supp. 506...... 8

City of Columbia, S.C. v Costle, 710 F.2d 1009 (1983) ... 18

Colorado River Water Cons. Dist. v United States, 424

ih | SPeererrr er ery yee rrr ee kre Pere. 21

Comprehensive Merchandising Catalogs Inc. v Mad-

SOM SMIGS COPM., TER Fake BSD os cnc cc ctseteseuscs 20

Crees 0 CIPEGIN, ZIG WT Tien cic cease vesne rt eus 15

Griggs v Allegheny County, 369 U.S. 84 .............. 22

Faeroe @ EME, SEF ULB. BOP oie sv ccc ese cancwededs 15

Hughes o Washington, 389 U.S. 290 . 2.2.2.2 ccc eeees 19

Jepsen v Toni Co., 20 Conn. Supp. 294............... 20

Kawasaki, Kissen, Kaisha, Ltd. v Indomar, Ltd., 173

Cee, ee ee en ewan brekes tekken 23

TABLE OF AUTHORITIES - Continued

Page

Lake Carriers Assn. v MacMullen, 406 U.S. 498 ....... 25

Lilly v Claypool, 53 S.E. 22, 59 W.Va. 1350. ........2.: 24

Lynch v Household Fin. Co., 405 U.S. 538............. 25

Morici v Jarvie, 137 Conn. 97, 75 A 47............... 23

New Haven Sandblast Co. v Dreisbach, 104 Conn.

ee Ge Oe OE sn 06d eed as ee Cen iesaaes 23, 24

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

Pennsylvania Coal Co. v Mahon, 260 U.S. 393......... 22

Samson v Bergin, 138 Conn. 306... 2.2... esc cceeeees 20

Shaw v Spelke, 110 Conn. 208, 147 A2d 675.......... 23

Shelton v Wolthauser, 80 Conn. 599 .................. 12

Simmons v State of Conn., 160 Conn. 492............. 13

Simmons v Wetherell, #163875........... 7, 12, 13, 24, 2

Standard Oil Co. v Missouri, 32 S.Ct. 409............. 16

Steinmeiz v Steinmetz, 125 Conn. 663 ................ 23

United States v Causby, 328 U.S. 256................. 22

United States v New Haven, 447 F.2d 972.............. 6

evunmeer & McVelak, FS US. 2746 oc ousciccscsccass 15, 16

Witman v Missouri St. Hwy. Comm., 460 F. Supp.

DUE ehoeyschunck neues ncons seseueeee dete r 18

STATUTES:

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ge Re Rk ere re ere oes Pee 18

A asin wo aid ati | Mea aie a id SC BS ATRL NK ina cas St —

Vil

TABLE OF AUTHORITIES - Continued

Page

ee ed Se NG Sc dh dn ea SOA A hae eee cane es 4, 8, 19

See Re EN ho 5 heen cea dencadewdeeans 7, 18, 25

ee as Se IS 5 645 40 0S Sak deb eos esuae ks ri >

et Gk er ere reer errr eT tere errs 16

og A Brrr er res CP eee errr er Crees 6

OP cs We RS I oi on hd canines davies seen 6

Oe Sig te IS klk ob £5 ands a 0ee DaWow ena uneeaes a 6

ee ee ee 7

ee es Oe errr eerr Tr reer Tere 7

Se es EY NE dG civ ataceevececnsaeen A 16

Administrative Proc. Act. § 5 U.S.C. 701 et seq..... 4, 8

LEGISLATIVE MATERIALS:

H.R. Rep. No. 91-646, 91st Cong. 2d Sess. (1970),

reprinted at 1970 U.S. Code Cong. & Ad. News

RS TS EE eR ee te oe en eee mee 17

eo ae a cic we awaken b ae yo ¥ 4

RE”. RIES Fehr ae arate enrmerm eer: hi

fiat 2 Pee errr re errr rs rr rrr rey ere oe 20

Black on Judgments (2d Ed.) Vol. 1 § 215........... 23

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No.

In The

Supreme Court of the United States

October Term, 1994

AUGUSTUS J. SIMMONS,

Petitioner,

DAVID R. HINSON, et al.,

Respondents.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FOR WRIT OF CERTIORARI

The petitioner, Augustus J. Simmons, respectfully

prays that a writ of certiorari issue to review the denial of

rehearing of the United States Court of Appeals for the

Second Circuit entered in this proceeding on February 7,

1995.

OPINION BELOW

The District Court judgment dismissing the com-

plaint dated May 27, 1994 is printed at Appendix C, infra,

and the order of the United States Court of Appeals for

the Second Circuit, dated December 21, 1994, is pririted at

Appendix B, infra, and the petition for rehearing 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 7, 1995. 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. § 4655 (Public Law 91-646 - January 2, 1971)

Requirements for uniform land acquisition policies; pay-

ments of expenses incidental to transfer of real property to

State; payment of litigation expenses in certain cases.

Notwithstanding any other law, the head of a federal

agency shall not approve any program or project which

will result in the acquisition of real property on and after

the effective date of this title, unless he receives satisfac-

tory assurances from such state agency that -

(1) In acquiring real property it will be guided, to

the greatest extent practicable under state law, by the

land acquisition policies in Section 301 and the provisions

of Section 302, and

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(2) Property owners will be paid or reimbursed for

necessary expenses as specified in Sections 303 and 304.

AMENDMENT OF SECTION § 4655

Pub. L. 100-17, Title IV §§ 417, 418, Apr. 2, 1987, 101

Stat. 256, provided that, to take effect on the effective

date provided in regulations promulgated under Section

4633 of this title (as amended by Section 412 of Pub. L.

100-17, but not later than two years after Apr. 2, 1987, this

section is amended by designating existing provisions as

Subsec. (a), in Subsec. (a) as so designated striking out “a

state agency” the first place it appears and inserting in

lieu thereof “an acquiring agency” and striking out “state

agency” the second place it appears and inserting in lieu

thereof “acquiring agency,” and by adding at the end

thereof the following new subsec. (b):

“(b) for purposes of this section, the ‘acquiring

agency’ means -—

“(1) a state agency (as defined in Section 4601(3) of

this title, which has the authority to acquire property by

eminent domiain uader state law, and

“(2) a state agency or person which does not have

such authority, to the extent provided by the head of the

lead agency by regulation.”

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

. 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.

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

in any other statute that grants consent to suit expressly

or impliedly forbids the relief which is sought.

42 U.S.C. § 4628 (Public Law 91-646 — January 2, 1971)

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STATE ACTING AS AGENT FOR FEDERAL PROGRAM

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 this federal agency

having authority over such program or project.

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

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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 Generai

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). The 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

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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, I have the highest

and utmost respect for Referee Shapiro and I 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 I

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 I talked to you on the phone, I 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?

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.; present also

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

On April 20, 1978, twenty-four (24) hours after plain-

tiff’s refusal to tender any deeds, plaintiff was served

with a NOTICE OF WITHDRAWAL by all counsel and the

local sheriff served plaintiff with a P.J.R. (pre-judgment

remedy ~— without hearing) attaching plaintiff’s airport

property to the sum of $105,000.00 for counsel fees — in

lieu of a service of process for real property acquisition,

notwithstanding the written representation was on a con-

tingency basis, and, the same day the P.J.R. was filed on

the Land Records of the Town of East Granby, Connecti-

cut, at Vol. 59, p. 419.

Without initiating any eminent domain proceedings,

having submitted a withdrawal, transcending power

from plaintiff’s tort action (Simmons v Wetherell, #163875),

an unconstitutional seizure is filed upon the Land

Records by Attorneys Rogin-Hirtle on June 2, 1978 at Vol.

59, p. 623, 626 (Ex. #1) — without a court stamp.

Another unconstitutional seizure is filed upon the

Land Records on June 5, 1978 at Vol. 59, p. 657 (Ex. #1) -

this time with a FABRICATED court stamp that contains a

citation at Vol. 59, p. 661 (Ex. #1) returnable the first

Tuesday of July, 1978 — that is NOT going to permit the

owner, Augustus J. Simmons to be heard by any court of

competent jurisdiction by NOT making him a party to the

transposed tort action.

Superior Court records show a memorandum dated

August 30, 1979 from Jason Pearl, Esq., representing

Rogin-Hirtle questioning why after initially granting a

motion for payment from the “slush fund,” Superior

Court Judge John Daly changed course due to a submis-

sion to the Judge by Chief Clerk Lucian Jachomovitz that,

in spite of submitting some cash to the clerk, a fund that

had no relationship whatsoever to the market value or

damages, the clerk could not make any disbursements -

“WITHOUT ANY PROCEEDINGS HAD IN OR RELATING

TO THAT CASE OR CAUSE” submitting Shelton v

Wolthauser, 80 Conn. 599 in support. PAYMENT DENIED.

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On May 13, 1980, the Connecticut Supreme Court

with “NU-TIEL RECORD” before the court, no return of

service ever made to the court, without notice to neces-

sary parties, renders a decision under/over plaintiff's

tort action (Simmons v Wetherell, #163875) 180 Conn. 587,

in direct conflict with a previous decision Simmons v State

of Conn., 160 Conn. 492, wherein the Connecticut

Supreme Court made very clear at page 500 — “The author-

ity to condemn its to be strictly construed in favor of the owner

and against the condemnor, and the prescribed method of

taking must be strictly pursued.” (Citations omitted.)

On September 22, 1980, by judge shopping, Judge

Sabino Tamburro granted counsel fees to Attorneys

Rogin-Hirtle of $95,600.00 plus interest of $18,014.49 for a

total of $113,614.49. Other court disbursements in sub-

stantial amounts were also made to Jerome Diamond, a

lienholder, and the Town of East Granby for taxes, in

spite of fraudulent backdating. Taxes are not paid on

state-owned property.

On July 7, 1982 lienholders Valente and Allaire with

exclusive liens on Parcel “C” upon which federal instru-

mentation is located, had applied to the court for satisfac-

tion of the liens from what funds remained and are

DENIED, by Superior Court Judge Dupont, A., notwith-

standing Simmons v Wetherell, supra, May 13, 1980.

The Superior Court was specifically challenged on

June 7, 1982 by Victor Feingold, Esq., Assistant Attorney

General for State of Connecticut with the lack of author-

ity to make any further payments with the following

excerpt from transcript of June 7, 1982 at page 17:

“I now direct Your Honor and invite Your

Honor’s attention to another element of jurisdic-

tion in the entire matter of Simmons against

Wetherell. I might say that whenever I call Your

Honor’s attention to the question of jurisdiction,

in accordance with the law of the state, if lack of

jurisdiction is brought to Your Honor’s atten-

tion, I mean subject matter jurisdiction, no mat-

ter in what form or in what way, Your Honor

cannot proceed on any of the proceedings until

you resolve the issue of subject matter jurisdic-

tion.”

It follows that if the Superior Court was without

jurisdiction of the subject matter in 1982 or of the parties

in 1982, certainly the Supreme Court of Connecticut was

in gross error in 1980 with no pleadings, docket number,

return of service to the court upon a matter that the

courts have previously determined, must be pursued

under federal laws and regulations.

Now, February 1, 1991 approaches and, with no com-

pensation paid the owner or necessary parties and the

court without jurisdiction to resolve compensation, and a

record fourteen (14) encumbrances against the owner

(liens, judgments, mortgages), the Army Corps of Engi-

neers, in concert with the Air National Guard and the

Connecticut Department of Transportation, INVADE AND

APPROPRIATE Parcel “A” and fence off approximately

two (2) acres without notice or compensation. WHY

NOT!! The F.A.A. did thirty (30) years ago, never paid a

nickel and Judge Cabranes in Federal Court not only

dismisses several court challenges by the owner on a

theory of “res judicata” and fines the owner for vexatious

lawsuits while the owner is paying high interest rates on

borrowed money - to subsidize the F.A.A. to fly the

planes in and out of Bradley International Airport.

The posture and circumstances of this thirty (30) year

extravaganza mandates the impeachment of the extra-

judicial judgment seizure.

REASONS FOR GRANTING THE WRIT

1. The opinion below reflects a widespread conflict

with other jurisdictions, the United States Constitu-

tion, and this Court in the arbitrary and fraudulent

confiscation of federal project airport property with-

out notice, without jurisdiction, and without statu-

tory authority.

For more than a century the central meaning of pro-

cedural due process had been clear: “Parties whose rights

are to be affected are entitled to be heard; and in order

that they may enjoy that right they must first be noti-

fied.” Baldwin v Hale, 1 Wall 223, 233; Windsor v McVeigh,

93 U.S. 274; Harvey v Elliot, 167 U.S. 409; Grannis v Ordean,

234 U.S. 385. It is equally fundamental that the right to

notice and an opportunity to be heard “must be granted

at a meaningful time and in a meaningful manner.” Arm-

strong v Manzo, 380 U.S. 545, 552.

Where there is no legal or valid record before the

Superior Courts of Connecticut upon which a recovery

can be had, BUT, the private law firm of Rogin-Hirtle, in

concert with state and federal officials, having filed an

appearance in plaintiff’s tort action (Simmons v Wetherell,

#163875), transcend the limits of its authority by anoint-

ing themselves with “SUPER POWER” to set judgments

aside (#162923, 1/11/77), withdraw active federal court

actions (2) without plaintiff’s permission (H-74-148, 472

F.2d 509 remand), backdate a taking to November 12,

1964 to avoid mandatory federal legislation, order the

Connecticut Department of Transportation Rights of Way

Division to file highway taking maps on the public Land

Records without notice or compensation, disregard the

securing of appraisals (49 C.F.R. § 24.102) to establish fair

market value, attach plaintiff’s property for legal fees of

$105,000.00 on April 20, 1978 for failure to give a deed,

then, on June 2 and June 5, 1978 put a confiscation on the

Land Records without initiating or commencing any pro-

ceedings before the court, and, couldn’t or wouldn’t be

bothered to have the sheriff serve necessary parties in a

citation and never serve them with process or make a

return of service to the court.

Next, a bag of cash is submitted to the Clerk of the

Superior Court, no written statements, as required by 49

C.F.R. § 24.102, no eminent domain proceedings were

commenced accompanying the cash which gets com-

pletely depleted over the years through judge-shopping,

gimmickry, and the owner has not, cannot be paid

because of C.G.S. 48-21 (lienholders) who have never

been notified or served with process, which liens must be

satisfied first. The cash bag was estimated at approx-

imately ten (10) percent of fair market value and dam-

ages.

From Windsor v McVeigh, 93 U.S. 274, 282 and Stan-

dard Oil Co. v Missouri, 32 Supreme Court at page 409, the

court (and that includes superpower bandits Rogin-Hir-

tle) “must act judicially in all things, and cannot then

transcend the power conferred by law.” “If the action be

for libel or personal tort, the court cannot order in the

case a specific performance of a contract.”

Under neither the original 42 U.S.C. § 4655 nor the

amendment of the Section, Pub. L. 100-17, Title IV §§ 417,

418, Apr. 2, 1987, 101 Stat. 256 would private counsel

Rogin-Hirtle possess statutory authority to act in such

confiscatory manner. The unsavory act preceded the

amendment and the original Section was controlling in

1978.

The Fifth and Fourteenth Amendments are very clear,

unambiguous —- too plain for argument ~ that, to take

private property for public use —- by force: SERVICE

MUST BE MADE UPON THE OWNER, NECESSARY

PARTIES, AND COMPENSATION PAID.

2. The opinion below reflects a significant and con-

tinuing problem with the unconstitutional backdat-

ing the confiscation to November 12, 1964 to avoid

compliance with congressionally mandated federal

regulations and procedures and concealment of

fraudulent leases entered into between the federal

agency, F.A.A., and the Connecticut Department of

Transportation.

The legislative history of the Act (P.L. 91-646) Titles II

and III states that “[i]t is immaterial whether . . . federal

funds contribute to the cost of the real property. The

controlling point is that the real property must be

acquired for a federal or federal financially assisted pro-

gram or project.” H.R. Rep. No. 91-646, 91st Cong. 2d

Sess. (1970), reprinted at 1970 U.S. Code Cong. & Ad.

News 5853 (giving as an example a state’s acquisition of

rights-of-way, for a federal-aid highway, with nonfederal

funds).

It is undisputed in the present case that the unlawful

and fraudulent confiscation is a necessary incident to

acquire a “satisfactory property interest” as defined in

federal regulations 14 C.F.R. § 152.3 (definitions) for air-

port navigational instrumentation installed, maintained,

and utilized exclusively by F.A.A. on the subject property

to control air traffic in, on, and around Connecticut's

premier airport, Bradley International Airport, — no later

than November 12, 1964.

The precise language of 42 U.S.C. § 4655, of the Act,

indicates that a state must be guided, “to the greatest

extent practicable under state law,” by the § 4651 pro-

cedures. Other jurisdictions have ruled that “greatest

extent practicable” meant that Congress intended to have

the grant recipient comply with the § 4651 procedures to

the fullest extent to which it is legally capable of comply-

ing under state law. Beaird-Poulan Inc. v Louisiana Dept. of

Highways, 497 F.2d 54, 58 (5 Cir), cert. denied, 420 U.S.

990, 95 S. Ct. 1424, 43 L.Ed 2d 670 (1974); Witman v

Missouri State Hwy. Comm., 400 F. Supp. 1050, 1066-68

(W.D. Mo. 1975); City of Columbia, S.C. v Costle, 710 F.2d

1009 (1983).

In Calvert Cliff's Coord. Com. v United States A. E.

Com., 449 F.2d 1109 (1971) the court at page 1114 ruled that

the phrase “to the fullest extent possible” does not pro-

vide an escape hatch for footdragging agencies, it does

not make procedural requirements somehow “discretion-

ary.” Indeed, the requirement sets a high standard for the

agencies, a standard which must be rigorously enforced

by the reviewing courts.

Where there were three (3) Supreme Court decisions

on the subject property: 153 Conn. 351; 155 Conn. 502; 160

Conn. 492 (1971), a remand by the Second Circuit (472

F.2d 509 (1973)), a statement by the owner on April 19,

1978 that there will be no goddamned closing with a

dating back to November 12, 1964, nevertheless, the

unconstitutional confiscation, OVERRIDES the Connecti-

cut Supreme Court, the Second Circuit Court of Appeals

with a dating back to November 12, 1964. The Fourteenth

Amendment forbids such confiscation by a state, no less

through its courts, than through its legislature, and no

less when a taking is unintended than when it is deliber-

ate. Hughes v Washington, 389 U.S. 290, p. 298.

The executing of LEASES by the Federal Aviation

Administration with the Connecticut Department of

Transportation of the subject property, without notice or

compensation to the owner is a CONTINUING VIOLA-

TION of the Fifth Amendment and a deliberate, devious,

unconstitutional procedure to avoid the primary respon-

sibility for acquisition under 42 U.S.C. § 4628 of the

Uniform Act which reads: “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 the Act be deemed an acquisi-

tion by the federal agency having authority over such

program or project.”

3. The petition for the annulment of the extrajudicial

judgments was filed upon the ground that the plain-

tiff (owner) was never served with process or made

a party to any action before a court of competent

jurisdiction, prior to, during, or after the confisca-

tion.

The judgment of a court without jurisdiction is a

nullity. Such a judgment, whenever and wherever

declared upon as a source of a right, may always be

challenged. This does not offend the full faith and credit

clause of the Federal Constitution, nor does it violate the

principles of comity. Samson v Bergin, 138 Conn. 306.

Contention that a State Court Judgment is void may

be asserted in any proceeding where the validity of the

judgment is put in issue. Fed. Rules Civ. Proc. Rule 60(b)

28 USCA, Comprehensive Merchandising Catalogs, Inc. v

Madison Sales Corp., 521 F.2d 1210 (1975).

Under Connecticut law, judgment entered before

return day is void. Jepsen v Toni Co., 20 Conn. Supp. at p.

294.

Improper return day affects court's jurisdiction. Bran-

diff v Sellas, (1985) 40 Conn. Supp. 243, 488 A 853.

Notwithstanding the citation shown in Ex. #1 of the

Public Land Records of the Town of East Granby, Con-

necticut at Vol. 59, p. 661 in the present action before the

court, there was: NO NOTICE, NO SERVICE, NO

RETURN OF PROCESS TO THE COURT - and NO JURIS-

DICTION FOR THE CONNECTICUT COURTS UPON

WHICH TO PASS JUDGMENT, OR PAY COMPENSA-

TION.

4. The petition for the annulment of the extrajudicial

judgments was filed upon the ground that —- the

action of the government (Federal Aviation Admin-

istration, United States Army Corps of Engineers)

has been such as to impose a servitude upon the

property which interferes with the use, manage-

ment, or enjoyment of the same - without compen-

sation.

Where it is apparent that the United States is the

owner, and has exclusive jurisdiction, of certain naviga-

tional instrumentation on the surface of private property

of plaintiff, and “agents” under grant-agreements have

been in the process of attempting to acquire, by various

means, an adequate property interest for the past three

(3) decades, the UNITED STATES must be a necessary

party to any such suit, judgment, or other procedure.

The National government is guardian of a public

right of access to navigable airspace of the United States.

The navigational servitude is the legal formula by

which we recognize the paramount nature of this govern-

mental responsibility.

It is a well established rule that in any kind of action

or suit, in order that a valid judgment may be rendered,

all necessary and essential parties must be before the

court, and that those who are necessary parties are such

persons, or entities, as have or claim a direct interest in

the object and subject matter of the suit and whose inter-

ests will necessarily be affected. Belt v Texas Co., 175 S.W.

2d 622; Colorado River Water Cons. Dist. v United States,

424 U.S. 800.

Under the logic of Pennsylvania Coal Co. v Mahon, 260

U.S. 393 (1922), the invasion, appropriation, erection of

navigational instrumentation on surface of private prop-

erty by the F.A.A. was a “taking” — requiring payment of

fair market value compensation.

If the government physically invades only an ease-

ment in property, it must nonetheless pay compensation.

United States v Causby, 328 U.S. 256, 265 (1946).

Quoting from Griggs v Allegheny County, 369 U.S. 84

at p. 93, Supreme Court Justice Black with Justice Frank-

furter concurring said: “Merely because local commu-

nities might eventually be reimbursed for the acquisition

of necessary easements does not mean that local commu-

nities must acquire easements that the United States has

already acquired.” And, at p. 94, “Having taken the air-

space over Griggs private property for a public use, it is

the United States which owes just compensation.”

The Army Corps of Engineers, in concert with the Air

National Guard and Connecticut Department of Trans-

portation, having invaded Parcel “A”, a separate and

distinct parcel from the F.A.A. invasion, on February 1,

1991, without a search of the land records, without notice,

without compensation, is a TRESPASSER.

5. The pet tion for the annulment of the extrajudicial

judgments was filed upon the ground that the

action, or INACTION of the Connecticut Depart-

ment of Transportation has been a medley of con-

tinuing official acts constituting interference with

the owner’s use and enjoyment of his property dat-

ing back to November 12, 1964 —- Without just com-

pensation, without due process.

It is Hornbook law that “any judgment should con-

form to pleadings, issues and prayers for relief.”

Kawasaki, Kissen, Kaisha, Ltd. v Indomar, Ltd., 173 Conn.

269, 377 A2d 316; Brill v Ulrey, 159 Conn. 371, 269 A.2d

262; Morici v Jarvie, 137 Conn. 97, 75 A.2d 47; Shaw v

Spelke, 110 Conn. 208, 147 A 675; Steinmetz v Steinmetz,

125 Conn. 663, 7 A.2d. The Connecticut Supreme Court

had occasion to discuss this principle in New Haven Sand-

blast Co. v Dreisbach, 104 Conn. 322, 330, 133 A 99. In that

case, the court stated:

A defect in a judgment arising from the fact

that the matter decided was not embraced

within the issue has not, it would seem, received

much judicial consideration. And yet I cannot

doubt that, upon general principles, such a

defect must avoid judgment.

133 A at 102 (citation omitted). The Court also stated,

quoting Black on Judgments (2d Ed.) Vol. IL, § 215:

Besides jurisdiction of the person of the

defendant and of the general subject-matter of

the action, it is necessary to the validity of the

judgment that the court should have had juris-

diction over the precise question which its judg-

ment assumes to decide, or of the particular

remedy or relief which it assumes to grant

* * * and third, the point decided must be in

substance and effect, within the issue.

133 A at 102 (citations omitted)

Finally, the court cited with approval the case of Lilly

v Claypool, 53 S.E. 22, 24, 59 W. Va. 130, 133: “There is no

principle better settled than that a judgment or decree

cannot be entered in the absence of pleadings upon which

to found the same.” 133 A at 102 (citations). (See also Case

v Bush, 93 Conn. 550, 552, 106 A 822 — indicating that the

variance between the judgment and the issues raised is

jurisdictional.)

It is significant that in New Haven Sandblast Co.,

supra, the court was asked to issue a ruling based upon

stipulated, rather than actual facts. The court expressly

found that the agreement of the parties was not sufficient

to constitute a waiver and could not “confer jurisdiction

upon the Trial Court.”

THE DECISION BELOW IS INCORRECT

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.

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

EOE OE ew

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 seizure judgment entered

without the parties, without proceeding under a court

order, without the service of summons or any return to

the court, notwithstanding that federal law and regula-

tions were applicable, controlling, completely ignored,

with the transcending of power from plaintiff’s tort

action, Simmons v Wetherell, supra.

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

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 regula-

tions 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).

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the opinion of the Second Circuit Court of

Appeals on this unconstitutional seizure.

Respectfully submitted,

/s/ Augustus J. Simmons

Aucustus J. Simmons, Petitioner

P. O. Box #1

Windsor, CT 06095

(203) 569-6714

aN. si alate) ieee ate eda el

OMENS ed UE UA erat leer coe. telat an A

. PPENDIX

INDEX TO APPENDIX

Page

APPENDIX - A

PETITION FOR REHEARING IN BANC

BEFORE THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT (FEB-

| PTET PON Cr ere ree Ore ET Te reer er la

APPENDIX - B

UNREPORTED OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE SEC-

: OND CIRCUIT (DECEMBER 21, 1994) ............ 2a

APPENDIX - C

JUDGMENT OF THE UNITED STATES DIS-

TRICT COURT FOR THE DISTRICT OF CON-

PUR RMNetee COMPRE 27, BPPOR + cc rccccncanccevacsxsas 5a

APPENDIX - D

UNREPORTED OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE SEC-

OND CIRCUIT (FEBRUARY 23, 1993)............ 7a

APPENDIX - E

JUDGMENT AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT

OF CONNECTI.U? GULLY 15, 1992) .........<.. l4a

APPENDIX - F

JUDGMENT OF THE UNITED STATES DIS-

3 TRICT COURT FOR THE DISTRICT OF CON-

PRR e tele MOPED BOlp GOONS Asc set eensccenscces« 17a

APPENDIX - G

UNREPORTED OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE SEC-

OND CIRCUIT (SEPTEMBER 14, 1988)........... 19a

INDEX TO APPENDIX - Continued

APPENDIX - H

JUDGMENT OF THE UNITED STATES DIS-

TRICT COURT FOR THE DISTRICT OF CON-

POM One e GAP eet BU, BOOS vec cecccscccecuses

APPENDIX - I

UNREPORTED OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE SEC-

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

APPENDIX - J

PETITION FOR REHEARING BEFORE THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT (FEBRUARY i0, 1984)...

APPENDIX - K

JUDGMENT OF THE UNITED STATES DIS-

TRICT COURT FOR THE DISTRICT OF CON-

NECTICUT (AUGUST 24, 1983)................

APPENDIX - L

UNREPORTED OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE SEC-

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

APPENDIX - M

DECISION OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF CONNECTI-

CUT FOR PRELIMINARY INJUNCTION

Pics: we, earner rrr rT rr err ry

Page

25a

ee ee ee Pre)

INDEX TO APPENDIX - Continued

APPENDIX - N

RULING OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF CONNECTI-

COPE SP PRIAUINE Fp DUO 0 a5 66 ce cctvedsenesess

APPENDIX - O

UNREPORTED OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE SEC-

OND CIRCUIT (JUNE 9, 1983)...........c0000-

APPENDIX - P

RULING OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF CONNECTI-

el ge a” ae pene

APPENDIX - Q

REPORTED DECISION IN PART AND

REMAND IN PART BY THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIR-

CUIT — (472F2d509) (JANUARY 19, 1973)......

APPENDIX - R

PRESIDENTIAL MEMORANDUM TO

IMPROVE ADMINISTRATION AND IMPLE-

MENTATION OF THE UNIFORM RELOCA-

TION ASSISTANCE AND REAL PROPERTY

ACQUISITION POLICIES ACT OF 1970 (FEB-

EE, a. SE i iene Sp Saks sia aek deewhiee een’

APPENDIX - S

EXECUTED LEASE BETWEEN STATE OF CON-

NECTICUT, DEPARTMENT OF TRANSPORTA-

TION, AND UNITED STATES OF AMERICA,

BY FEDERAL AVIATION ADMINISTRATION

CS Peer ey eee ere rs eee rere

Page

Se te a NI "la a

APPENDIX A

UNITED STATES DISTRICT COUPT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS

v. CIVIL NO. 3:94cv778 (AHN)

DAVID R. HINSON, et al

JUDGMENT

(Filed May 27, 1994)

This cause came on for consideration on plaintiff's

complaint before the Honorable Alan H. Nevas, United

States District Judge, and

The Court having considered the complaint and all

the papers submitted in connection therewith filed its

order finding that in light of Judge Cabranes’ mandate,

the underlying complaint should never have been dock-

eted and further ordered the case dismissed with preju-

dice,

It is therefore ORDERED and ADJUDGED that the

complaint be and hereby is dismissed with prejudice, in

accordance with the court's order.

Dated at Bridgeport, Connecticut this 27th day of

May, 1994.

KEVIN F. ROWE, Clerk

By /s/ Carol E. Cannady

Carol E. Cannady

Deputy in Charge

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse in the City of New York, on the 21st day of

December, one thousand nine hundred and ninety-four.

PRESENT: HONORABLE JON O. NEWMAN,

Chief Judge.

HONORABLE J. EDWARD LUMBARD,

Circuit Judge.*

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant,

v. 94-6156

DAVID R. HINSON, Administrator, Federal

Aviation Administration; HENRY J. HATCH,

Lt. Gen., Chief Engineer, United States

Army Corps of Engineers; EMIL H. FRANKEL,

Commissioner of Transportation; JOHN J.

COLLINS, Col.; STATE OF CONNECTICUT,

Richard Blumenthal, Attorney General;

JOHN J. BARTIZEK, District Clerk; EDWARD

ROGIN, SR., and ROBERT HIRTLE, JR.,

Defendants-Appellees.

* Honorable Thomas J. Meskill, Circuit Judge, originally a

member of the panel, recused himself after oral argument, and

the appeal is being disposed of by the remaining members of the

panel, who are in agreement. See Second Circuit Local Rule

§ 0.14(b).

a Sa ee ee ee ee Oe,

ORDER

(Filed Dec. 21, 1994)

Appeal from the United States District Court for the

District of Connecticut (Alan H. Nevas, Judge).

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 submitted by appellee.

ON CONSIDERATION WHEREOF, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the judgment

of the District Court be and it hereby is AFFIRMED.

Augustus J. Simmons appeals pro se from the May 27,

1994, judgment dismissing sua sponte his suit, purpor-

tedly filed under Fed. R. Civ. P. 60(b), to set aside rulings

of the Connecticut Superior Court. This filing is the latest

in a series of actions filed in state and federal courts, in

which Simmons is endeavoring to relitigate a dispute that

arose in 1971 concerning real property. We previously

affirmed the District Court’s dismissal of a prior suit by

Simmons, a ruling that included an injunction prohibiting

Simmons from further attempts to relitigate his claim.

Simmons v. Burns, No. 88-6093 (2d Cir. Sept. 14, 1988).

Despite that injunction, Simmons has filed the current

suit. Judge Nevas properly dismissed the suit as filed in

violation of the injunction.

On the prior appeal, Simmons was warned that viola-

tion of the injunction may be punished, a warning he has

ignored. He still remains subject to contempt penalties for

the current filing and for any future effort to relitigate his

claim. On the pending appeal, we affirm the judgment of

the District Court, and, pursuant to Fed. R. App. P. 38,

order Simmons to show cause within ten days why he

should not be assessed damages for a frivolous appeal in

the amount of $5,000, in addition to normal taxable costs.

/s/ John O. Newman

Chief Judge.

/s/ J. Edward Lumbard

Circuit Judge.

N.B. THIS SUMMARY ORDER WILL NOT BE PUB-

LISHED IN THE FEDERAL REPORTER AND SHOULD

NOT BE CITED OR OTHERWISE RELIED UPON IN THE

UNRELATED CASES BEFORE THIS OR ANY OTHER

COURT

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

NHCT

94-cv-778

Nevas, J.

GEORGE LANGE III

CLERK

At a stated term of the United States Court of appeals

for the Second Circuit, held at the United States Court-

house in the City of New York, on the seventh day of

February one thousand nine hundred and ninety-five.

Augustus J. Simmons,

Plaintiff-Appellant, Docket No. 94-6156

v. (Filed Feb. 7, 1995)

David Hinson, Administrator, Federal Aviation

Administration, Henry J. Hatch, Lt. Gen., Chief

Engineer United States Army Corps of Engineers,

Emil H. Frankel, Commissioner of Transportation,

Attorney General; John J. Bartizek, District Clerk,

Edward Rogin, Sr. and Robert Hirtle, Jr.,

Defendants-Appellees.

A petition for rehearing containing a suggestion that the

action be reheard in banc having been filed herein by the

appellant Augustus J. Simmons.

Upon consideration by the panel that decided

the appeal, it is Ordered that said petition for

rehearing is DENIED.

It is further noted that the suggestion for rehearing in

banc has been transmitted to the judges for the court in

regular active service and to any other judge that heard

the appeal and that no such judge has requested that a

vote be taken thereon.

FOR THE COURT

GEORGE LANGE III, Clerk

By: /s/ Carolyn Clark Campbell,

Carolyn Clark Campbell,

Chief Deputy Clerk

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 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 U.S. 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.

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, J.) 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

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

Simmons’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

10a

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

eh a tae Ws farts anand is Rn aii a

PELL ATO at NOG Wl Nh IS -

hh ss = |

— fs

lla

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.,

U.S.C].

/s/ Joseph M. McLaughlin

Hon. Joseph M. McLaughlin,

USA...

/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.

12a

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.

SP ee Cee eS ae ee Te er

13a

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 on the transcript of record

from

Dismissed sua sponte.

l4a

APPENDIX E

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS

VS.

EMIL H. FRANEL, et al.

2:92 CV 00395 PCD

——

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.

BYES DUE Ta arg BIR ING eae Fe RN PASM OT ERS CE Re CRE RS

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

15a

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS Docket No.

2:92cv00395 (PCD)

(Filed July 8, 1992)

-VSs-

EMIL H. FRANEL, et al.

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).

l6a

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

sania

ee a

Ra ala, jes een

17a

APPENDIX F

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS

WILLIAM BURNS, Commissioner, ALLAN McARTOR,

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

TASHJIAN, THOMAS P. BYRNE, CONNECTICUT

NATIONAL BANK AND TRUST, JEROME DIAMOND,

LEONIDAS D. SIMMONS, LEONARD ALLAIRE,

MARIE ALLAIRE, PATSY VALENTE, ERNESTINE

VALENTE, ANGELO RONCARI, ATTY. GERALD A.

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 Rul-

ing 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.,

18a

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

19a

APPENDIX G

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,

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.

20a

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.

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 all respects,

including its injunction against further federal litigation

concerning these claims, and that any violation of that

injunction may be punished as a contempt of court.

J. Epwarp LuMBARD,

J. DANntEL MAHONEY,

Circuit Judges

Con. G. CHOLAKIS,

District Judge

2la

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.

22a

APPENDIX H

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS

UNITED STATES OF AMERICA, ET AL

CIVIL H-85-45 MJB

JUDGMENT

This action having come on for consideration of the

defendants’ motions to dismiss before the Honorable M.

Joseph Blumenfeld, United States District Judge, and

The Court having considered the full record of the

case including applicable principles of law, and the Court

having granted the motions

It is accordingly ORDERED, ADJUDGED and

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. [AVARONE

Deputy-in-Charge

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 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 WHEREOPF, it is now hereby

ordered, adjudged and decreed that the judgment of said

District Court be and it hereby is AFFIRMED.

24a

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

WALTER R. MANSFIELD,

JaMes L. Oakes,

Circuit Judges

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

opinion of this court and is not uniformly available to all

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

related cases before this or any other court.

25a

APPENDIX J

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,

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,

26a

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

27a

APPENDIX K

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS,

UNITED STATES OF AMERICA, ELIZABETH DOLE,

Secretary of United States Department of

Transportation; FEDERAL AVIATION

ADMINISTRATION; J. LYNN HELMS, Administrator;

STATE OF CONNECTICUT; J. WILLIAM BURNS,

Commissioner of Connecticut Department of

Transportation

AUGUSTUS J. SIMMONS

ARTHUR B. POWERS, COMMISSIONER,

DEPARTMENT OF TRANSPORTATION

No. 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

28a

favor of the Defendant dismissing the Plaintiff's com-

plaints.

Dated at Hartford, Connecticut, this 24th day of

August, 1983.

Sy_vesTeR A. MARKOWSKI,

Clerk, United States District Court

TP ccnsesrenvecevsnsnstaiictoemnenitinninestecsdenmmtoorsee

JOHN K. HENDERSON, Jr.

Deputy in Charge

29a

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 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,

ARTHUR B. POWERS, etc.,

Defendant-Appellee.

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant

UNITED STATES OF AMERICA, et At.,

Defendant-Appellee

No. 83-6257

Appeal from the United States District Court for the

District of Connecticut.

30a

Thi: 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 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

3la

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.

32a

APPENDIX M

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS,

Plaintiff

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.J.

August 17, 1983, Hartford, CT

33a

APPENDIX N

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS

UNITED STATES OF AMERICA, FEDERAL AVIATION

ADMINISTRATION, J. LYNN HELMS, Administrator,

Federal Aviation Administration,

STATE OF CONNECTICUT,

CONNECTICUT STATE DEPARTMENT

OF TRANSPORTATION, and J. WILLIAM BURNS,

Commissioner, Connecticut State Department

of Transportation

No. H 81-778

RULING ON THE FEDERAL DEFENDANTS’

MOTION TO DISMISS

JOSE A. CABRANES, District Judge:

This procedurally convoluted action arises out of a

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-2dants] which

34a

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

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

The first count of the Third Amended Complaint

alleges a claim under the Federal Tort Claims Act, 28

U.S.C. §§ 2671 et seq. The pertinent allegations of count

one are that the “FAA has placed a middle marker on

Parcel C [of which plaintiff alleges he is the owner] and

an Instrument Landing System,” Third Amended Com-

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

FAA have ousted the Plaintiff from possession of this

land since 1964,” ¥ 33; and that ‘the United States and

the FAA have never compensated the Plaintiff for their

use of Parcels A and C,” ¥ 34. According to plaintiff, the

instrument landing system was emplaced in 1960, ¥ 6, the

middle marker in 1974, ¥ 7.

The statute of limitations for the Federal Tort Claims

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

part that a tort claim against the United States will be

barred unless “presented in writing to the appropriate

Federal Agency within two years after such claim

accrues. ... ” It is undisputed that plaintiff did not

commence this action until 1981. Plaintiff does not allege

that he filed any federal court action or agency claim

before that time.

Plaintiff contends, however, that his claim is not

time-barred. That contention derives from plaintiff's

reading of two cases, United States v. Dickinson, 331 US.

745 (1947), and United States v. One 1961 Red Chevrolet

Sasi rihe HRSE RAT

NP uk oe Ph

35a

Impala Sedan, 457 F.2d 1353 (5th Cir. 1972). This Court is

not persuaded that either case cited is on point.

In Dickinson, the United States had constructed a

dam, and as a result the plaintiff’s land was periodically

flooded. The dam was completed in 1936, the first 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.

36a

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 Chevrolet -

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.

II.

In count three of the Third Amended Complaint,

plaintiff alleges numerous violations of unspecified “Fed-

eral law,” {J °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, {J 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,

37a

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 U.S.C.

§ 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.

II.

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

38a

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

39a

APPENDIX O

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

40a

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

4la

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.

WILFRED FEINBERG, Chief Judge

Henry J. FRIENDLY

RacpH 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.

42a

APPENDIX P

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS

HORACE B. WETHERELL, Director of Aeronautics;

DONALD J. LYNCH, Deputy Director of Aeronautics;

FRANK C. PARIZEK, EDWARD J. COADY, KINGSLEY

GILLESPIE, HUGH C. CURRAN, ARTHUR SACHS and

E. DONALD WALSH, The Aeronautics Commission of

Connecticut; and HERBERT A. PREISSNER, Manager

of Bradley International Airport

Civil No. 14,806

RULING ON DEFENDANTS’ MOTIONS TO

DISMISS AND TO DISCHARGE ATTACHMENTS

The plaintiff, Augustus J. Simmons, has brought suit

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

redress against several public officials 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.”

43a

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.

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

44a

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

45a

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.

46a

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 iHegal arrest and

imprisonment.

Il.

THE CRIMINAL PROSECUTION

The plaintiff seeks damages for his allegedly illegal

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

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

failed to state a federal claim upon which relief may be

granted.

The plaintiff acknowledges that he was convicted in a

state court for cutting a fence erected by the defendants.

He may not collaterally attack that conviction here, in the

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

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

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

Further, his complaint fails to allege that the 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.

47a

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).

IT.

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... .”

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

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

48a

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. ausby,

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.

49a

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

50a

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.

5la

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. JosePH BLUMENFELD

Chief Judge

52a

APPENDIX Q

SIMMONS v. WETHERELL

Cite as 472 F.2d 509 (1973)

AUGUSTUS J. SIMMONS,

Plaintiff-Appellant,

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

53a

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.

54a

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.

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.

55a

Before LUMBARD, SMITH and MANSFIELD, Circuit

Judges.

SMITH, C rcuit 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 adjoin-

ing Bradley International Airport. Augustus J. Simmons

now appeals from a judgment of the United States Dis-

trict 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).

56a

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).

57a

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 che 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

58a

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

59a

asserting his rights, neither should state officials be

force. 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 (°d

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

U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L.Ed.2d 80 (1957). If the

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

it off without paying him due compensation or instituting

court proceedings, it would seem that a deprivation of

appellant’s right to “enjoy” the use of his land is stated.

See Lynch, supra, 405 U.S. at 544, S. Ct. 1113.

60a

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 appellant’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

6la

APPENDIX R

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, I 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.

[FR Doc. 85-5298

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

Billing code 3195-01-M

62a

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 shal!

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

63a

APPENDIX S

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 UNitED 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:

64a

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

here:), 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 growth 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;

65a

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, \vhich 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

66a

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 all

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

67a

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.

68a

IN WITNESS WHEREOF, the parties hereto have

hereunto subscribed their names as of the date indicated.

WITNESSES

/s/ Sandra L. Barone

/s/ Madeline P. Makiaria

/s/ George J. Bates

/s/ Susan R. Pitt

STATE OF CONNECTICUT

DEPARTMENT OF

TRANSPORTATION

By /s/ Joseph B. Burns

(Seal)

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

Deputy Attorney

General

State of Connecticut

Date: JUL 26 1974

/s/ Gerald J. Nelson

Deputy Commissioner

of Finance and

Control

State of Connecticut

Date: 6/25/74

Ae lt Oo = at eaemesretoe

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.