# Petition for Writ of Certiorari — Simmons v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1226%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 1013

## Text

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

roa
%
E
r
¥

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1226%3A1. Public record. Not legal advice.