Petition for Writ of Certiorari — Simmons v. United States

Suprema Geurt, U.S.

~ FILED

) Qn212 80 FEB 2 7 2003

ee

In The

Supreme Court of the Gnited States

2

Vv

AUGUSTUS J. SIMMONS,

Petitioner,

VS.

UNITED STATES,

Respondent.

Sd

On Petition For Writ Of Certiorari

To The United States Court

Of Federal Claims

Sd

PETITION FOR WRIT OF CERTIORARI

.

AUGUSTUS J. SIMMONS,

- Petitioner Pro Se

| P.O. Box #1

Windsor, CT 06095

(860) 569-6714

POT RARE eR Ne

QUESTION PRESENTED

When the Government (F.A.A.) physically invaded,

appropriated, and converted petitioner’s private property

under exclusive authority of 49 U.S.C. § 44502, in addition

to a joint obligation under the contract of guaranty under

Federal Grant Agreement #9-06-009-5708 (1955), (49

U.S.C. § 47109), into an “overriding federal navigational

servitude” with the installation, operating, and mainte-

nance of navigational instrumentation for exclusive

jurisdictional control of all air traffic in, on, and around

Bradley Airport, Connecticut’s premier airport, creating a

public right of access to the airport — did the Government

lack authority to open the airfield to the public without

any obligation whatever to pay fair just compensation

under the eminent domain clause of the Fifth Amendment

to the United States Constitution under the logic of

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)?

ii

PARTIES TO PROCEEDING

Petitioner:

Augustus J. Simmons [petitioner-owner]

P.O. Box #1

Windsor, CT 06095 (860) 569-6714

Respondents:

United States Court of Federal Claims

717 Madison Place, N.W.

Washington, D.C. 20439 (202) 219-9561

William B. Lazarus, Esq. [Federal Aviation Adm.]

U.S. Department of Justice

P.O. Box 23795 — L’Enfant Plaza Station

Washington, D.C. 20026 (202) 274-7403

Paul K. Pernerewski, Jr., Esq.

[Commissioner Conn. Dept. of Transportation]

P.O. Box 317546

2800 Berlin Turnpike

Newington, CT 06131-7546 (860) 594-3000

ill

TABLE OF CONTENTS

Page

QUESTION PRESENTED..................cccescceesseeeereseeens i

PARTIES TO PROCEEDING .........00cccccscccscccsscesesveees ii

GH SIE ST EOD ences secccevcscscrecsesnvssoverscoseseeses iii

ye Oo Bias 6 iy yl -. Sern Vv

PETITION FOR WRIT OF CERTIORARI ................ 1

ED STI snvonssnvsngrvenssvensenshcceseonesentsossasseses 1

STATEMENTS OF JURISDICTION ...................066 1

STATUTES AND CONSTITUTIONAL PROVISIONS... 7

STATEMENT OF THE CASE...............sccccsscsccrsseeeees 8

REASONS FOR GRANTING WRIT.............::::eseeseees 10

yy eg ivy 26) 2 y 7. 01) . on rrrertertre 17

EE ED scnchivendyasscteescesasyeasetesanserssnrsonsesoans 19

CE EIIN ov ssceresssnvesvsconesscsecevevcnessessoensessssoneeseoes 21

AST TOM OO wp

iv

APPENDIX EXHIBITS

Appeals Court Decision ....................ccccccssssseseeees App. 1

CIE OE CIE CIE re ccccccnssscsccsesoncepeectevscensvronis App. 4

1955 Grant Agreement ...................cccccccsssssseseees App. 12

Be II sihisciihaiiidindhucstipapiecsnniehniainisinasianinininadin App. 18

Oe I iictacinieisintincitniarnntsnithiinitentetersdanaciehinn App. 29

Withdrawal (Rogin-Hirtle)................ccccceeseeeeeeeee App. 32

Return Funds to Treasury.................:cccesseseeeeees App. 34

By Bre 6 are I icisssctsccrctensincnsnernsviccinimsnnas App. 36

Ne I iiiictiaieecninieiconicsdsiaiesonsiananenans App. 41

May, 2000 Conn. Supreme Ct. Order................. App. 54

Referee Letter Re: Notices..................:ssssseseseeees App. 55

TABLE OF AUTHORITIES

Page

CASES

Ackerman v. Union & New Haven Trust, 91 Conn.

GOO, 100 A.2B (1927)....-ccceccroscorsesssecssessvevensvceovonsvesssennes 21

Armstrong v. Manzo, 380 U.S. 545 (1965)........:ceceeeeeees 15

Baldwin v. Hale, 1 Wall 223 (1863)..............cceceeeeeseeeeeeeees 15

Basilicato v. Public Utility Control, 197 Conn. 320,

GBT Bi. De GB CAB) cncascessccscicrnicestccssciccesenccrsesavervesenenenserss 2

Benz v. Walker, 154 Conn. 74, 221 A.2d 841 (1866).......... 20

Brandriff v. Sellas, 40 Conn. Supp. 243 (1985)................ 24

Broca v. Broca, 181 Conn. 463, 435 A.2d 1016

(RID oiccsssnsissvatscshenctucipansinttnilinsgumeimactammaenamagis 2, 23

Bryan v. Reynolds, 143 Conn. 456, 123 A.2d 192

(RO oo aissicosecassnninesetonansininectemeeniatinienbmsnanaanes 19

Carter v. Carter, 147 Conn. 238, 159 A.2d 173

CR scccccssansensonecianvsarnshiesnantanseaniensimesuennstuceenneaeninainiien 24

Case v. Humphrey, 6 Conn. 130 (1826) ..........:ccseeseeeeerees 2

Chapel High v. Cavallaro, 141 Conn. 407 (1854)............04- 3

Chicago B. & O. R. Co. v. Chicago, 166 U.S. 226

CRITE) cnrcciccvesavcecontsnsntinaseiasanatiieandeditininimmmmnueaniaanntes 21

City of San Jose v. Great Oaks, 237 Cal.Rptr. 845

(Cal.App. 1 Dist. 1987).............cccccccccrcoresserreressrersssessorens 13

Clover v. Urban, 108 Conn. 13, 142 A 389 (1928).............. 2

Connecticut v. Doerr, 501 U.S. 1, 115 L.Ed.2d 1, 111

De DEO CI wctavceresnsscscescresmrcnsctvincnsetanonniannrnncees 13, 15

Corsino v. Grover, 148 Conn. 299, 170 A.2d 267

CRIED vccinisnvnecreseinssatnnocisiioreeanciancaionnonssiieneiseeoneevieremevetres 21

TABLE OF AUTHORITIES — Continued

Page

Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32

ie NUE UD TANT TIED nics cnsexnnadncaisntaiicnsetineiendidenibiiiamssanbahans 14

Grannis v. Ordean, 234 U.S. 385 (1914) ....... eee ceeeeeeeee 15

Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct.

SL, Tae Rae CD sr ipinsctiettnrecesettitniabenesntinitinns 10

Hartford National Bank & Trust v. Tucker, 178

Conn. 472, 423 A.2d 141 (1979) cert. denied 445

U.S. 904, 100 S.Ct. 1079, 63 L.Ed.2d 319 (1980) .......... 24

Harvey v. Elliot, 167 U.S. 409 (1897) ............ceeeeeeeceeeeeeeeees 15

Harwood v. U.S. Shipping, 300 F. 433 (Dist. Court,

Cooma. CIGD crises rktticssaccocamanentaaaaseniaaions 14

Kaluczky v. City of White Plains, 57 F.3d 202 (2d

COMP. Te Riciscxsicisevescsiusnciectsssansuabebtlanaeneesaaalimdgubnisies 3

Kenworthy v. Kenworthy, 180 Conn. 129 (1980) ................ 7

Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449

( RIFT s<.<ssrsaccsinvacseavanieetheteiniadlemsnanieiaaaaeeaia 12

Kukanskis v. Griffith, 180 Conn. 501 (1980)..................... 14

Liberty Bank v. Armstrong, 36 Conn. Supp. 629,

GBS A.BE E78 Ci irnrtawvistsmiictiitbaaen 19

Lowrance v. Achtyl, 20 F.3d 529 (2d Cir. 1994).................. 3

Lynch v. Household Fin., 405 U.S. 538, 92 S.Ct.

EGA, FE La Rte GO (Weed t<nsessstnevevnctintcrmianscianenn 14, 23

Manafort Bros. v. Kerrigan, 154 Conn. 112, 222

BiG BE CRG eievesttlsnseriscnisnvriscebatntiniiamnmaudiad 21

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

CRI) vs xssnsierscsushscansns caicseieneiesesnnedpnastetiiiiensaiaeanaanecnnaaien 2, 24

Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893,

GT Ep TI BS CSE cavissincnsceesncinnteastecineseceanaanine aman 15

Vii

TABLE OF AUTHORITIES -— Continued

Page

Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct.

DOE, GP Fe GE CRO eter ececiecescenccccciBencessinncsseneses 14

Mullane v. Central Hanover B. & T. Co., 339 U.S.

306, 94 L.Ed 865, 70 S.Ct. 652 (1950) ..........eeeeeeeeees 24

Natale v. Town of Ridgefield, 170 F.3d 258 (1999) ............ 3

North Georgia v. Di-Chem, 419 U.S. 601, 95 S.Ct.

Fa, BE ie CO Ce Hictnisinsceteceictainctintiliintsiaeseneicn 14

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

IIs vidlicceenesiababseibascnssdiidedeiebasededmeiuadaaeeieliameuntitineianiiin i

Penn Central Transp. v. New York City, 438 U.S.

I A ichncitiincotnnatdhadecuinibiabaaniacacdeacitiiaabasistuviphiabiteccnidi 21

Phelps v. United States, 274 U.S. 341, 47 S.Ct. 611,

is IED Accncietdiiednctechuisiniiodaioenbinandediiniiibenantanene 13

Regan v. Kirk, 140 Iowa 302, 118 N.W. 317 (1908)........... 18

Russo v. Watertown, 184 Conn. 30, 441 A.2d 56

fk ERAN I Steen aA wee WG ra Nain Ree ee oma OLN 20

Seaboard Airline R. Co. v. United States, 261 U.S.

299, 43 S.Ct. 354, 62 L.Ed. 664 (1923) ..................ccceeees 13

Shelton v. Wolthausen, 80 Conn. 599 (1908)..................0.. 20

Simmons v. Wetherall, #163875 (1970)..............0006 3, 15, 18

Simmons v. Wetherall, 180 Conn. 587 (1980).................... 10

Smith v. Tramel, 68 Iowa 488, 27 N.W. 471 (1886).......... 18

Sniadich v. Family Fin. Corp., 395 U.S. 337, 89

S.Ct. 1820, 23 L.Ed. 2d 349 (1969) ...........ceeseeseseeeeeeees 14

Strong v. Strong, 8 Conn. 408 (1831)...........c: ccseeeeeeeeeeeeeeees 2

United States v. Causby, 328 U.S. 256 (1946)................0 22

Viii

TABLE OF AUTHORITIES -— Continued

Page

United States v. Commodities Trading Corp., 339

U.S. 121, 70 S.Ct. 547, 94 L.Ed. 707 (1950) ..............00. 11

United States v. Dow, 357 U.S. 17, 78 S.Ct. 1038, 22

L.Ed.2d 1109 (1958)..............0.. stesssnseesncescesessesesssesrerenenes 12

United States v. Fuller, 409 U.S. at 488, 93 S.Ct. at

Se SPIE setersianhnihsntiatedenictpinpnbeinadinnineisienitsavsdnsTinmminiiitenanses 11

United States v. Miller, 317 U.S. 360, 63 S.Ct. 276,

Pe ne CHET EI cits liscnslintncensdietantechecaseanitiasinansins 10, 12

United States v. Reynolds, 397 U.S. 14, 90 S.Ct.

Fe Se Gs TE BOI cid iccccssicastinsstisuninsedeusitsenaseenceans 10

United States v. 564.54 Acres, 441 U.S. 506, 99

S.Ct. 1854, 60 L.Ed.2d 435 (1979) ......ccccceeescccessececeees 12

Village Creek Homeowner’s Assoc. v. Public Utilities

Comm., 149 Conn. 336, 170 A.2d 732 (1961).............000. 2

Washington Market v. Dist. of Columbia, 172 U.S. |

361, 43 L.Ed. 478, 19 S.Ct. 218 (1899) oo... eee eeeeee 17

Wenzel v. Danbury, 152 Conn. 675, 211 A.2d 683

[Aiea p inex cnbenasenccenbinetelbinacintaasisiniiniaidsabtaitatinbiamasaeaniankinnincendise 21

Williams v. Ives, 25 Conn. 568 (1857) ......c.ccccccccsceescceeeecees 3

Windsor v. McVeigh, 93 U.S. 274 (1876) ......ccccccccccecceseeeee 15

Wolfe v. Wallingford Trust, 124 Conn. 507, IA.2d

Py Se Pees Ee Ci iccrnscennceceusectanencinnincesinesocsnadnse 17

Young v. Margiotta, 136 Conn. 429, 71 A.2d 924

[Faye evavntalinayitionscbiatenkitainciniadinnbeitiaiaipaidanibduablicmssuclactuiaces 24

ix

TABLE OF AUTHORITIES — Continued

Page

Oe Ba idiicersascstacisciineicacciehanetenibcieesstediasasbannasine 8

i Be OOD, cacccninanicindeuesnnveniouicornassatineintomeneninses 5

ee eiiecinscinsininnineprasitiininvcninnicninnadiion i, 22

49 U.S.C. § 44502.....cccccceecssseeeeen ACNE Fa ara o i, 3

ee I EO ints ss seteencdinieannannesenbiaanenentaaboansaneens 20, 21

Rs Se aaah basidetindinicaintenntovniincnnepdintnaenanensnathicononseweds 16

I ceudiasbannumenbnaseaueiel passim

Fourteenth Amendment ....................s-scsreseseesereseseeee passim

MISCELLANEOUS

PRIS chidiiadeeennenennieen ssedihos anpeiecich cnsseteunaishaineinnsiiniinoniies 5

Federal Grant Agreement 9-06-009-5078 ................. 2, 3, 22

ee Oe ele Oy nitrccticssestarncsnsescracosssssesoonness 3

Uniform Act P.L. 91-646 (1971), 42 U.S.C. § 4601 et

ID. cndaaceisnbeniescentbecrquednnbbnaeniniameseventansinnentnarievedioutien 7, 11, 21

Practice Book Sec. 17-11 thru 17-17 Inc...................scseeeeee 19

Conn. Special Act #170 (1969).............ccssssssssssssseeeeees 20, 21

1

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT OF WASHINGTON, D.C.

Petitioner/owner Augustus Simmons requests that

this Court issue a writ of certiorari to review the decision

of the United States Court of Appeals for the Federal

Circuit which became final on January 10, 2003, wherein

the Appeals Court altered the decision of the Court of

Federal claims, dismissing the complaint without preju-

dice — to a dismissal with prejudice. (Appendix A).

,

v

OPINIONS BELOW

Augustus Simmons, Petitioner/owner filed a three

count complaint with the United States Court of Federal

Claims on April 10, 2002 seeking just compensation for an

airport navigational servitude imposed upon the owner —

WITHOUT JUST COMPENSATION.

The United States Court of Federal Claims - ORDER

— Docket #02-301L dismissing the complaint (Appendix I)

on August 6, 2002 without prejudice for lack of jurisdic-

tion, that contains the entire opinion is listed as (Appendix

B).

@

v

STATEMENTS OF JURISDICTION

This court has jurisdiction over all claims found upon

the constitution of the United States or ... upon any

contract, express or implied with the government of the

United States. 28 U.S.C. § 1491(a). This claim arises from

2

the breach by the defendants of their contractual obliga-

tion under Federal Grant Agreement #9-06-009-5078

(1955).

é

Vv

LACK OF JURISDICTION BY CONNECTICUT

SUPREME COURT IN SIMMONS V. WETHERALL

180 CONN 587 (1980).

SUBSTANTIVE DUE PROCESS

“Both the subject matter and parties must be before

the Court, and jurisdiction of one without the other will

not suffice, the two must concur or the judgment will be

void in any case in which the Court assumes to act.” “It is

an acknowledged principle . . . of every court in the world

that not only the decisions, but everything done under the

judicial process of a court, not having jurisdiction, are

IPSO FACTO VOID.” Broca v. Broca, 181 Conn. 463, 468,

435 A.2d 1016 (1980); Clover v. Urban, 108 Conn. 13, 17-

18, 142 A 389 (1928); Strong v. Strong, 8 Conn. 408, 412

(1831) quoting Martin v. Hunter’s Lessee, 14 U.S. (1

Wheat) 304, 364 (1916). Since there was no actual service

of process, any coerced judgment was “extra-judicial and

void.” See Case v. Humphrey, 6 Conn. at 139.

It is a basic tenet of our judicial system that unless a

duly authorized and directed officer makes service and

return of a writ of summons (or Attachment) and com-

plaint there is no MESNE process. Basilicato v. Public

Utility Control, 197 Conn. 320, 325, 497 A.2d 48 (1985);

Village Creek Homeowners Association v. Public Utilities

Comm., 149 Conn. 336, 339, 170 A.2d 732 (1961); Case v.

Humphrey, 6 Conn. 130, 139 (1826). Failure of the officer

3

to make attestation on the copy served or delivered invali-

dates the Attachment. 3 Conn. Supp. 407, 414 (1935).

Following attachment and service on the defendant,

the writ, properly endorsed to show the property attached,

must be returned to court, as in the case of any process,

failure to make return, or failure to make proper endorse-

ment on the writ makes the attachment invalid and the

officer - A TRESPASSER AB INITIO. Williams v. Ives, 25

Conn. 568 (1857); Chapel High v. Cavallro, 141 Conn. 407

(1954).

The exercise of the Connecticut Supreme Court

denying Petitioner/owner a day in court, a hearing in

damages for one (1) dollar compensation, forcing the owner

to subsidize the operations with lien-holders on the land

records transmogrifying Simmons v. Wetherall #163875

tort action into a Department of Transportation v. Wether-

all #163875 eminent domain action, on the land records

was an arbitrary, conscience shocking, oppressive, emi-

nent domain action in violation of the due process clause of —

the Fourteenth Amendment. See Kaluczky v. City of White

Plains, 57 F.3d 202, 211 (2d Cir. 1995) (quoting Lawrence

v. Achtyl, 20 F.3d 529, 537 [2d Cir. 1994)).

“Substantive due process standards are violated only

by conduct that is so outrageously arbitrary as to consti-

tute a gross abuse of governmental authority.” Natale v.

Town of Ridgefield, 170 F.3d 258, 263.

In determining whether a private right of action is

implicit under regulations promulgated (49 C.F.R. Part 24)

pursuant to Title III (42 U.S.C. §§ 4651-4655), and, 49

U.S.C. § 44502 wherein the F.A.A. was acting pursuant to

and under a 1955 grant agreement #9-06-009-5078,

4

wherein petitioner/owner was a third party beneficiary,

the relevant factors to be considered by the court is,

FIRST, Does the statute create a federal right in

favor of the plaintiff.

SECOND, Is there any indication of legislative

(congressional) intent, explicit or implicit, either

to create such a remedy or to deny one.

THIRD, Is it consistent with the underlying pur-

poses of the legislative scheme to imply such a

remedy for the plaintiff.

FOURTH, Is the cause of action one traditionally

relegated to state law, so that it would be inap-

propriate to infer a cause of action based solely

on federal law.

,

v

LACK OF JURISDICTION BY THE

DISTRICT COURT AND 2ND CIRCUIT

Where it is clearly evident the Connecticut Supreme

Court was acting without subject matter jurisdiction — or

the parties; without any record before the Superior Court

below and this information was put before District Court

Judge Cabranes by “affidavit” in civil H-81-778 (Simmons

v. Parizek) in Hartford on February 4, 1982, in addition to

the U.S. Attorney’s office making the statement to the

court that the federal agency (F.A.A.) never expended any

funds to acquire the subject property, the decrees, deci-

sions, injunctions, closing the federal doors to petitioner

were — off-the-mark — and made strictly to shield, shelter,

protect, conceal the federal agency from the Fifth Amend-

ment violation regards just compensation. From transcript

of February 4, 1982 at page 25 reads:

5

“Mr. Simmons: So I say I’m here on the exact

same issue. Follow the A.A.D.A. you haven’t fol-

lowed it out. Mr. Kelly (Asst. U.S. Atty.): Your

Honor, I would comment only that the A.A.D.A.

which I understand to be the Airport and Airway

Development Act of 1970, that is codified at 49

U.S. Code, Section 1701 et seq., that the A.A.D.A.

that Mr. Simmons refers to is a different statute

than the one which I have briefed and that it, in

fact, does not apply to the facts of this situation.

There was no expenditure of federal funds

under the A.A.D.A. to permit the taking on any

of the property involved in this case, to my

knowledge. Therefore, without seeing the case

that Mr. Simmons relies on, I would just submit

that the A.A.D.A. as a separate statute concern-

ing airport development does not apply to this

action.

Mr. Simmons: Your Honor, I ask that the secre-

tary give me an excerpt to that, because I'd like

that statement that he just made — they have not

participated in giving any money under the

A.A.D.A. as far as Mr. Simmons is concerned. Am

I quoting you fairly correct, counsel?

Mr. Kelly: Your Honor, it is my understanding

that the land that’s in question here, the parcels

of land on which there may be certain instru-

mentation landing system equipment was not ob-

tained by funds provided by F.A.A. under the

A.A.D.A. That is my understanding of the situa-

tion.

As far as the rest of Mr: Simmons comments in

response to my motion to dismiss, I would simply

stand on the memorandum as we filed it.

6

The Court (Cabranes, J.): Fine, thank you very

much. I will reserve decision on the motion of the

Federal Aviation Administration to dismiss this

action.

Excerpt from transcript of February 4, 1982 at P. 31

put the issue squarely before Hon. Cabranes.

Mr. Feingold: (Asst. Atty. Gen.) And that

brings me then to the part of the most recent af-

fidavit that was filed this morning with all coun-

sel, hand delivered to the Attorney General’s

office by Mr. Simmons in support of his claim

here.

The Court: You are referring to the docu-

ment entitled, “Affidavit Conflict of Interest,

Conspiracy, Fraud,” filed February 4, 1982 at

9:35 a.m.

Mr. Feingold: Right. Yes. The allegations

made in this affidavit are very, very serious.

They are attacking the practice of law by certain

members of the profession who are licensed to

practice in the state courts and in the United

States Federal courts. It is true that if fraud en-

tered into the consent that Mr. Simmons, on the

face of the stipulation, gave, it could vitiate that

agreement. It could also vitiate the judgment.

And I neglected to cite to your Honor and I

apologize for this omission,. but I would now cite

the Connecticut case — and for Mr. Simmons

benefit, with your Honor’s permission, may I

hand him a copy of the Connecticut decision that

I am now going to cite.

The Court: Please, go ahead.

7

Mr. Feingold: Mr. Simmons, I omit a copy for

the U.S. Attorney, Mr. Kelly, because I think he

could find it. We are citing the case of Kenworthy

v. Kenworthy, in 180 Connecticut 129, released

by the Connecticut Supreme Court in March of

1980. It is a per curium opinion. The pertinent

parts of this opinion are found on page 131, and

with the court’s permission, it’s quite short, I'll

leave out citations, but it’s important that I read

the statements.

“It is a well-established general rule that

even a judgment rendered by the court upon the

consent of the parties, which is in the nature of a

contract to which the court has given its ap-

proval, can subsequently be opened without the

assent of the parties if it is shown that the stipu-

lation, and hence the judgment, was obtained by

fraud, in the actual absence of consent, or by mu-

tual mistake.”

The Court: Thank you.

&

v

STATUTES AND

CONSTITUTIONAL PROVISIONS

Amendment V, Constitution of the United States “...

nor shall private property be taken for public use, without

just compensation.”

Amendment XIV, Constitution of the United States

“...nor shall any state deprive any person of life, liberty, or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.”

Under the Uniform Real Property Acquisition Act

(P.L. 91-646 (1971), 42 U.S.C. § 4601 et seq. Congress

8

made very clear the federal agency is accountable under

42 U.S.C. § 4628 that reads: “such acquisition shall for

purposes of the Uniform Act, be deemed an acquisition by

the federal agency having authority over such program or

project.”

rs

Vv

STATEMENT OF THE CASE

In this four decades old controversy between the

federal agency (F.A.A.), the state agency (C.D.O.T.), and

the private land owner whose real property became

necessary for airport purposes of the “Doolittle clear zone”,

now referred to as the runway protection zone at the end

of the primary runway at Bradley Airport, referenced in

the original 1955 agreement (Appendix C), has never been

addressed or complied with, nor mentioned.

Because the state agency is the party who tried

negotiation and failed, tried condemnation twice and failed

the courts treated the proceedings as a “taking” by the

state when, in reality, the federal agency was exclusively

responsible for the permanent navigation structures

installed in 1962, the “taking” was the exclusive responsi-

bility of the federal agency, and, the state agency did a

gross disservice to the F.A.A. by reverting ownership back

to the original owner in 1972, but, continued engaging in

leases with Uncle Sam — up to the present date.

Whether the state was successful or unsuccessful did

not shift the responsibility away from F.A.A. Past practice

has shown that in similar situations, the F.A.A. has

interceded with private property owners to negotiate

“leases” at several airports throughout the northeast

9

region, including the small state-owned Groton-New

London Airport.

Knowingly conspiring to and entering into decades

succession of “leases” as illustrated with the 1974 lease

(Appendix D) with the trespasser (Connecticut Dept. of

Transportation) — not the owner — is, was, and continues

as concealed intent to defraud against the owner who, in

lieu of receiving compensation from the leases has had to

continue to subsidize the servitude against him by paying

taxes after reverting; been subjected to intentional, delib-

erate “economic coercion” to subsidize the servitude with

lien-holders against the real property that is a condition

normally referred to as a “double whammy” — having to

continue paying out in lieu of receiving. (Appendix H)

The fact that the federal agency returned its allocated

funds for the project back into its general fund, the fact

that the Superior Court of Connecticut returned an uncon-

stitutional “verbal” slush fund back to the state treasury

on December 23, 1991 (a condition that pricks the balloon

of the claims court reference to a January 4, 1978 judg-

ment) is obvious factual evidence that the Doolittle clear

zone has never been acquired.

The attempted fallback on a purported decree of

private counsel Ed Rogin and Robert Hirtle, Esq’s by her

Honor Christine Miller of United States Court of Federal

Claims was of no consequence whatsoever where the

record is ultra clear the owner spurned the fraudulent

verbal offer, refused to tender any deeds and the private

counsel had no choice but to withdraw. (Appendix E and

F).

10

Due to the extraordinary unconstitutional and proce-

dural activity engaged in by the discharged and with-

drawn counsel, no MESNE process was initiated since

March 24, 1972. With no notices, no hearings, no docket

number, no valuations, no day in court means no free

lunch, no free flying for F.A.A., and, no basis for Simmons

v. Wetherall, 180 Conn. 587 (1980) that attempted to

shield, shelter, protect, the unconstitutional leases by the

(trespassor-lessor) to the (collussory-lessee).

In Griggs v. Allegheny County, 369 U.S. 84, 89, 82

S.Ct. 531, 7 L.Ed.2d 585 (1962), the Supreme Court found

that the local government operator of an airport had

“taken” an overflight easement from the plaintiff for which

compensation must be paid. Proof of permanent structures

for a public purpose by the federal agency (F.A.A.) with

exclusive jurisdiction over the Doolittle clear zone is not

hypothesizing, but, the actual fact that plaintiff/owner is

submitting to the Supreme Court for certiorari.

&»

4

REASONS FOR GRANTING WRIT

Fifth Amendment

1. Fifth Amendment — provides that private property

shall not be taken for public use without “just compensa-

tion” “and ‘just compensation’ means the full monetary

equivalent of the property taken. The owner is to be put in

the same position monetarily as he would have occupied if

his property had not been taken.” United States v. Rey-

nolds, 397 U.S. 14, 16, 90 S.Ct. 803, 805, 25 L.Ed.2d 12.

See also United States v. Miller, 317 U.S. 369, 373, 63

S.Ct. 276, 279, 87 L.Ed. 336.

11

2. “The constitutional requirement of just compensa-

tion derives as much content from the basic equitable

principles of fairness, United States v. Commodities

Trading Corp., 339 U.S. 121, 124, 70 S.Ct. 547, 549, 94

L.Ed. 707 (1950), as it does from technical concepts of

property law.” United States v. Fuller, 409 U.S. at 490, 93

S.Ct. at 803.

3. Incase at bar, the Government Navigation Project

required the acquisition of the fee and where the state had

made condemnation attempts twice, unsuccessfully, the

government must pay from date of taking.

4. That the United States has taken possession in

1962 of an area of 5.97 acres designated as parcel “C” on a

map of town of East Granby, CT land records at Vol. 12, p.

568 is — indisputable.

5. The United States has never tendered any pay-

ment to the owner of the land, is indisputable.

6. After title reverted to the owner in 1972 as a

result of two (2) null and void condemnations by the state,

no MESNE process by the United States or the Connecti-

cut Dept. of Transportation has been initiated to acquire

title to the subject property, since 3/24/72.

7. The government (F.A.A.) has never filed a decla-

ration of taking to acquire the necessary real property

interests declaring that said lands are thereby taken for

the use of the United States.

8. The Connecticut Dept. of Transportation, acting

as an agent of the United States under the Uniform

Relocation Assistance and Real Property Acquisition

Policies Act of 1970, 42 U.S.C. § 4601 et seq. attempted to

acquire the necessary acreage through a purchase in

12

December, 1977. On April 19, 1978 after those negotia-

tions had broken down with the owner rejecting the

fraudulent “verbal” offer; refused to tender any deeds; the

private counsel negotiators who were representing diverse

interests simultaneously, withdrew from representation

which the courts, both state and federal, should have

treated as the final legal chapter for the corrupt (Rogin-

Hirtle) law firm. .

9. The United States has the authority to take

private property for public use by eminent domain, Kohl v.

United States, 91 U.S. 367, 371, 23 L.Ed. 449, 451 (1876),

but is obliged by the Fifth Amendment to provide “just

compensation” to the owner thereof. “Just compensation”

courts held, means in most cases the fair market value of

the property on the date is appropriated. United States v.

564.54 Acres of Land, 441 U.S. 506, 511-513, 99 S.Ct.

1854, 1857-1858, 60 L.Ed.2d 435 (1979). “Under this

standard, the owner is entitled to received ‘what a willing

buyer would pay in cash to a willing seller’ at the time of

taking.” Id. at 511, 99 S.Ct. at 1857 (quoting United States

v. Miller) 317 U.S. 369, 374, 63 S.Ct. 276, 280, 87 L.Ed.

336 (1943).

When a taking occurs by physical invasion, the usual

rule is that the time of the invasion constitutes the act of

taking and “[iJt is that event which gives rise to the claim

for compensation and fixes the date as of which the land is

to be valued...” United States v. Dow, 357 U.S. 17, 22, 78

S.Ct. 1039, 1044, 22 L.Ed.2d 1109.

If disbursement of the award is delayed, the owner is

entitled to interest thereon sufficient to ensure that he is

placed in as good a position pecuniarily as he would have

13

occupied if the payment had coincided with the appropria-

tion. Phelps v. United States, 274 U.S. 341, 344, 47 S.Ct.

611, 612, 71 L.Ed. 1083 (1927); Seaboard Airline R. Co. v.

United States, 261 U.S. 299, 306, 43 S.Ct. 354, 356, 67

L.Ed. 664 (1923).

Federal Question

10. Question of whether property was taken without

due process or just compensation constitutes a “federal

question” with jurisdictional statute. 28 U.S.C.A. § 1331;

U.S.C.A. Const. Amends. 5, 14, § 1.

Mandatory Written Statements

11. Statutes providing that public entity may ac-

quire property by eminent domain only if it first makes

offer to property owner and provides him with written

statement explaining why offer is just, establishes “man-

datory” requirements which must be observed by any

public entity planning to initiate eminent domain proceed-

ings through resolution of necessity, City of San Jose uv.

Great Oaks Water Company, 237 Cal. Rptr. 845 (Cal. App.

1 Dist. 1987).

Constitutional Law-Attachments

12. State procedures for creating and enforcing

attachments are subject to the strictures of due process,

U.S.C.A. Const. Amend. 14.

Citing Connecticut v. Doerr, 501 U.S. 1, 115 L.Ed.2d 1,

111 S.Ct. 2105 (1991) at 2118 reads: the law concerning

attachments has rarely, if ever, required defendants to

suffer an encumbered title until the case is concluded

14

without any prior opportunity to show that the attachment

was unwarranted. Our cases have repeatedly emphasized

the importance of providing a prompt postdeprivation

hearing at the very least. Mitchell, 416 U.S. at 606, 94

S.Ct. at 1899; Di-Chem, 419 U.S. at 606-607, 95 S.Ct. at

722-723. Every state but one, moreover, expressly requires

a preattachment or postattachment hearing to determine

the propriety of an attachment.

Invalid Attachment

13. Attachment was held invalid where the court’s

attention was directed to the fact that the certificate of

attachment failed to state the name of the owner of the

property sought to be attached, as in case at bar.

Harwood v. U.S. Shipping Board E.F. Corp., 300 F. 433

(District Court, D. Connecticut March 22, 1924 — No. 1669).

Hearings

14. The opportunity to be heard at a meaningful

time and in a meaningful manner is constitutionally

required to meet currently accepted standards of proce-

dural due process in the area of property rights. Kukanskis

v. Griffith, 180 Conn. 501, See e.g. Fuentes v. Shevin, 407

U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), rehearing

denied, 409 U.S. 902, 93 S.Ct. 177, 342 L.Ed.2d 165 (1972);

Lynch v. Household Fin. Corp., 405 U.S. 538, 92 S.Ct.

1611, 31 L.Ed.2d 424, rehearing denied, 406 U.S. 911, 92

S.Ct. 1611, 31 L.Ed.2d 822 (1972); Sniadich v. Family Fin.

Corp. 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969);

Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40

L.Ed.2d 406 (1974); North Georgia Finishing, Inc. v.

15

Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751

(1975).

For more than a century the central meaning of

procedural due process has 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

notified.” Baldwin v. Hale, 1 Wall 223, 233. See Windsor v.

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

Grannis v. Ordean, 234 U.S. 385. It is equally fundamen-

tal that the right to notice and an opportunity to be heard

“must be granted at a meaningful time and in a meaning-

ful manner.” Armstrong v. Manzo, 380 U.S. 545-552.

Citing Connecticut v. Doerr, 111 S.Ct. 2105 (1991) at

2118: our cases have repeatedly emphasized the impor-

tance of providing a prompt post-deprivation hearing at

the very least. See also Matthews v. Eldridge, 424 U.S.

319, 343, 344, 96 S.Ct. 893, 907, 47 L.Ed.2d 18 (1976).

Where the legislative mandate for damages (Simmons

v. Wetherall, #163875) was docketed on January 2, 1970,

the fifteen days scheduled by the Superior Court and

referee Shapiro for hearings were “axed” by Rogin-Hirtle,

Esq’s in December 1977, the Supreme Court of Connecti-

cut in May, 2000 closed the doors to any possible hearings

with an order that no further proceedings (appointment of

referees) were to be submitted to that court, answers, to a

large degree why this eminent domain matter has excep-

tionally long whiskers. (Appendix J).

Trespassing - Intent to Defraud

15. No fraud is more odious than an attempt to

subvert the administration of justice, so odious that the

ia

16

unconstitutional “slush fund” submitted to the Superior

Court, — after discharge, withdrawal, and denial of deeds

was returned to the treasury on December 23, 1991

(Appendix G) with “no deeds,” “no MESNE process,” “no

hearings,” “no assessment of damages,” “no written state-

ments of compensation” to show for the bad faith, mali-

cious, unconstitutional attempted seizure of real property

with the unconstitutional attachments on the public land

records on June 2nd and 5th of 1978 by withdrawn private

counsel (Rogin-Hirtle, Esq’s), the purpose of which was a

self-serving scheme to “Pilfer” in excess of $113,000.00

from the rejected verbal offer on 9/25/80, in total disregard

of several senior lien-holders who were never notified or

served notice or paid and per C.G.S. § 48-21 must be

cleared off the land records — before — the owner can claim

any “legal” compensation.

Navigational Servitude

16. The servitude in order to safeguard the federal

government’s paramount control of air traffic used in

interstate commerce, limits the power of the states to

create conflicting interests based on local law.

Neither Connecticut, nor any other state, is at liberty

through local law to control the navigational servitude

which congress, in light of its extensive Commerce Clause

Authority over the nations airspace has prescribed rules

governing — “the taking” — of petitioner’s private property

to assure the public a free right of access to the airspace.

The navigational servitude is an expression of the

notion that the determination whether a taking has

occurred must take into consideration the important

17

public interest in the control of navigable airspace capable

of supporting public navigation.

,

STATUTE OF FRAUDS

An oral contract for the purchase of land is unenforce-

able under the Statute of Frauds. The wisdom of the

Statute is a matter within the control of the legislature,

not the judiciary. The Statute of Frauds was enacted to

prevent fraud, not to aid it, and should receive a reason-

able interpretation with that end in view by the Connecti-

cut Supreme Court.

A court of equity will not release an individual from

the operation of the Statute of Frauds, which requires that

interest in lands be created by an instrument in writing,

and impose an equitable lien upon land in favor of one who

makes improvements thereon, knowing that the title is in

another, will leave the party to the remedies, if any, which

a court of law provides, Washington Market Co. v. District

of Columbia, 172 U.S. 361, 43 L.Ed. 478, 19 S.Ct. 218.

The Statute of Frauds, in providing that no civil

action shall be maintained on an agreement for the sale of

real estate unless such agreement is in writing and signed

by the party to be charged, does not make void the con-

tract to which the limitation applies but affects only the

remedy, Wolfe v. Wallingford Bank & Trust Co., 124 Conn.

507, 1 A.2d 246, 117 ALR 932.

The Statute of Frauds is not intended to change, and

is not to be construed as changing, the general principle of

the law of contracts which require a consideration to

render a contract enforceable. The object and result of the

18

statute are merely to add an additional reauirement,

namely, that the contract or memorandum thereof be in

writing; and is supported by consideration.

Where in the case at bar there was [no] consideration,

none whatsoever, and the Supreme Court of Connecticut

has continually, for decades, impaired, obstructed, de-

feated, closed the doors in May, 2000 to every attempt by

the owner to have referees assigned to Docket #163875 to

determine consideration, guaranteed by the Fifth and

Fourteenth Amendments, this declaration warrants

constitutional compliance in — several — unconstitutional

airport ane nighway encroachments against petitioner.

In Smith v. Tramel, 68 Iowa, 488, 27 N.W. 471, 472

the court said: “an oral promise to pay the debt of another

cannot constitute an estoppel. If it could, all the mischief

would be let in at once which the Statute of Frauds was

designed to prevent.”

And in the case of Regan v. Kirk, 140 Iowa, 302, 118

N.W. 317, 318 which was an action on a contract within

the Statute of Frauds, wherein the lower court attempted

to submit to the jury the question of an implied contract

the court said: “This was clearly erroneous. The fact that

the promisee relies on an unenforceable promise does not

validate it. The contract itself must be such as is enforce-

able upon performance, evidence of an oral agreement to

‘answer the debt of another’ is inadmissible under the

statute, regardless of whether it is acted on or not.”

r

vy

19

A DAY IN COURT

In order to determine the validity-or-invalidity of the

decrees of the judiciary of the Superior Court relative to a

claimed [judgment] of discharged and withdrawn — and

corrupt (Rogin-Hirtle, Esq’s) one must refer to Chapter 17,

judgments in Practice Book, more specifically sections 17-

11, 17-12, and 17-13 relative to defendant’s offer, and, to

sections 17-14 offer of judgment, how made; 17-15 accep-

tance of plaintiffs offer; 17-16 plaintiffs offer not accepted;

17-17 offer of judgment and acceptance included in record.

[P.B. numbers in 1977/78 were 346, 347, 348].

A court cannot accept a stipulated judgment where it

lacks subject matter jurisdiction or where the stipulation

violates public policy — or — a verbal offer, and, certainly

under no circumstances should the case be decided with-

out an opportunity for each party to present evidence.

Liberty Bank for Savings v. Armstrong, (1980) 36 Conn.

Supp. 629, 423 A.2d 171. Quoting from Liberty Bank,

supra, at p. 631 a judgment by stipulation is not a judicial

determination of any litigated right but a contract of the

parties acknowledged in open court and ordered to be

recorded by a court of competent jurisdiction. Bryan v.

Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956).

Where there is not, was not, could not be any submis-

sions to the court of competent jurisdiction of the corrupt

practices engaged in by discharged and withdrawn counsel

(Rogin-Hirtle, Esq’s), the oral (verbal) offer did not com-

port with the Statute of Frauds, and, the owner never

accepted, assigned, used or took any of the fraudulent

offer, refused to tender any deeds, and the total and

complete abstinence from permitting any hearings in

damages in defiance of the legislative mandate (Special

20

Act #170 (1969)); in defiance of the congressional mandate

(C.G.S. § 48-17a, b, c) (1971) made it obvious the intent

was “to defraud” and against public policy.

That there is [no record] before the superior court;

that the Supreme Court of Connecticut acted arbitrarily;

the fact of nu record was submitted to Hon. John Daly in

1979 and no compensation can be paid without proceed-

ings (MESNE process) before the court and chief clerk

Lucian Jachamovitz submitted the citation of Shelton v.

Wolthausen, 80 Conn. 599 to Hon. Daly who denied pay-

ment from the unconstitutional, fraudulent “slush fund” to

discharged (Rogin-Hirtle, Esq’s), and, therein lies the

impasse. End of ball game.

The Superior Court is the court of original jurisdic-

tion.

Where there was no action founded, initiated, or

brought to the trial court, the denial of a day in court that

is so basic and fundamental to real property acquisition,

after decades of “bumbling,” mandates reversal under the

general jurisprudence of Connecticut practice as found in

the cite of Russo v. Watertown, 184 Conn. 30, 33-34, 441

A.2d 56 at 58 (1981) stating: “[iJt is in recognition and

implementation of the basic principle that due process of

law requires that the rights of no man shall be judicially

determined without affording him a day in court and an

opportunity to be heard.” Benz v. Walker, 154 Conn. 74,

77, 221 A.2d 841 (1966)

’ We have stated: “‘It is the settled rule of this jurisdiction, if

indeed it may not be safely called an established general jurisprudence

(Continued on following page)

21

Since the record does not indicate that all persons

having a legitimate interest in the subject matter are

parties to the action or were given reasonable notice

thereof, the trial court (Supreme Court) was without

jurisdiction. (Emphasis added) Wenzel v. Danbury, 152

Conn. 675, 211 A.2d 683 (1965). (Appendix K).

@

-

CONCLUSION

The pertinent words of the Fifth Amendment of the

Constitution of the United States are the familiar ones:

“nor shall private property be taken for public use, without

compensation.” That prohibition, of course, applies against

the States through the Fourteenth Amendment. Chicago,

B. & O. R. Co. v. Chicago, 166 U.S. 226, 239 (1897); Penn

Central Transportation Co. v. New York City, 438 U.S.

104, 122 (1978).

Where the exaction in violation of due process was a

“TAKING” by the federal agency, not the state agency, it

was obviously uncompensated — within the Amendments

proscription, is analogous to the appropriation of the use of

that no court will proceed to the adjudication of a matter involving

conflicting rights and interests until all persons directly concerned in

the event have been actually or constructively notified of the pendency

of the proceeding, and given reasonable opportunity to appear and be

heard, this firmly fixed limitation, which, in effect if not technically in

all cases is a jurisdictional one, is as binding in English practice as it is

with us.’” Manafort Bros. v. Kerrigan, 154 Conn. 112, 114, 222 A.2d 218

(1966); Corsino v. Grover, 148 Conn. 299, 309, 170 A.2d 267 (1961);

Ackerman v. Union & New Haven Trust Co., 91 Conn. 500, 508, 100

A.22 (1917).

22

private property in United States v. Causby, 328 U.S. 256

(1946).

The fact that the state courts reverted ownership and

title back to the original owner on the town of East

Granby, CT land records at Vol. 52, p. 242-243 on March

24, 1972 is — indisputable.

The fact that state mandated (Special Act #170

(1969)) and congressional mandate (CGS § 48-17a, b, c,

(1971)) as a result of P.L. 91-646 (1971) does not merely

provide a remedy but creates a vested property right; the

total and complete disregard for such legislation as to

affect rights actually obtained thereunder is a deprivation

of property without due process of law as guaranteed by

the Fifth and Fourteenth Amendments.

Where the right to 15 years of such compensation

having accrued from 1962-1977, when the state and

federal legislation was in force — cannot be destroyed,

disregarded, defeated impaired, obstructed by private

counsel negotiators in concert with the state supreme

court, giving retrospective effect with the rejected fraudu-

lent verbal offer, a violation of the rights guaranteed by

the Fifth and Fourteenth Amendments, and, after 40

years, close the state and federal doors to petitioner to —

“raise the federal question.”

Matters which belong, and, provided to the remedy by

the contract (Grant Agreement #9-06-009-5078 (1955))

cannot impair or deprive one of a vested property right.

The federal obligation under the above contract, based on

1955 values was 50% of allowable project cost and a

maximum obligation of $37,000.00. Current obligations

under § 47109 are 90%.

23

The right to just compensation was, is, and continues

as a vested property right. In regard to a clear zone

easement through condemnation in county court at law,

Judge Wisdom said in United States v. Brondum, 272 F.2d

at p. 646 - “the United States government has complete

discretion in determining whether to take a clearance

easement or to take an avigation easement.” The same

rule applies here.

Where the “federal question” was raised in a federal

court action (Simmons v. Wetherall, et al. #14806) and the

decision of Hon. Blumenfeld was appealed to the 2nd

Circuit Court of Appeals, docket #72-1541 and the appeals

court, remanded, relative to the land on which airport

navigational instrumentation was located and the appeals

court terminology stated if the — state had fenced it off

without paying him due compensation or instituting court

proceedings, it would seem that a deprivation of appel-

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

Lynch, 405 U.S. at 544, S.Ct. 1113. (472 F.2d 509).

The malicious, bad-faith coercion by Rogin-Hirtle,

Esq. on December 12, 1977, before filing an appearance on

12/13/77, made the coerced fraudulent claim to the owner

that — no offer could be made until two (2) federal court

actions are withdrawn, with prejudice, was arbitrary

intent to defraud, was countered with a hand-delivered

discharge on December 23, 1977, ending all authority,

right, jurisdiction as of 12/23/77, ending a devious scheme

to avoid paying compensation from date of taking — by

F.A.A.; illuminating the reason’s why the offer was verbal.

Discharged counsel cannot render any valid judg-

ments for the “doolittle clear zone” without subject matter

jurisdiction-or-the parties. Broca v. Broca, 181 Conn. 463,

24

468, 435 A.2d 1016 (1980); Martin v. Hunter’s Lessee, 14

U.S. (1 Wheat) 304, 364 (1916).

Cannot render any valid judgments until service is

made on all interested and necessary parties, since it is

service of process, not the attachment which tolls the

statute. Young v. Margiotta, 136 Conn. 429, 433, 71 A.2d

924 (1950).

Cannot render any valid judgments where process

must be served the requisite number of days before return

day, Brandriff v. Sellas, 40 Conn. Supp. 243 (1985).

Cannot render any valid judgments where an im-

proper return day (first Tuesday of July 1978) affects the

court’s jurisdiction. Hartford National Bank & Trust v.

Tucker, 178 Conn. 472, 423 A.2d 141 (1979) cert. denied

445 U.S. 904, 100 S.Ct. 1079, 63 L.Ed.2d 319 (1980).

Cannot render any valid judgments binding the

property of petitioner unless a means reasonably calcu-

lated to give notice to the parties has been employed.

Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 94

L.Ed 865, 70 S.Ct. 652 (1950).

Cannot render a valid judgment where compliance

with the statutes under Connecticut law is not to be —

“disregarded with impunity, nor waived or changed by the

courts.” Carter v. Carter, 147 Conn. 238, 242, 159 A.2d 173

(1960).

Cannot render a valid judgment where, after dis-

charge and withdrawal, had no authority, right, jurisdic-

tion to act [in any capacity], the owner was intentionally,

maliciously, with deliberate malevolence, “excluded” from

the transmogrified citation on the land records at Val. 59,

p. 661-662.

25 -

The United States Court of Federal Claims and the

United States Court of Federal Appeals cannot seek or

find protection behind a decree that was never submitted

to the court of competent jurisdiction (Superior), where the

discharged counsel withdrew rather than attempt specific

performance against the owner, and the transcript of

proceedings of June 7, 1982 before Hon. DuPont, wherein

the state (Atty. Gen’s office) challenged the Superior Court

with lack of jurisdiction of the subject matter — and the

parties, denying compensation to lien-holders was made a

matter of record with the Federal Claims Appeal Court,

such factual presentation — mandates — the federal agency

negotiate bargain, arrange, comply with “leases” from the

owner — not the trespasser.

Respectfully submitted,

AUGUSTUS J. SIMMONS,

Petitioner Pro Se

. P.O. Box #1

Windsor, CT 06095

(860) 569-6714

i

INDEX TO APPENDIX

Page

DECISION OF UNITED STATES COURT OF

APPEALS FOR THE FEDERAL CIRCUIT........ App. 1

ORDER OF THE UNITED STATES COURT

OF FEDERAL CLAIMG..........:.csssssssssssssessseesssees App. 4

GRANT AGREEMENT #9-06-009-5078 (1955)... App. 12

LEASE FROM CONNECTICUT DEPT. OF

TRANSPORTATION TO FEDERAL AVIA-

TION ADMINISTRATION (1974)............ceeeeeees App. 18

DENIAL OF DEEDS (4-19-1978) .....sessssessseeseee: App. 29

WITHDRAWAL OF PRIVATE NEGOTIA-

TORS ED ROGIN - ROBERT HIRTLE, ESQ’S

OE EEE TAA EE App. 32

RETURN OF UNCONSTITUTIONAL FUNDS

TO STATE TREASURY (12-23-1991) ......0..+++0 App. 34

_ FAA LETTER - NON PARTICIPATION.......... App. 36

ORIGINAL COMPLAINT..........cssssssssssssessseessees App. 41

CONN. SUPREME COURT ORDER RE

ne OTERO ae Te App. 54

REFEREE LETTER - NO NOTICES (7-18-

aaa App. 55

App. 1

APPENDIX A

NOTE: Pursuant to Fed. Cir. R. 47.6, this dis-

position is not citable as precedent. It is a public

record. This disposition will appear in tables

published periodically.

United States Court of Appeals

for the Federal Circuit

02-5163

AUGUSTUS J. SIMMONS,

Plaintiff-Movant,

v.

UNITED STATES,

Defendant-Appellee,

and

JAMES F. BYRNES, JR..,

Commissioner Connecticut Department of Transportation,

Respondent-Appellee.

DECIDED: January 10, 2003

Before RADER, BRYSON, and DYK, Circuit Judges.

PER CURIAM

August J. Simmons seeks review of the judgment of

the United States Court of Federal Claims, Simmons uv.

United States, 53 Fed. Cl. 131 (2002), dismissing his

claims as barred by the statute of limitations and the

doctrine of res judicata. We affirm.

App. 2

BACKGROUND

The Federal Aviation Administration (FAA), through

the State of Connecticut attempted to condemn real

property owned by Simmons in 1962. Following a lengthy

court battle in the state courts of Connecticut, judgment

was entered on January 4, 1978, pursuant to a stipulation

of the parties. The stipulation provided “that the State of

Connecticut take title to plaintiffs land in exchange for

approximately $ 385,000.00.” Simmons, 53 Fed. Cl. at 132.

Simmons thereafter filed a number of lawsuits in federal

court seeking to vacate the judgment. These lawsuits

culminated in a March 15, 1988, decision of the United

- States District Court for the District of Connecticut

enjoining Simmons “from filing in the United States

District Court for the District of Connecticut or any other

federal court any lawsuit in which he asserts the same

claims as were litigated, or as might have been litigated,

in the Connecticut Superior Court cases... . ” Simmons v.

Burns, No. H-87-732, slip op. at 15 (D. Conn. Mar. 15,

1988).

Simmons subsequently filed the present suit in the

Court of Federal Claims alleging with respect to the

condemnation: breach of contract; violation of due process;

and a taking of property without just compensation. The

government filed a motion to dismiss, which the court

granted pursuant to 28 U.S.C. § 2501, finding that the

action was barred because it was filed beyond the six-year

statute of limitations period and by the doctrine of res

judicata in light of the 1978 judgment.

eg ac EEE Rar

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App. 3

DISCUSSION

We review the Court of Federal Claims’ decision

granting the government’s motion to dismiss without

deference. O’Connor v. United States, 308 F.3d 1233, 1239

(Fed. Cir. 2002). Here Simmons has presented no argu-

ment for how this suit, filed decades after the claim first

accrued, meets the six-year statute of limitations require-

ment of 28 U.S.C. § 2501. The dismissal as time barred,

therefore, is affirmed.

The Court of Federal Claims also properly found that

the suit was barred by res judicata. Barring this type of

frivolous re-litigation is precisely the purpose of “res

judicata ... [which] relieve[s] parties of the cost and

vexation of multiple lawsuits, conserve[s] judicial re-

sources, and, by preventing inconsistent decisions, encour-

age[s] reliance on adjudication.” Allen v. McCurry, 449

U.S. 90, 94 (1990). For this additional reason, the dis-

missal is affirmed.

Contrary to the decision of the Court of Federal

Claims, Simmons, 53 Fed. Cl. at 134, (“dismiss[ing] the

complaint without prejudice”), the dismissal of Simmons’

complaint was a dismissal on the merits and thus operates

as a dismissal with prejudice.

The United States is directed to advise the United

States District Court for the District of Connecticut of

Simmons’ apparent violation of the court’s injunction entered

on March 15, 1988, by Simmons’ filing of the present suit.

For the foregoing reasons, the decision of the Court of

Federal Claims is affirmed.

App. 4

APPENDIX B

In the United States Court of Federal Claims

No. 02-301L

(Filed August 1, 2002)

2K 2K 26 2 ok 2 2 2K ok 2k 2k 2k oko ok KK RK KK Ok

AUGUSTUS J. SIMMONS, * Takings; motion to

pro se, * dismiss; statute of

* : . . _ . ‘ ;

Plaintiff, limitations; res judicata;

* injunction against filing

¥ * actions in federal court;

THE UNITED STATES, | ™°tion to amend.

Defendant. *

*

KKK KK KKK KKK KKK KK KKKK KKK

Augustus J. Simmons, Windsor, CT, pro se.

Barry A. Weiner, Washington, DC, with whom was

Assistant Attorney General Thomas L. Sansonetti, for

defendant. Frank San Martin, Federal Aviation Admini-

stration, Washington, DC, of counsel.

Assistant Attorney General Paul K. Pernerewski,

Hartford, CT, for Commissioner James F. Byrnes, Jr.,

Connecticut Department of Transportation.

ORDER

MILLER, Judge.

This case is before the court on defendant’s motion to

dismiss plaintiffs various claims related to the Federal

Aviation Administration’s 1962 condemnation of plaintiffs

real property located adjacent to Bradley International

Airport in Connecticut. At issue is whether plaintiffs

2c Aang palate IK GER Cina Pay set Reta mace

App. 5

claims are barred by the statute of limitations or by the

doctrine of res judicata. Argument is deemed unnecessary.

FACTS

On July 1, 1962, the Federal Aviation Administration

(the “FAA”), through the State of Connecticut, attempted

to condemn plaintiffs property located in East Granby,

Connecticut, for the purpose of expanding what is now the

Bradley International Airport. Plaintiff filed multiple

actions, eventually consolidated by the Connecticut Su-

preme Court, all challenging the legality of the occupation

of plaintiffs land and the state’s attempt to gain title to

the property. Pursuant to a stipulation by the parties,

judgment entered on January 4, 1978, providing that the

State of Connecticut take title to plaintiffs land in ex-

change for approximately $385,000.00.

Shortly thereafter, plaintiff unsuccessfully attempted

to vacate the judgment. Over the next decade, he pro-

ceeded to file a number of lawsuits, again alleging the

illegal occupation of his land, on various theories including

a taking in violation of the United States Constitution,

state law trespass and ejectment, and various federal

statutes. All of these cases were dismissed on principles of

res judicata and collateral estoppel.

On March 15, 1988, the Hon. José A. Cabranes,

United States District Judge, United States District Court

for the District of Connecticut, sought to “put an end to

plaintiffs vendetta and relieve its victims from the burden

of vexatious relitigation of these issues.” Simmons uv.

Burns, No. H-87-732 (JAC), slip. op. at 13 (D. Conn. Mar.

15, 1988). He entered an injunction enjoining plaintiff

from filing in any federal court any state or federal claim

App. 6

predicated upon the condemnation of plaintiffs land in

East Granby, Connecticut. Jd. at 15.

Unchastened by either past defeats or the injunction,

plaintiff now sues in the United States Court of Federal

Claims, alleging in a three-count complaint that the

condemnation of his property in East Granby constituted

(1) a breach of contract; (2) an illegal exaction in violation

of due process; and (3) a taking of property without just

compensation. By separate motion, plaintiff seeks leave to

amend the complaint, predicating jurisdiction on 28 U.S.C.

§ 1331 (2000), to include a pendant claim against James F.

Byrnes, Jr., Commissioner, Connecticut Department of

Transportation. Both defendant and the putative state

defendant move to dismiss under RCFC 12(b)(1) on the

ground that the statute of limitations bars plaintiffs

claims or, alternatively, under RCFC 12(bX6) on the

ground that the claims are barred by the doctrines of res

judicata and collateral estoppel.”

* Inexplicably, neither defendant nor Commissioner Byrnes moves

to enforce Judge Cabranes’s injunction, instead invoking the statute of

limitations and the doctrine of res judicata. They thereby do a disser-

vice to themselves. Because the statute of limitations is jurisdictional,

the court first must address that issue. See Steel Co. v. Citizens fora

Better Env’'t, 523 U.S. 83, 95 (1998). However, enforcing the injunction

would bar plaintiffs claims on the merits, whereas a dismissal under

the statute of limitatizas operates as a dismissal without prejudice, see

KCFC 41(b); Indium Corp. of Amer. v. Semi-Alloys, Inc., 781 F.2d 879,

881 (Fed. Cir. 1985).

Defendant does rely on Judge Cabranes’s order as a ground for

barring the claims on the merits. Had defendant moved to enforce the

judgment the only determination required would have been whether

the terms of the injunction were applicable to plaintiff and his claims,

and an order could have entered barring plaintiffs claims on the

merits. Needless to say, defendant would have been spared briefing the

(Continued on following page)

App. 7

DISCUSSION

1. Standards

Whether a court possesses subject matter jurisdiction

over a claim depends upon the “court’s general power to

adjudicate in specific areas of substantive law.” Palmer v.

United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999). A

motion to dismiss under RCFC 12(b)(1) may challenge the

sufficiency of the jurisdictional allegations in the com-

plaint. When a federal court hears such a facial challenge,

“its task is necessarily a limited one.” Scheuer v. Rhodes,

416 U.S. 232, 236 (1974). “The issue is not whether a

plaintiff will ultimately prevail but whether the claimant

is entitled to offer evidence to support the claims.” Jd. The

burden of proving that the Court of Federal Claims has

subject matter jurisdiction over a claim rests with the

party seeking to invoke its jurisdiction. McNutt v. Gen.

Motors Acceptance Corp., 298 U.S. 178, 189 (1936);

Trauma Servs. Group v. United States, 104 F.3d 1321,

1324 (Fed. Cir. 1997). The court is mindful that complaints

filed by pro se plaintiffs are held “to less stringent stan-

dards than formal pleadings drafted by lawyers.” Haines v.

Kerner, 404 U.S. 519, 520 (1972) (per curium). Neverthe-

less, the leniency afforded pro se litigants with respect to

mere formalities does not relieve them of jurisdictional

requirements. Kelley v. Sec., United States Dep’t of Labor,

812 F.2d 1378, 1380 (Fed. Cir. 1987).

“torturous” history of the case of which it complains. Def.’s Br. filed

June 10, 2002, at 4.

App. 8

2. Statute of Limitations

Civil actions brought against the United States in the

Court of Federal Claims must be filed within six years of

accrual. 28 U.S.C. § 2501 (2000). Because the limitations

period is an express condition of the Government’s consent

to be sued, the court lacks power to toll the running of the

statute of limitations on equitable grounds. Hart v. United

States, 910 F.2d 815, 818-19 (Fed. Cir. 1990). A cause of

action accrues when all of the events necessary to fix the

alleged liability of the Government have occurred and the

claimant legally is entitled to bring suit. Catawba Indian

Tribe of So. Carolina v. United States, 982 F.2d 1564, 1570

(Fed. Cir. 1993); Hopland Band of Pomo Indians v. United

States, 855 F.2d 1573, 1577 (Fed. Cir. 1988). Ignorance of

all the facts does not alone suffice to toll the statute of

limitations. Plaintiff need only be aware of sufficient facts

to know a wrong occurred. Japanese War Notes Claimants

Assoc. v. United States, 178 Ct. Cl. 630, 634, 373 F.2d 356,

359 (1967). It is not necessary that plaintiff be fully

appraised of the merits of the claim or the extent of

damages before filing suit. Boling v. United States, 220

F.3d 1365, 1371 (Fed. Cir. 2000) (rejecting proposition that

filing of lawsuit can be postponed until full extent of

damages is known); Catawba, 982 F.2d at 1572 (holding

that misunderstanding as to meaning of law does not toll

accrual of cause of action when all relevant facts are

known).

According to his complaint, the physical invasion of

plaintiffs property occurred approximately 40 years ago,

on July 1, 1962. In his opposition brief, plaintiff offers only

1) the astonishing proposition that the filing of a lawsuit

will stop the running of the period of time necessary for a

party to perfect title through prescriptive easement or

App. 9

adverse possession; 2) the argument that attachment of

his land was rendered invalid because the original sum-

mons issued by the Connecticut Attorney General named

plaintiffs property, but failed to name plaintiff as the

owner of that property; and 3) the fact that plaintiff also

attempted to dissolve certain attachments to the property

in 1996. These averments do not establish that plaintiff's

claims accrued within the six years prior to filing, ie.,

after April 10, 1996. The court has reviewed the complaint

and cannot find one single allegation of conduct or fact not

known to plaintiff before the. accrual date. Defendant's

motion to dismiss plaintiffs claims as barred by the

statute of limitations therefore is granted.

3. Res judicata

Were jurisdiction present to consider plaintiffs claims,

they would be barred by operation of the doctrine of res

judicata. Under the doctrine of claim preclusion, or res

judicata, “a final judgment on the merits of an action

precludes the parties . . . from relitigating issues that were

or could have been raised in that action.” Federated Dep't

Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). Claim

preclusion attaches when (1) the court’s prior decision is a

valid and final judgment; (2) the suit before the court

involves the same claim or cause of action as in the prior

decision; (3) the prior decision was on the merits of the

case; and (4) the same parties are involved in both cases.

Americo Mosca v. United States, 224 Ct. Cl. 678, 679

(1980). The Supreme Court has attached significant

importance to assuring the nonmovant has had a “full and

fair opportunity to litigate” the claim below. See Poyner v.

Murray, 508 U.S. 931 (1993). The court has examined the

filings to this end.

App. 10

In 1978, pursuant to a settlement, judgment was

entered regarding plaintiffs claim concerning the con-

demnation of the subject property. A judgment entered

into by agreement or consent is a valid and final judgment.

Conn. Pharmaceutical Ass’n v. Milano, 191 Conn. 555, 558

(1983). The Supreme Court of Connecticut already has

found that this agreement was valid and on the merits.

See Simmons v. Wetherall, 180 Conn. 587, 588 (1980).

Indeed, Judge Cabranes already has characterized plain-

tiffs federal lawsuits as improper collateral attacks on a

valid state court judgment and, for this reason, imposed

an injunction on plaintiff against further litigation of this

matter. In addition to Judge Cabranes, other state and

federal trial and appellate courts already have determined

that plaintiff has had more than a full and fair opportu-

nity to litigate his property claims and that merely chang-

ing the legal theory of the case or the name of the

defendant does not provide any justification to reopen the

1978 settlement. Dismissal on res judicata grounds there-

fore is appropriate.

CONCLUSION

Accordingly, based on the foregoing,

IT IS ORDERED, as follows:

1. Defendant’s motion to dismiss under RCFC

12(bX1) is granted, and the Clerk of the Court shall

dismiss the complaint without prejudice for lack of juris-

diction.

2. Plaintiffs Motion for Leave of Court To Amend

Jurisdiction with the Addition of 28 U.S.C. § 1331 is

denied as futile. See Mitsui Foods v. United States, 867

App. 11

F.2d 1401, 1403-04 (Fed. Cir. 1989) (futility of amendment

may justify denial of motion for leave to amend).

3. Because plaintiff has abused the process of the

court by filing a complaint with no legitimate basis for

jurisdiction on a claim that has been adjudicated previ-

ously, defendant is directed to make no response to any

paper filed in the Court of Federal Claims by this plaintiff

under any docket number or caption unless ordered to do

so by the court. Defendant will not be defaulted in any

case in which it complies with this order. The court will

advise defendant if an answer or other pleading is re-

quired; absent such advice, the prescribed times within

which defendant would be required to answer or otherwise

plead are suspended indefinitely. See Sterner v. United

States, 2 Cl. Ct. 253, 255 (1983).

/s/ Christine O.C. Miller

Ckristine Odell Cook Miller

Judge

App. 12

APPENDIX C

DEPARTMENT OF COMMERCE

CIVIL AERONAUTICS ADMINISTRATION

WASHINGTON 25

GRANT AGREEMENT

Part I — Offer

CONTRACT NO. CICA Date of Offer

36-A January 12, 1955

Bradley Field Airport

Project No.

09-06-009-507

TO: STATE OF CONNECTICUT

(herein referred to as the “Sponsor”)

FROM: The United States of America (acting through the

Administrator of Civil Aeronautics, herein re-

ferred to as the “Administrator”)

WHEREAS, the Sponsor has submitted to the Administra-

tor a Project Application dated December 2, 1954 for a

grant of Federal funds for a project for development of the

Bradley Field Airport (herein called the “Airport”) together

with plans and specifications for such project, which

Project Application, as approved by the administrator, is

hereby incorporated herein and made a part hereof; and

WHEREAS, the Administrator has approved a project for

development of the Airport (herein called the “Project”)

consisting of the following described airport development:

“Acquisition of land for ‘Doolittle’ clear zones

both ends Runway 6-24; acquisition of land and

navigation easements for protection of ap-

proaches 6-24, 19, 33”.

App. 13

all as more particularly described in the property map and

plans and specifications incorporated in the said Project

Application;

NOW THEREFORE, pursuant to and for the purposes of

carrying out the provisions of the Federal Airport Act (60

Stat. 170; Pub. Law 377, 79th Congress), and in considera-

tion of (a) the Sponsor’s adoption and ratification of the

representations and assurances contained in said Project

Application, and its acceptance of this Offer, as hereinafter

provided, and (b) the benefits to accrue to the United Stats

and the public from the accomplishment of the Project and

the operation and maintenance of the Airport, as herein

provided.

THE ADMINISTRATOR, FOR AND ON BEHALF OF

THE UNITED STATES HEREBY OFFERS AND

AGREES to pay, as the United States’ share of the cost in

accomplishing the project, 50 percent of all allowable

project costs subject to the following terms and conditions:

1. The maximum obligation of the United

States payable under this Offer shall be

$37,000.00

2. The Sponsor shall

(a) begin accomplishment of the Project

within a reasonable time after accep-

tance of this Offer, and

(b) carry out and complete the Project in ac-

cordance with the terms of this Offer,

and the Federal Airport Act and the

Regulations promulgated thereunder by

the Administrator in effect on the date

of this Offer, which Act and Regulations

App. 14

are incorporated herein and made a part

hereof, and

(c) carry out and complete the Project in ac-

cordance with the plans and specifica-

tions and property map incorporated

herein as they may be revised or modi-

fied with the approval of the Adminis-

trator or his duly authorized representa-

tives.

The Sponsor shall operate and maintain the

Airport as provided in the Project Applica-

tion incorporated herein.

The maximum amounts of building space

which the Sponsor shall be obligated to fur-

nish civil agencies of the United States for

the purposes and on the terms and condi-

tions states in Paragraph 9 of Part III of the

Project Application dated May 18, 1949, for

Project No. 9-06-009-906-009-801 shall be as

set forth in the attached schedule of maxi-

mum space requirements which is incorpo-

rated herein and made a part hereof.

Any misrepresentation or omission of a ma-

terial fact by the Sponsor concerning the Pro-

ject or the Sponsor’s authority or ability to

carry out the obligations assumed by the

Sponsor in accepting this Offer shall termi-

nate the obligation of the United States, and

it is understood and agreed by the sponsor in

accepting this Offer that if a material fact ©

has been misrepresented or omitted by the

Sponsor, the Administrator on behalf of the

United States may recover all grant pay-

ments made.

App. 15

6. The Administrator reserves the right to

amend or withdraw this Offer at any time

prior to its acceptance by the Sponsor.

7. This Offer shall expire and the United States

shall not be obligated to pay any of the al-

lowable costs of the Project unless this Offer

has been accepted by the Sponsor within 60

days from the above date of Offer or such

longer time as may be prescribed by the Ad-

ministrator in writing.

8. It is understood and agreed that the areas

delineated on Exhibit “A” as ‘Doolittle’ clear

zones at each of the Runway 6-24 will be

maintained by the Sponsor completely free

from all structures except these required for

aids to air navigation, unless otherwise au-

thorized by the Administrator. |

9. It is further understood and agreed by and

between the parties hereto that the Project

Application dated May 18, 1949 for Project

No. 9-06-009-801 is hereby amended by de-

leting the last sentence of Paragraph 7 of

Part III thereof and inserting in lieu thereof

the following:

| “The airport approach standards to be

followed in performing the covenants

contained in this paragraph shall be

those established by the Administrator

in Office of Airports Drawing No. 814,

dated April 26, 1950, unless otherwise

authorized by the Administrator”.

The Sponsor’s acceptance of this Offer and ratification and

adoption of the Project Application incorporated herein

App. 16

shall be evidenced by execution of this instrument by the

Sponsor, as hereinafter provided, and said Offer and

acceptance shall compromise a Grant Agreement, as

provided by the Federal Airport Act, constituting the

obligations and rights of the United States and the Spon-

sor with respect to the accomplishment of the Project and

the operation and maintenance of the Airport. Such Grant

Agreement shall become effective upon the Sponsor’s

acceptance of this Offer and shall remain in full force and

effect throughout the useful life of the facilities developed

under the Project but in any event not to exceed twenty

years from the date of said acceptance.

UNITED STATES OF AMERICA

THE ADMINISTRATOR OF

CIVIL AERONAUTICS

By /s/ Ora W. Young

Regional Administrator,

Region One

Part II — Acceptance

The STATE OF CONNECTICUT does hereby ratify and

adopt all statements, representations, warranties, cove-

nants, and agreements contained in the Project Applica-

tion and incorporated materials referred to in the

foregoing Offer and does hereby accept said Offer and by

such acceptance agrees to all of the terms and conditions

thereof.

Executed this 1st day of February 1955.

STATE OF CONNECTICUT

(Name of Sponsor)

By /s/ K.H. Ringrose

Title Director of Aeronautics

App. 17

(SEAL)

Attest: /s/ Mildred P. Allen

Title: Secretary of State

CERTIFICATE OF SPONSOR’S ATTORNEY

I, Jack Rubin, acting as Attorney for STATE OF CON-

NECTICUT, ge—here—te—certify: (herein referred to as

“Sponsor”), to hereby certify:

That I have examined the foregoing Grant Agreement

and the proceedings taken by said Sponsor relating

thereto, and find that the Acceptance thereof by said

sponsor relating thereto, and find that the Acceptance

thereof by said Sponsor has been duly authorized and that

the execution thereof is in all respects due and proper and

in accordance with the laws of the State of Connecticut,

and further that, in my opinion, said Grant Agreement

constitutes a legal and binding obligation of the Sponsor in

accordance with the terms thereof.

Dated at HARTFORD, CONNECTICUT this 1st day of

February, 1955.

/s/ Jack Rubin

Title Assistant

Attorney General

App. 18

APPENDIX D

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, Department

of Transportation whose address is 24 Wolcott Hill, Weth-

ersfield, Connecticut, 06109 for itself and its heirs, execu-

tors, administrators, successors, and assigns, hereinafter

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:

App. 19

As contained in Exhibit I attached hereto and made a

part hereof.

a. Together with a right-of-way for ingress to and

egress from the premises; a right-of-way or rights-of-way

for establishing and maintaining a pole line or pole lines

for extending electric power, and telecommunications

facilities to the premises; and right-of-way for subsurface

power, communication and water liens to the premises; all

rights-of-way to be over the said lands and adjoining lands

of the lessor, and unless herein described by metes and

bounds, to be by routes reasonably determined to be the

most convenient to the Government.

b. And the right of grading, conditioning, and install-

ing drainage facilities, and seeding the soil of the prem-

ises, and the removal of all obstructions from the premises

which may constitute a hindrance to the establishment

and maintenance of air navigation and telecommunica-

tions facilities.

c. And the right to make alterations, attach fixtures,

and erect additions, structures, or signs, in or upon the

premises hereby leased, which fixtures, additions, or

structures so placed in or upon, or attached to the said

premises shall be and remain the property of the Govern-

ment, and may be removed upon the effective date of

termination of this lease, or within 90 days thereafter, by

or on behalf of the Government, or its grantees, or pur-

chases of said fixtures, additions, structures, or signs.

2. This lease may, at the option of the Government,

be renewed from year to year and otherwise upon the

terms and conditions herein specified. The government’s

option shall be deemed exercised and the lease renewed

each year for 1 year unless the Government gives the

App. 20

lessor 30 days written notice that it will not exercise its

option before this lease or any renewal thereof expires;

PROVIDED, that no renewal thereof shall extend the

period of occupancy of the premises beyond the 30th day of

June 1994;

4. The Government may terminate this lease, in

whole or in part, at any time by giving ninety days notice

in writing to the lessor, and no rental shall accrue after

the effective date of termination. Said notice shall be

computed commencing with the day after the date of

mailing.

5. No Member of Congress or Resident Commis-

sioner shall be admitted to any share or part of this lease,

or to any benefit to arise therefrom. Nothing, however,

herein contained, shall be construed to extend to any

incorporated company if the lease be for the general

benefit of such corporation or company.

6. The lessor warrants that no person or selling

agency has been employed or retained to solicit or secure

this lease upon an agreement or understanding for a

commission, brokerage, percentage or contingent fee,

except bona fide employees or bona fide established

commercial or selling agencies maintained by the lessor

for the purpose of securing business. For breach or viola-

tion of this warranty, the Government shall have the right

to annul this lease without liability, or in its discretion to

deduct from the contract price or consideration, the full

amount of such commissions, brokerage, percentage, or

contingent fee.

7. The Government shall surrender possession of the

premises upon the expiration or the effective date of

termination of this lease. If the lessor, by written notice at

App. 21

least thirty days before the expiration or the effective date

of termination requests restoration of the premises, the

Government at its option shall within ninety (90) days

thereafter, or within such additional time as may be

mutually agreed upon, either (1) restore the premises to

as good condition as that existing at the time of the Gov-

ernment’s entering upon the premises under this lease

(changes to the premises in accordance with paragraph 1

above, ordinary wear and tear, damage by natural ele-

ments and by circumstances over which the Government

has no control, excepted) or (2) make an equitable adjust-

ment in the lease amount for the cost of such restoration of

the premises or the diminution of the value of the prem-

ises if unrestored, whichever is less. Should a mutually

acceptable settlement be made hereunder, the parties

shall enter into a supplemental agreement hereto effecting

such agreement. Failure to agree to any such equitable

adjustment shall be a dispute concerning a question of fact

within the meaning of Clause 8 of this lease.

8. (a) Except as otherwise provided in this contract,

any dispute concerning a question of fact arising under

this contract which is not disposed of by agreement shall

be decided by the Contracting Officer, who shall reduce his

decision to writing and mail or otherwise furnish a copy

thereof to the lessor. The decision of the Contracting

Officer shall be final and conclusive unless within 30 days

from the date of receipt of such copy, the lessor mails or

otherwise furnishes to the Contracting Officer a written

* Subparagraphs a and b only

App. 22

appeal addressed to the Secretary, Department of Trans-

portation. The decision of the Secretary or his duly author-

ized representative for the determination of such appeals

shall be final and conclusive unless determined by a court

of competent jurisdiction to have been fraudulent, or

capricious, or arbitrary, or so grossly erroneous as neces-

sarily to imply bad faith, or not supported by substantial

evidence. In connection with any appeal proceeding under

this clause, the lessor shall be afforded an opportunity to

be heard and to offer evidence in support of its appeal.

Pending final decision of a dispute hereunder, the lessor

shall proceed diligently with the performance of the

contract and in accordance with the Contracting Officer's

decision.

(b) This “Disputes” clause does not preclude consid-

eration of law questions in connection with decisions

provided for in paragraph (a) above: Provided, That

nothing in this contract shall be construed as making final

the decision of any administrative official, representative,

or board on a question of law.

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 prop-

erty described herein, and that it is authorized to grant to

the Government the rights and interests set forth herein.

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

way herein granted shall insure to the benefits of the

Government and its duly authorized agents, representa-

tives, contractors and employees.

App. 23

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

erected on the property leased hereby or on adjacent

property of the Lessor, any structure or obstruction of

whatsoever kind or nature as will interefere [sic] with the

proper operation of the facilities to be installed by the

Government under the terms of this Lease unless consent

thereto shall first be secured from the Government in

writing. Further, in order to insure the continuing proper

operation of the ALS Facility, the Lessor shall prevent the

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

brush that will cause that structure or natural growth to:

(a) protrude an area hereinafter referred to as

the light plane. For obstruction clearance

purposes this light plane is defined as rec-

tangular in shape, 400 feet wide and sym-

metrically located about the ALS centerline;

it shall start at the landing threshold and

extend 200 feet beyond the approach end of

the system.

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

the system from any point on a surface, one-

half degree below the glide path and extend-

ing 250 feet each side of the centerline, up to

1600 feet in advance of the outermost light

in the system.

13. In order to insure the continuing proper opera-

tion of the Instrument Landing System(s), the Lessor

agrees that certain critical and no-parking areas, which

are shown on the attached Drawing No. 1-A-3076, shall be

established in the vicinity of the localizer and glide slope

- facilities.

Where the critical areas lie within the bounds of the

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

App. 24

erected any structure of any kind or nature nor to perform

or allow to be performed any excavating, grading or

planting operations within these areas, without the prior

concurrence of the Government. Where the critical areas

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

extend every effort to negotiate agreements with the

property owners involved covering these restrictions.

In the event of natural erosion, the Lessor agrees to

perform corrective grading, planting and excavation

within the critical area. Such work shall be accomplished

during a period which is mutually agreeable to both Lessor

and Lessee. Where the critical and no-parking areas lie

within the bounds of the airport, the Lessor agrees not to

permit the presence of parked aircraft, vehicles or equip-

ment within the critical and no-parking areas, or of free

moving aircraft or vehicles within the critical areas which

are not under the control of tower personnel when the

facilities are in operation. The Lessor agrees to provide

and maintain no-parking signs within these areas, when

required.

Where the critical and no-parking areas lie outside

the bounds of the Airport, the Lessor agrees to extend

every effort to negotiate agreements with the property

owners involved granting the Lessor the right to establish

and maintain no-parking signs on their properties within

these areas.

The Lessor further agrees to provide and maintain

markings as required, on all paved areas to delineate the

limits of the critical area.

14. The Government waives the requirement for

radio control of traffic in the vicinity of Runway 6 Local-

izer on the North Perimeter Road.

App. 25

15. For and in consideration of the benefit to the

Bradley International Airport and the general public using

same, the Lessor agrees to and grants to the Government

all terms and conditions stated herein at no cost.

16. This lease will supersede License DOT-FA73NE-

0308 on commissioning of the CAT-II ILS system.

17. The Lessor further agrees that in the event that

relocation or modification of the FAA’s facilities associated

with air navigation or components thereof hereinbefore

described is made necessary by airport improvements or

changes made or caused to be made by the airport owner

(the term “airport owner” used herein refers to the politi-

cal subdivision or other competent authority responsible

for the airport operation and capital improvements), the

costs of such relocation or modification shall be chargeable

to the Lessor; that the Government shall have the exclu-

sive right to determine how the relocation or modification

project shall be accomplished including, but not limited to,

the engineering, site selection, procurement of equipment;

construction, installation, testing, flight inspection and

recommissioning of the facility; that upon submission by

the Government of an estimate of the relocation or modifi-

cation costs, the Lessor shall transfer to the Government

the funds required for the relocation or modification; that

in the event the actual costs of relocation or modification

exceed the estimate submitted by the Government the

Lessor shall pay only the actual costs; that the Govern-

ment shall have the exclusive right to determine when a

relocation or modification of a facility or component

thereof has been made necessary by airport improvements

or changes made or caused to be made by the airport

owner, and that this decision shall be final. It is agreed by

and between the Lessor and the Government that in the

App. 26 -

event the actual costs of relocation or modification of a

facility or component thereof is less than the estimate

submitted by the Government the Lessor shall pay only

the actual costs.

18. The following changes were made to this Lease

prior to execution:

a. Deletion of certain wording in paragraph 2.

b. Deletion of paragraph 3 in its entirety.

c. Addition of certain wording in paragraph 7.

IN WITNESS WHEREOF, the parties hereto have

hereunto subscribed their names as of the date indicated.

WITNESSES

/s/ Sandra L. Barones

/s/ Madeline P. Mckinnis

STATE OF CONNECTICUT

DEPARTMENT OF

TRANSPORTATION

By /s/ Joseph B. Burns (Seal)

Joseph B. Burns

Commissioner

Date: June 11, 1974

/s/_ George J. Bates

/s/_ Susan R. Pitt

UNITED STATES OF AMERICA

DEPARTMENT OF

TRANSPORTATION

By /s/ Roland O. Bisson Jr. (Seal)

Date: May 24, 1974

App. 27

This Agreement is made with the approval of the

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

the General Statutes of Connecticut, as revised.

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

Deputy Attorney Deputy Commissioner of

General Finance and Control

State of Connecticut State of Connecticut

Date: JUL 26 1974 Date: 6/25/74

6

I, Lucien A. Benjamin chief, Logistic Division of the New

England Region, Federal Aviation Administration certify

that Roland O. Bisson Jr. is duly authorized in his capac-

ity as the Realty Contracting Officer of the New England

Region, Federal Aviation Administration, to enter into

Lease DOT-FA74NE-0369 with the State of Connecticut

for the premises cited therein.

/s/ Lucien A. Benjamin

Chief, Logistics Division

a

If agreement is made with the State, County, Municipality

or other public authority, the following certificate shall be

executed by an authorized official:

I, Gloria Schaffer certify that I am the Secretary of the

State of the

State of Connecticut

(State, County, Municipality, or other Public Authority)

that Joseph B. Burns who signed said agreement on behalf

of the State of Connecticut was then Commissioner,

App. 28

Department of Transportation of said State of Connecticut

that said agreement was duly signed for and in behalf of

said State of Connecticut by authority of its governing

body, and is within the scope of its powers.

[SEAL]

/s/ Gloria Schaffer

(Signature) (Corporate seal)

Gloria Schaffer

Secretary of the State

of Connecticut

App. 29

APPENDIX E

CLOSING REMARKS of proceedings held on April 19,

1978, at the offices of ROGIN, NASSAU, CAPLAN,

LASSMAN and BORDEN, ESQUIRES, 111 Pearl Street,

Hartford, Connecticut.

APPEARANCES:

Augustus (Ozzie) Simmons

John Kataja

David Salzman, Esq.

Stephen Silverman, Esq.

Ned Rogin, Esq.

Phillip Robbins, Esq.

F. D. Neusner, Esq.

Dennis Cemeriva Esq.

Robert L. Hirtle, Esq.

Reported by:

William G. Crampton

Certified Shorthand Reporter

Notary Public

[8] delivery of the deeds, of course.

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

App. 30

being made public whereby the Rogin firm and my good

friends here, Dave 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

the 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. I don’t care if it is

Referee Shapiro. 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 November of ’64.

MR. HIRTLE: You will not sign a deed today to

consummate the closing, is that what I understand?

MR. SIMMONS: Because the agreement states

and [9] I have to say if any portion of it is a nullity then it

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

that is a nullity.

MR. NEUSNER: Is that a definitive negative

answer?

MR. HIRTLE: You are instructing counsel not to

proceed 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.

App. 31

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 o'clock a.m. the closing was

adjourned).

App. 32

APPENDIX F

NO. 202121-8

STATE OF CONNECTICUT SUPERIOR COURT

VS. HARTFORD COUNTY

AUGUSTUS J. SIMMONS APRIL 19, 1978

NO. 199230-9 eS

AUGUSTUS J. SIMMONS

VS.

SAMUEL KANELL, ET AL

NO. 140965

STATE OF CONNECTICUT

VS.

ANASTASIA SIMMONS

AUGUSTUS J. SIMMONS and

CHARLES SIMMONS

NO. 162923

AUGUSTUS J. SIMMONS

VS.

FRANK C. PARIZEK, ET AL

NO. 163875

AUGUSTUS J. SIMMONS

VS.

HORACE B. WETHERELL, ET AL

App. 33

MOTION TO WITHDRAW AS COUNSEL

The undersigned respectfully move for the permission

of the Court to withdraw as counsel for Augustus J.

Simmons in the above-captioned matters.

/s/ Robert Hirtle

ROGIN, NASSAU, CAPLAN,

LASSMAN AND HIRTLE

/s/ David B. Salzman

DAVID B. SALZMAN,

ESQUIRE

/s/ Stephen W. Silverman

STEPHEN SILVERMAN,

ESQUIRE

ORDER

The foregoing motion is granted/denied.

BY THE COURT

Clerk

This is to certify that the foregoing has been mailed this

day to counsel of record and to the plaintiff.

/s/ Robert L. Hirtle, Jr.

Robert L. Hirtle, Jr.

App. 34

APPENDIX G

CASE NO. 16 38 75

AUGUSTUS SIMMONS’) : SUPERIOR COURT

vs. : HARTFORD JUDICIAL

DISTRICT

HORACE WETHERALL, : OCTOBER 15, 1991

ET AL.

-~ MOTION TO TRANSFER FUNDS

Since 1978 the Clerk’s Office has been the Custodian

of moneys deposited in the above case. The money was to

be paid out upon consummation of a transfer of certain

real estate by the named plaintiff. Such a transfer has not

yet occurred.

Attached to this motion are memos from the Treas-

urer of the State of Connecticut and from the Court

Operations Unit of the Judicial Branch in explanation of

this motion. The Clerk’s Office requests the granting of

this motion to transfer.

[off — parties have met 11/8/91 and will work out a stipula-

tion to be presented to the court for the withdrawal

of all funds and closing of file. /s/ Aronson, J.

ARONSON, J. 16/8/91]

/s/ Lucian J. Jachimowicz

LUCIAN J. JACHIMOWICZ

’ CHIEF CLERK

App. 35

ORDER

The Court, having heard ther parties, grants the

motion.

Judge

App. 36

APPENDIX H

DEPARTMENT OF TRANSPORTATION

FEDE AVIATIO TION

NEW ENGLAND REGION

154 MIDDLESEX STREET

BURLINGTON, MASS. 01803

Tel. 617 223-2271

26 May 1971 (LOGO)

Mr. Augustus J. Simmons

580 Park Avenue

Windsor, Connecticut 06095

Dear Mr. Simmons:

Your letter of 28 April 1971 has been referred to this office

for reply to the question concerning the status of federal

funding insofar as it relates to Bradley Field, Windsor

Locks, Connecticut. The State of Connecticut, under a

Grant Agreement issued under Federal Aid Airport

Program, Project No. 9-06-009-5708 has been obligated to

acquire your property in addition to other properties under

separate ownerships. The State has acquired all other

properties but has, to date, not succeeded in obtaining

adequate interest in your property due, of course, to the

litigation arising over the several attempts of the State to

condemn the necessary land interests.

This agency has not withheld funds from the State under

the project. We have, in fact, participated to the fullest

extent under our regulations in all other costs incurred

except, of course, costs related to the acquisition of your

property. We have administratively determined to reserve

rights for the State of Connecticut to request federal

participation in the costs of acquiring your land, after it

has been accomplished successfully.

App. 37

While we understand your anxiety to retain possession of

your land, the acquisition for the benefit of Bradley Field

has been considered to be overriding. Consequently, our

agency favorably reviewed the State’s request for federal

aid. The material submitted with your correspondence is

returned herewith.

Sincerely,

/s/ [Illegible]

J. B. KOMICH

for Acting Chief, Airports Division, NE-600

Enclosures

App. 38

In The United States of

Federal Claims

Cover Sheet

Plaintiff{s) or Petitioner(s)

Augustus Simmons, P.O. Box #1, Windsor, CT 0609

If this is a multi-plaintiff case, pursuant to RCFC

20(a), please attach an alphabetized, numbered list

of all plaintiffs.

Name of the attorney of

record: [See RCFC 81(d)] Augustus Si ns Se

Firm Name: Same as ve

Post Office Box: #1

Street Address: 245 Broad Street

City-State-Zip: Windsor, CT 06095

Telephone & Facsimile (860) 569-6714

Numbers:

Is the attorney of record admitted to the Court of Federal

Claims Bar? N/A

If NO, please call (202) 219-9630 for admission papers and

instructions.

Nature of suit code: {5] [1] [2]

Select only one [three digit]

nature of suit code from at-

tached sheet and if numbers

118, 134, 226, 312, 356, or 528 are

used, please explain.

App. 39

Government Agency Involved: {[F] [A] [A]

See attached Sheet for three

digit code.

Amount Claimed: $5,374,200.00

If to be determined, put the

phrase “to be determined” in

Amount Claimed Space.

Vaccination Date: (Vaccine Cases N/A

Only)

If this is case related to any pending or previous case you

are required to file a separate notice of related case(s).

See RCFC 77(f2) (General Order No. 36)

IN THE UNITED STATES CLAIMS COURT

COVER SHEET

(Only this sheet must accompany

original complaint or petition)

1. PLAINTIFF(S) or DEFENDANT or

PETITIONER(S) RESPONDENT

a. Augustus Simmons b. x United States of

P.O. Box #1 America

Windsor, CT 06095

If this is a multi-plaintiff

case, pursuant to Rule _ Secretary of the Dept

20(a), please attach an of Health and

alphabetized, numbered Human Services

list of all plaintiffs.

App. 40

2. Name of attorney of record: Augustus Simmons, Pro

Se (See Rule 81(d)(1))

3. Is the attorney of record admitted to the Claims

Court Bar? N/A

4. Fill in the appropriate numbers or letters from the

information sheet; ONLY ONE FOR EACH ITEM:

10/220L ib. Agency TRN -(F.A.A.)

a. Nature of Suit 12/460 (Letters)

(Numbers)

c. If Vaccine case, put one 2-digit number from section I,

in front of the (/); one 3-digit number from section II after

the (/) and state the date of the vaccination N/A

(date)

5. Amount claimed: 5,374,200.

Number of counts: Three (3)

7. If Contract case, under the Contract Disputes Act?

8. If Tax case, specify IRC sections involved

and number of tax years

9. If taking of realty, state number of acres 6.7 Acres

10. If item 4a above has 380 after slash, or 4b has (0),

please explain:

11. Is case related to any pending or previous U.S.

Claims Court case? No

See Rule 77(9f2), regarding separate filing of a No-

tice of Related Case(s), stating whether any pending

or previous action in any court and the action being

filed appear to be related.

App. 41

APPENDIX I

IN THE UNITED STATES COURT

OF FEDERAL CLAIMS

AUGUSTUS J. SIMMONS )

P.O. Box #1 )

Windsor, Connecticut 06095 )

Plaintiff, mae:

- J udge:

THE UNITED STATES OF AMERICA,

Defendant. )

COMPLAINT

For its complaint in this action, Plaintiff, Augustus J.

Simmons, alleges as follows:

INTRODUCTION

1. Plaintiff, a private landowner, brings this lawsuit

against the United States to recover damages caused by

the — Physical Invasion — on or about July 1, 1962 by the

Federal Agency (FAA) with the imposition of an extraordi-

nary servitude of such a unique character that it was a

“TAKING” without regard to other factors for which just

compensation should be made.

Where the Federal Aviation Administration entered

upon the surface of private lands of Plaintiff and taken

exclusive possession with the erection and maintenance of

navigational instrumentation was a definite exercise of

complete and exclusive dominion, jurisdiction, and control

over the surface of Plaintiffs Parcel “C” as shown and

depicted in Map Book #12, page 568 of Town of East

App. 42

Granby, Connecticut Land Records containing 5.97 acres,

was an appropriation of private property without any

compensation ever made to the landowner, without any

attempts ever to lease the property, the policy at several

airports in the northeast region.

The F.A.A. acting pursuant to and under a 1955 Grant

Agreement, #9-06-009-5078 with the state agency, Con-

necticut Department of Transportation, who attempted

condemnation proceedings two (2) times, both being ruled

null and void by the Connecticut Supreme Court (160

Conn 492 (1971)), and, in lieu of addressing damages with

a third condemnation attempt, the Connecticut Depart-

ment of Transportation has been engaged in a joint con-

spiracy with the F.A.A. against the landowner by resorting

to illegal, unlawful, unconstitutional, uncompensated —

LEASING - of Plaintiffs private property, continually,

during condemnation attempts, continuing after the courts

declared all activity null and void, up to present date.

NO legal action has been initiated in the state or

federal courts to legally acquire the necessary property

interests, or pay just compensation, since March 24, 1972

when ownership reverted back to the Owner at Vol. 52,

pages 242, 243 of Town of East Granby, Connecticut Land

Records as a result of the null and void condemnation

attempts.

The prejudice to the landowner with payment of

property taxes and several lienholders against the proper-

ties that have been outstanding for decades, combined

with the length of delay, reason for delay, Owner’s asser-

tion of his right to compensation and the prejudice to the

Owner are part of the four-factor test for evaluating

App. 43

constitutionality of delay between the time of taking and

the payment of just compensation, sought in this action.

PARTIES

2. Augustus J. Simmons, petitioner, is the Owner of

three (3) Parcels (A, C, and D) of private property adjacent

to Bradley Airport, Connecticut’s premier airport, that was

one contiguous parcel until November 12, 1964 when it

was subdivided, has been in the family since 1924 and

only Parcel “C” consisting of 5.97 acres is in issue in this

action involving the Federal Aviation Administration.

3. Defendant is the United States of America, acting

through FAA and party to Federal Grant Agreement #9-

06-009-5078, who has exclusive jurisdiction over the

territory invaded for navigational instrumentation pur-

poses.

4. Defendant is also the State of Connecticut, De-

partment of Transportation, sponsor of Bradley Airport

and party to Federal Grant Agreement #9-06-009-5078

(1955) upon which reliance for the physical invasion was

relied upon by F.A.A.

JURISDICTION

5. This court has jurisdiction over all claims found

upon the Constitution of the United States or... upon any

contract, express or implied with the Government of the

United States. 28 USC § 1491(a). This claim arises from

the breach by the defendants of their contractual obliga-

tion under Federal Grant Agreement #9-06-009-5078.

App. 44

CONTRACT

6. This action rests on a contract — taking on behalf

of the United States, made by officials duly authorized and

under such conditions that a contract, express or implied —

in fact — to pay compensation, entitles the Owner to sue in

the Court of Claims, grant agreements notwithstanding.

United States v. Causby, 328 US 256, 66 S.CT. 1062, 90

L.Ed 1206 (1946).

(U.R.A.)

7. Under the Uniform Real Property Acquisition Act

(P.L. 91-646 (1971)), 42 USC § 4601 et seq congress made

very clear the Federal Agency is accountable under 42

USC § 4628 that reads: “Such acquisition shall for pur-

poses of the Uniform Act, be deemed an acquisition by the

Federal Agency having authority over such program or

project.”

PLAINTIFF’S CLAIMS

COUNT 1

(Breach of Contract)

8. Paragraphs 1 through 7 are incorporated herein

by reference as if fully set forth in full.

9. The Government, FAA, throughout the forty (40)

year servitude imposed on the landowner, has never

directly contacted or attempted to negotiate a contract,

agreement, lease or purchase with the Owner.

10. The Government is/was fully aware at all times

that the sponsor had not-ever-acquired a satisfactory

property interest as defined in 14 CFR § 152.3.

App. 45

11. Under 49 USC § 44502 Administrator of FAA

may —

(A) Acquire, establish, improve, operate and main-

tain air navigation facilities, and

(B) Provide facilities and personnel to regulate and

protect air traffic.

12. The glide slope for runway 6-24, the primary

runway with a 9500' foot length is a 50 to 1 ratio making

the total of Plaintiffs Parcel “C” unmarketable without

any monetary considerations.

13. A sizeable portion of the invaded Parcel is in the

“Clear Zone”, now referred to as the “Runway Protection

Zone” over which the Government has EXCLUSIVE

jurisdiction and EXCLUSIVE responsibility under con-

tract and regulation for the servitude imposed.

14. Where the Government has numerous leases

throughout the northeast region with private landowners,

under similar circumstances, the failure to contact the

Owner, even for one (1) dollar a year is repetitive trespass-

ing, to avoid a contract.

COUNT II

(Illegal Exaction in Violation of Due Process)

15. Paragraphs 1 through 14 are incorporated herein

by reference as if fully set forth in full.

16. The Government action of continuous engaging

in leases with the sponsor to avoid paying rent for such a

prolonged period of time, to the Owner, is a monstrous

exaction under the due process clause. (PL.EX. #1)

App. 46

17. By letter to Plaintiff/Owner in 1971, the Gov-

ernment acknowledged that the sponsor had never

acquired a satisfactory property interest, yet continued

entering into leases with the sponsor. (PL.EX. #2)

18. By letter to the Government (FAA) in 1982 the

Owner made demand for the continued use of the premises

at $10,000 — dollars per month and the reply from Chief

Counsel (Murdock) for FAA was “SORRY SIR, we have a

lease from the State of Connecticut.”

19. Nowhere, at any time, in the decades of State

Court activity has the State Judicial System acknowledged

or mentioned the fact that a federal installation and grant

agreement were in effect for Plaintiffs Parcel “C” giving

the FAA a subsidized “Free Ride” under the due process

clause. (PL.EX. #3)

20. That the FAA had favorable shelter in the

Federal Courts can be found in the Second Circuit Court of

Appeals remand in 1973 (472 F2d 509) whereby the court

stated: If the State had fenced off and put Airport Runway

Lights on a portion of landowner’s property without

compensation or instituting court proceedings was a cause

of action under § 1983 (Civil Rights).

21. That the FAA continued to have favorable

shelter in the District Court and Appeals Court (2nd

Circuit) is evidenced with a document filed by landowner

entitled “AFFIDAVIT, CONFLICT OF INTEREST, CON-

SPIRACY, FRAUD”, Filed February 4, 1982 and not

addressed by District Court Judge Cabranes who ruled

“Res Judicata” on a State Supreme Court Decision (180

Conn 587 (1980)), rendered under Plaintiffs private tort

action, without any action having been initiated, or dock-

eted, or hearings held before the Superior Court, nor any

App. 47

parties given notice or served and for challenging such

unconstitutional activity the landowner is labeled as

“pertinacious” and filing vexatious lawsuits.

22. There Has Not been any court proceedings

initiated or commenced by the State, or any other parties,

since ownership reverted to the Owner on the land records

on March 24, 1972 in Town of East Granby Land Records,

but, the exaction by leases is continuing with the Owner

forced to subsidize the Government operation with lien-

holders.

COUNT III

(Taking of Property Rights

Without Just Compensation)

23. Paragraphs 1 through 22 are incorporated herein

by reference as if fully set forth in full.

24. The Government was and is unequivocally obli-

gated under the contract implied, in fact, where the

officials of government, acting under authority of Congress

took Plaintiffs private property, Parcel “C” consisting of

5.97 acres, for public use.

25. Where the taking occurs when the Government

physically requires property for itself mandates compensa-

tion. Chicago, B.L.O.R. Co. v. Chicago, 16 US 226, 17 S.

CT. 581, 41 L.Ed. 979 (1897).

26. The Government directly appropriating private

property for its own use is ... the classic taking case...

under the Fifth Amendment. United States v. Security,

459 US 70, 78; 103 S. CT. 407, 412; 74 L.Ed. 2d 235 (1982).

App. 48

27. The “Physical Invasion” on the surface of private

property by the Government is an action of such a unique

character that is a taking without regard to other factors.

United States v. Causby, 328 US 265; 66 S. CT. 1062; 90

L.Ed. 1206 (1946); Hodel, 481 US at 715, 716; 107 S. CT.

AT 2082-2083 (1987).

28. The Government’s failure and refusal to comply

with the requirements of the constitutional contract consti-

tutes an unlawful taking of Plaintiffs vested contract and

real property rights.

29. Plaintiff/Owner is entitled to just compensation

for this taking of Plaintiffs vested contract rights and this

taking Plaintiffs real property for the period of July

1, 1962 to June 30, 2002, a total of forty (40) years is

$5,374,200.00, as itemized.

30. Plaintiff will entertain the prospect of a 20 year

lease starting with July 1, 2002 at $14,000.00 per month,

payable semi-annually with an opener after 10 years for

inflation consideration.

COMPENSATION

31. July 1, 1962 to June 30, 1972, 6,000.00 per month

120 months x 6,000.00 =

720,000.00 $ 720,000.00

July 1, 1972 to June 30, 1982, 8,000.00 per month

120 months x 8,000.00 =

960,000.00 $ 960,000.00

July 1, 1982 to June 30, 1992, 10,000.00 per month

120 months x 10,000.00 per

month $1,200,000.00

App. 49

July 1, 1992 to June 30, 2002, 12,000 per month

120 months x 12,000.00 =

1,440,000.00 $1,440,000.00

$4,320,000.00

ATTORNEY'S FEES, COSTS,

TAXES, ETC. $ 750,000.00

$5,070,000.00

INTEREST AT 6% $ 304,200.00

$5,374,200.00

NOTE:

Owner’s loss, not taker’s gain is measure of the value

of property taken. U.S. v. Miller, 317 US 369; 87 L. Ed.

336; 63 S. CT. 276; 147 ALR 55.

PARCEL “C”

(Map Book #12, Page 568)

A certain piece or parcel of land, containing 5.97

acres, situated in the said Town of East Granby on the

northeasterly side of Route #20, also known as rainbow

road, and also known as Parcel C on a map entitled:

“property of Anastasia Simmons east side — Rainbow

Road, East Granby, Conn. W.M. Alford Civil Engineer

Windsor Conn. Scale 1 inch = 60 ft., October 1964”, which

map is on file in the Town Clerk’s office in said town of

East Granby and being more particularly bounded and

described as follows:

Beginning at a point in the northeasterly side of Route

#20 in the Town of East Granby which point is six

hundred ninety-three (693) feet southeasterly from the

App. 50

southeasterly corner of land now or formerly of Charles

Comer, as measured along the northeasterly line of Route

#20;

Thence N 20° 27’ 30” E along land now or formerly of

Charles A. Simmons, eight hundred sixty and forty-six

one-hundredths (860.46) feet to a point;

Thence S 29° 09’ 50” E along land now or formerly of

the State of Connecticut, one hundred sixty-three and

seventy one-hundredths (163.70) feet to a point;

Thence S 22° 23’ 40” W along land now or formerly of

the State of Connecticut, eighty-one and twenty-four one-

hundredths (81.24) feet to a point;

Thence S 09° 18’ 30” W along land now or formerly of

the State of Connecticut, fifty-nine and forty-seven one-

hundredths (59.74) feet to a point;

Thence S 2° 13’ 40” E along land now or formerly of

the State of Connecticut, ninety-one and fifty-five one

hundredths (91.55) feet to a point;

Thence S 05° 06’ 30” W along land now or formerly of

the State of Connecticut, one hundred three and seventy-

nine one hundredths (103.79) feet to a point;

Thence S 09° 59” 20” W along land now or formerly of

the State of Connecticut, one hundred seventeen and four

one-hundredths (117.04) feet to a point;

Thence S 16° 13’ 10” W along land now or formerly of

the State of Connecticut, one hundred forty-eight and

| forty-four one-hundredths (148.44) feet to a point;

| Thence S 20° 3’ 00” W along land now or formerly of

| the State of Connecticut, two hundred seventy-four and

App. 51

forty-six one-hundredths (274.46) feet to a point in the

northerly line of Route #20.

Thence along a curve whose radius is 1834.86, a

distance of four hundred fifty and ninety one-hundredths

(450.90) feet to the point er place of beginning.

PRAYER FOR RELIEF

Wherefore, Plaintiff Augustus J. Simmons respect-

fully requests that the Court enter judgment in his favor

and against The United States as follows:

(a) On Count I, for damages in an amount as item-

ized in #31.

(b) On Count II, for damages in an amount as

itemized in #31.

(c) On Count III, for damages in the amount as

itemized in #31.

(d) Interest as permitted by law.

(e) Costs of suit, including reasonable attorneys’ fees

as permitted by law; and

(f) Such other and further relief as this Court may

deem proper.

Dated: 4-10-2002 Respectfully submitted,

/s/ Augustus J. Simmons

Augustus J. Simmons

P.O. Box #1

Windsor, CT 06095

(860) 569-6714

el

App. 52

IN THE UNITED STATES COURT

OF FEDERAL CLAIMS

AUGUSTUS J. SIMMONS

P.O. Box #1

Windsor, Connecticut 06095

Plaintiff,

v.

THE UNITED STATES

OF AMERICA,

Defendant.

Z

°

Judge:

Ne eee ee ee ee ee ee” ee”

MOTION - THIRD PARTY

Plaintiff, Augustus J. Simmons, herein names the

following as a THIRD PARTY DEFENDANT.

James F. Byrnes, Jr., Commissioner

Connecticut Department of Transportation

2800 Berlin Turnpike, P.O. Box 317546

Newington, CT 06131-7546

The Connecticut Department of Transportation,

Successor to the Connecticut Department of Aeronautics,

who entered into the original GRANT AGREEMENT with

the United States of America on behalf of the State of

Connecticut, Project No:- 09-06-009-5078, Contract No:

CICA 36-A on January 12, 1955 for a project of develop-

ment of the Bradley Field Airport consisting of the follow-

ing described airport development:

App. 53

“Acquisition of land for ‘Doolittle’ clear zones both

ends runway 6-24; acquisition of land and navigation

easements for protection of approaches 6-24, 19, 33.”

As evidenced by acceptance, ratification, and adoption

of said Grant Agreement, as provided by the Federal

Airport Act — agrees to all of the terms and conditions

thereof.

Executed February 1, 1955

K.H. Ringrose

Director of Aeronautics

The State of Connecticut, Department of Transporta-

tion, acting as the - LESSOR — has entered into a myriad

of LEASES to the United States of America, Department

of Transportation (Federal Aviation Administration)

warranting that it has acquired and possesses an ade-

quate real estate right in the property described herein,

(Parcel “C”), and that it is authorized to grant to the

Government the rights and interests set forth herein.

The Connecticut Department of Transportation, as

LESSOR, has NEVER acquired a “satisfactory property

interest” as defined in 14 C.F.R. § 152.3 of Plaintiffs

Parcel “C”.

/s/ Augustus J. Simm ana

Augustus J. tens Plaintiff

P.O. Box #1

Windsor, CT 06095

(860) 569-6714

App. 54

APPENDIX J

STATE OF CONNECTICUT

SUPREME COURT

NO. HHD CV70-0163875S

AUGUSTUS J. SIMMONS

Vv.

HORACE B. WETHERALL

ET AL.

: MAY 31, 2000

ORDER

THE MOTION OF THE PLAINTIFF, FILED MAY 1,

2000, TO VACATE, HAVING BEEN PRESENTED TO

THE COURT, IS HEREBY ORDERED DISMISSED.

IT IS FURTHER, ORDERED THAT THE PLAIN-

TIFF IS HEREBY PROHIBITED FROM FILING

PLEADINGS IN THIS COURT THAT ARE RELATED

TO DOCKET NUMBER CV70-0163875.

BY THE COURT,

/s/ Francis Drumm

CHIEF CLERK

NOTICE SENT: MAY 31, 2000

AUGUSTUS SIMMONS, PRO SE

PAUL K. PERNEREWSKI, ASSISTANT

ATTORNEY GENERAL

ROGIN, NASAU, CAPLAN,

LASSMAN & HIRTLE

CLERK, HARTFORD J.D.

HON. JOHN J. LANGENBACH

App. 55

APPENDIX K

STATE OF CONNECTICUT

LOUIS SHAPIRO SUPREME COURT BUILDING

STATE REFEREE P.O. DRAWER N. STATION A

HARTFORD, CONN. 06106

July 18, 1980

Jason E. Pearl, Esquire

19 South High Street

P.O. Box 183

New Britain, CT 06050

Re: No. 16 38 75

Augustus J. Simmons v. Horace B. Wetherell, et al

Dear Mr. Pearl:

This will acknowledge receipt of your Motion For Dis-

bursement of Funds by Clerk dated July 16, 1980 and

received by me this morning.

Since your phone call to me, I am not certain as to what

steps should be taken in order to make disbursement as

requested by you. Since the amount attached by Atty.

Salzman et als was accomplished by bringing suit, it

would seem to me that before distribution could be made,

that this claim be reduced to a judgment. If there is a more

expeditious way to proceed, I would appreciate hearing

from you as soon as possible.

I’m also concerned about the order of distribution since the

land records, according to your memorandum attached to

your letter, show a list of encumbrances prior to the date

of the Salzman attachment.

Also, in view of the many complications which I anticipate,

would it not be better to have this issue handled by the

App. 56

Superior Court? I am not equipped, as a referee to give

notice to the various creditors which I believe may be

necessary. It would seem that your motion could be han-

dled properly by the Superior Court.

Very truly yours,

Louis Shapiro

State Referee

LS:mcd

cc: Ronald Cassidento, Esquire

William A. McQueeney, Esquire