# Petition for Writ of Certiorari — Simmons v. Hinson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1544%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1995 - **Citation:** 515 U.S. 1121 ## Text Supreme Court, us ‘ FILED . 941651 APR 7 - 1995 GEE -H-SteRE $$ 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. il 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, CT 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 iV 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 v1 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: es Ee Es Wibod 595d o a eA aA ea 8 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 ce ip eet bak Ae vas en i bene i eal Acai ail SS SO ee Cee ee 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 o 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 es ee ee See ee Baie lbs bance t nce Links ieee dels rater De ogi (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 af . nor shall private property be taken for public use, without just compensation.” AMENDMENT XIV, CONSTITUTION OF THE UNITED STATES us . 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) a ~ nde ema Ne. Wet uted: ahd tions. Be NG me Woe onten, © ea nite ae tod Hed Aiea te nn 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 Baten ae Po at lee hei GRR Te tigi. Bi ee tie RN MRS SS ae eae ee Ct ABE DO A AN aa, Rahat RAE hen! be S ta ids th cot Speirs atm I A ha tee RE le ak Ah RS BY 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 ish aaah | nid ra ee hai aes hs Sie eras HR LTS RS a PSG fd Ca PEN. taki MS «hab Anca ANTES Ab SD Yao 2 rhe CER OM Ente es 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 10 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 11 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, 12 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. Ba ath Nn a ae ee ee ae ees 13 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: 14 “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 15 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 16 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 17 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 18 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 19 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.” 20 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. 21 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. 22 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. 23 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 24 * * * 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 F 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). ¢ 26 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 il 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 la 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 2a 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, 3a 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 da 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 5a 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. 6a 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 7a 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. 8a 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 Ee 9a 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, v. 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 V. WILLIAM BURNS, Commissioner, ALLAN McARTOR, Adm., FAA, ATTY, EDWARD ROGIN, JULIA Z. TASHJIAN, THOMAS P. BYRNE, CONNECTICUT NATIONAL BANK AND TRUST, JEROME DIAMOND, LEONIDAS D. SIMMONS, LEONARD ALLAIRE, MARIE ALLAIRE, PATSY VALENTE, ERNESTINE VALENTE, ANGELO RONCARI, ATTY. GERALD A. ROISMAN, JOHN J. ROWLSON, JOHN MASSOW, FLORENCE MASSOW, ALBERT ENDEE, JOHN KATAJA, ATTY. MARGARET DEAN, GERALD F. MIKULSKE, RONALD MUSKATALLO, ATTY. RONALD CASSIDENTO, STEPHEN SILVERMAN, ATTY. ROBERT HIRTLE, DAVID SALZMAN, FRANK ROTHAMMER, JOHN J. BARTIZEK and ROCCO D’ESTITO CIVIL NO. H-87-732 (JAC) FINAL JUDGMENT This cause came on for consideration on plaintiff’s motion for reconsideration of the Court’s Ruling on Pend- ing Motions and Order, filed March 15, 1988, before the Honorable Jose A. Cabranes, United States District Judge, and the issues having been duly reconsidered and a 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, V. J. WILLIAM BURNS, Et At., Defendants-Appellees. ORDER 88-6093 Appeal from the United States District Court for the District of Connecticut. This cause came to be heard on the transcript of record from the United States District Court for the Dis- trict of Connecticut, and was argued by appellant pro se and by counsel for appellees. * Hon Con. G. Cholakis, District Judge, United States Dis- trict Court for the Northern District of New York, sitting by designation. 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 v. UNITED STATES OF AMERICA, ET AL CIVIL H-85-45 MJB JUDGMENT This action having come on for consideration of the defendants’ motions to dismiss before the Honorable M. Joseph Blumenfeld, United States District Judge, and The Court having considered the full record of the case including applicable principles of law, and the Court having granted the motions It is accordingly ORDERED, ADJUDGED and DECREED that judgment be and is hereby entered dis- missing the plaintiff's complaint. Dated at Hartford, Connecticut, this 10th day of April 1985. Kevin F. Rowe, Clerk By: Dennis P. [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, v. ARTHUR B. POWERS, Commissioner of Department of Transportation, Defendant-Appellee. AUGUSTUS J. SIMMONS, Plaintiff-Appellant, V. UNITED STATES OF AMERICA, ELIZABETH DOLE, Secretary of United States Department of Transportation, FEDERAL AVIATION ADMINISTRATION, J. LYNN HELMS, Administrator, STATE OF CONNECTICUT, J. WILLIAM BURNS, Commissioner of Connecticut Department of Transportation and CONNECTICUT DEPARTMENT OF TRANSPORTATION, Defendants-Appellees. No. 83-6257 A petition for a rehearing having been filed herein by plaintiff-appellant, Augustus J. Simmons, pro-se, 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, v. UNITED STATES OF AMERICA, ELIZABETH DOLE, Secretary of United States Department of Transportation; FEDERAL AVIATION ADMINISTRATION; J. LYNN HELMS, Administrator; STATE OF CONNECTICUT; J. WILLIAM BURNS, Commissioner of Connecticut Department of Transportation AUGUSTUS J. SIMMONS V. ARTHUR B. POWERS, COMMISSIONER, DEPARTMENT OF TRANSPORTATION No. H81-778 and No. 83-225 JUDGMENT These consolidated actions having come on for con- sideration of the Defendants’ Motions to Dismiss before the Honorable Jose A. Cabranes, United States District Judge; and, The Court having considered the full record of the case including the applicable principles of law, and the Court having filed its endorsements on August 16, 1983, granting Defendants’ motions, It is accordingly ORDERED, ADJUDGED and DECREED that judgment be and is hereby entered in 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, V. ARTHUR B. POWERS, etc., Defendant-Appellee. AUGUSTUS J. SIMMONS, Plaintiff-Appellant V. 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 V. J. WILLIAMS BURNS, AS HE IS THE COMMISSIONER OF THE CONNECTICUT DEPARTMENT OF TRANSPORTATION, AND J. LYNN HELMS, AS HE IS THE ADMINISTRATOR OF THE FEDERAL AVIATION ADMINISTRATION Defendants. No. 81-778 Appeal No. 83-5141 PLAINTIFF’S MOTION FOR “FINAL DECISION” ON WITHHOLDING OF FEDERAL FUNDS FOR ALL AIRPORT DEVELOPMENT AT BRADLEY INTERNATIONAL AIRPORT (Preliminary Injunction) DENIED as moot, in view of the court’s disposition of the case. See the court’s endorsement order (filed Aug. 16, 1983) of the federal defendants’ motion to dismiss and the court’s endorsement order (filed Aug. 17, 1983) of the state defendants’ motion to dismiss. It is so ordered. Jose A. Casranes, U.S.D.J. August 17, 1983, Hartford, CT 33a APPENDIX N UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT AUGUSTUS J. SIMMONS v. UNITED STATES OF AMERICA, FEDERAL AVIATION ADMINISTRATION, J. LYNN HELMS, Administrator, Federal Aviation Administration, STATE OF CONNECTICUT, CONNECTICUT STATE DEPARTMENT OF TRANSPORTATION, and J. WILLIAM BURNS, Commissioner, Connecticut State Department of Transportation No. H 81-778 RULING ON THE FEDERAL DEFENDANTS’ MOTION TO DISMISS JOSE A. CABRANES, District Judge: This procedurally convoluted action arises out of a dispute between plaintiff and various defendants con- cerning the use of several parcels of land in the town of East Granby, Connecticut. On November 8, 1982, plaintiff filed his third Amended Complaint, and on December 21, 1982 the federal defendants (the United States of Amer- ica, the Federal Aviation Administration, and J. Lynn Helms as Administrator of the Federal Aviation Adminis- tration) filed a motion to dismiss the claims asserted against them, pursuant to Rule 12(b)(1) and (6), Fed. R. Civ. P. Because this court concludes that “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim [against these defen-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. I. The first count of the Third Amended Complaint alleges a claim under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. The pertinent allegations of count one are that the “FAA has placed a middle marker on Parcel C [of which plaintiff alleges he is the owner] and an Instrument Landing System,” Third Amended Com- plaint, { 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 ip 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 af 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 v. HORACE B. WETHERELL, Director of Aeronautics; DONALD J. LYNCH, Deputy Director of Aeronautics; FRANK C. PARIZEK, EDWARD J. COADY, KINGSLEY GILLESPIE, HUGH C. CURRAN, ARTHUR SACHS and E. DONALD WALSH, The Aeronautics Commission of Connecticut; and HERBERT A. PREISSNER, Manager of Bradley International Airport Civil No. 14,806 RULING ON DEFENDANTS’ MOTIONS TO DISMISS AND TO DISCHARGE ATTACHMENTS The plaintiff, Augustus J. Simmons, has brought suit under the Civil Rights Act, 42 U.S.C. § 1983, to seek redress against several public officials for two alleged wrongs done to him under color of state law. Jurisdiction is sought under 28 U.S.C. § 1343(3). He complains that certain of his property, principally land abutting a state airport, was taken by the defendants in violation of state law and in violation of the fifth amendment to the United States Constitution;! and he complains that the defen- dants caused him to be illegally arrested, prosecuted and convicted in the state court in violation of his federal civil rights, for cutting through a fence which the defendants 1 The fifth amendment to the United States Constitution provides in pertinent part: . nor shall private property be taken for public use, without just compensation.” 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, V. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1544%3A1. Public record. Not legal advice.