Petition for Writ of Certiorari — Rosado v. Curtis
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Ul) FILED
96 736 SEP 1 2 19%
Noorfice OF THE CLERK
IN THE
SUPREME COURT FOR THE UNITED STATES OF AMERICA
October Term, 1996
ELLIOTT ROSADO, OMEGA FARRIS,
GARY FARRIS and SHERRY FARRIS,
Petitioners,
JOSEPH V. CURTIS, JOHN E. STEELE, PATRICIA E.
DORMAN, ROSLYN A. RUSSELL, JOE F. ROACH,
MARGARET A. WEISS,
ORLAND D. SMITH, DALE F. HART,
JOHN DOE #1-10, and JANE DOE #1-10,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE 11TH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Petitioners come as private individuals as Nonlawyers
Omega Farris, Non Domestic Mail
1932 Bel Air Avenue
Orlando, Florida USA 32812
QUESTIONS PRESENTED FOR REVIEW
1.-- Should it be applicable to all three branches of
government alike so that when we read “and all executive
and judicial Officers, both of the United States and of the
several States, shall be bound by Oath or Affirmation, to
support this Constitution * * * ," Article VI, clause 3, and
we consider the Congressional mandate of 5 U.S.C.A., s.
3331 which implements said Constitutional provision, and
when the face of ROSADO's-FARRIS' complaint shows them
to be coming pursuant to 28 U.S.C.A., s. 1746(1), then the
Constitution must be construed as a contract in
contradistinction to construction in light of legislative
enactment within the purview of OGDEN v. SAUNDERS, 25
US (12 Wheat.) 213, 277, 6 L.Ed. 606, 628 (1827); GLASS
v. THE SLOOP BETSEY, 3 Dall. 6, 13, 1 L.Ed. 485
(1794); ABLEMAN vy. BOOTH, 62 US (21 How.) 506,
524-525, 16 L.Ed. 169, 176 (1859); CHISHOLM y.
GEORGIA, 2 Dall. 419, 1 L.Ed. 440 (1793), given that on
the face of ROSADO's-FARRIS' complaint as a verified
pleading it is shown that ROSADO-FARRIS have
affirmatively established themselves as private individuals of
the United States of America pursuant to 28 U.S.C.A., s.
1746(1) which have third party beneficial interest in the
Constitution as a contract as a charitable trust in
constradistinction to submitting to governmental presumption
that they are public individuals pursuant to 28 U.S.C.A., s.
1746(2), UNITED STATES v. CRUIKSHANK, 92 US 542,
549-552, 23 L.Ed. 588, 590-591 (1876)?
2.-- Given that "The judicial Power of the United
States, shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain
and establish." (Emphasis ours) Article Ill, s. 1,
Constitution for the United States of America, and that
Congress has ordained that the United States district court for
Florida state, Orlando Division, be a constitutional Court
pursuant to Article III, s. 1, STATE v. DALLAS CITY, 72
Or. 337, 143 P. 1127, 1131; 28 U.S.C.A., s. 132(c); WELLS
v. UNITED STATES, 214 F.2d 380, 382 (CA5 Canal Zone
1954); GLIDDEN COMPANY v. ZDANOK, 370 US 530,
543, 82 S.Ct. 1459, 1469, 8 L.Ed.2d 671 (1962), and that
the same can be said of the U. S. Courts of Appeals in the
several states; OLD COLONY TRUST CO. -».
COMMISSIONER, 279 US 716, 724, 73 L.Ed. 918, 49
S.Ct. 499, 502 (1929), can it be said that said district court
has failed to be established to exercise Article III jurisdiction,
and, accepting the foregoing as true arguendo, can it be said
that the failure of said district court to be established may
explain its failure to rule on all the issues within the meaning
of REYNOLDS v. STOCKTON, 140 US 254, 264, 265-266,
11 S.Ct.773, 775, 776, 35 L.Ed. 464, (1891), but the failure
of the 11th Circuit Court of Appeals to recognize this state of
facts does not explain their failure to prevent further
irreparable harm to ROSADO-FARRIS within the meaning of
ROSADO's- FARRIS' Motion to Rehearing, particularly point
6 therein, and the foregoing must be considered in light of
COOMBES v. GETZ, 285 US 434, 441, 52 S.Ct. 435, 436
(1932), and "neither vested property rights nor the
obligation of contracts of third persons may be destroyed or
impaired." Ibid, 285 US, at 442, 52 S.Ct., at 436, see
CHIGAGO & NORTHWESTERN R. CO. v. WHITTON, 80
US (13 Wall.) 270, 286, 20 L.Ed. 571, 577 (1872)?
3.-- Is it mandatory to prevent invidious
discrimination that where fundamental rights are in issue the
Constitution for the United States of America must be
construed as a contract in which ROSADO-FARRIS, each
and every one as private individuals, have third party
beneficial interest therein in contradistinction to construction
of the Constitution in light of legislative enactment in which
public individuals have an interest which must be weighed
against public policy considerations which give rise to the
seven rules against construing the Constitution gi, en by
iti
Justice Brandeis in his concurring opinion, ASHWANDER vy.
TENNESSEE VALLEY AUTHORITY, 297 US 288,
345-348, 56 S.Ct. 466, 482-484, 80 L.Ed. 688 (1936), where
while it is true that this Honorable Court “does not sit for the
benefit of the particular litigants, (Citations omitted) RICE
v. SIOUX CITY MEMORIAL PARK CEMETARY, 349 US
70, 74, 75 S.Ct. 614, 616, 99 L.Ed. 897 (1955), “where the
issues involved reach constitutional dimensions, * * * there
comes into play regard for the Court's duty to avoid decision
of constitutional issues unless avoidance becomes evasion.
Cf. the classic rules for such avoidance stated by Mr. Justice
Brandeis in ASHWANDER v. TENNESSEE VALLEY
AUTHORITY," supra, RICE, supra, 349 US, at 74, 75
S.Ct., at 616-617?
4.-- Given the circumstances of this case, in light of
ROSADO's-FARRIS' Motion to Rehearing and the record as
a whole, can it be said to a certainty that like any general rule,
the rule that one may not claim standing to vindicate
constitutional rights of some third party should not be applied
where its underlying justifications are absent, SINGLETON
v. WULFF, 428 US 106, 49 L.Ed.2d 826, 96 S.Ct. 2868
(1976), and in the exceptional circumstances of ROSADO-
FARRIS herein the concededly injured party may rely on the
constitutional rights of a third party in obtaining relief,
MOOSE LODGE NO. 107 vy. IRVIS, 407 US 163, 32
L.Ed.2d 627, 92 S.Ct. 1965 (1972), and that this general rule
is not germane where the interests of ROSADO-FARRIS and
the rights of the proposed third parties are mutually
interdependent in that any fundamental right of an individual
that is violated and unvindicated is the destruction of
fundamental rights for all, CRAIG v. BOREN, 429 US 190,
50 L.Ed.2d 397, 97 S.Ct. 451 (1976), rehearing denied 429
US 1124, 51 L.Ed.2d 574, 97 S.Ct. 1161, and considering
that standing to litigate the rights of third parties has been
allowed when enforcement of challenged restrictions against
the litigant would result indirectly in the violation of
iV
third-parties’ rights. WARTH v. SELDIN, 422 US 490, 45
L.Ed.2d 343, 95 S.Ct. 2197 (1975)?
5.-- Considering that "the judicial powers which [the
Articles of Confederation] conferred upon the new federal
government were of the most restricted character." Albert H.
Putney, UNITED STATES CONSTITUTIONAL
HISTORY AND LAW, Chicago: Illinois Book Exchange,
1908, s. 62, p. 97, and that "provisions [of the Articles of
Confederation] included the entire grant of judicial power to
the United States government prior to the adoption of the
Constitution,” Jbid, s. 189, p. 305; RHODE ISLAND ¥v.
MASSACHUSETTS, 37 US (12 Pet.) 657, 728, 743, 9
L.Ed. 1233, 1262, 1268 (1838), is it mandatory that the
Judicial Power of the Constitution for the United States of
America be seen as a fundamental right secured to the
supreme Court for the United States of America which may
not be encumbered by the presumptions that gave rise to
Justice Brandeis’ concurring opinion of ASHWANDER v. T.
V. A, infra, which mandates avoidance of Constitutional
construction?
6. Can this Court affirm that in the instant case
where fundamental rights of the individual secured by the
Constitution for the United States of America are created by
those state constitutions which antedate it, then a contract to
secure said fundamental rights, would not leave Congress free
to choose its own remedial rights to vindicate fundamental
rights such as 28 U.S.C.A., s. 2106 to the exclusion of private
individuals within the meaning of 28 U.S.C.A,, s. 1746(1),
and access to courts of an independent judiciary is a contract
right, and a contract pursuant to Article III is available to all
with third-party beneficial interest, and parol evidence may be
necessary to show that state constitutions that antedate the
Constitution for the United States of America define said
fundamental rights, particularly with regard to access to
courts of an independent judiciary?
7.-- §.Ct. Rule 14.4 states that, "[t]he petition for a
writ of certiorari shall be as short as possible and may not
exceed the page limitations set out in Rule 33," and S.Ct.
Rule 33.3 mandates a 30 page limit for typographically
printed documents, and can this Court affirm that this
imposition violates ROSADO's-FARRIS' First Amendment
right to access to a court of an independent judiciary which
could be remedied by removing the page constraints on the
Brief on the Merits for Petitioners, Brief on the Merits for
Respondents, and the Reply Brief on the Merits?
8.-- Can this Honorable Court lose its jurisdiction to
hear the instant case to give a complete remedy in accordance
with the construction of the Constitution for the United States
of America as a contract in contradistinction to construction
in light of legislative enactment for lack of distinction between
the concept of said Constitution as an instrument embodying
a compact where it is said that, "The Constitution is founded
upon compact, but is not itself a compact." Roger Foster,
COMMENTARIES ON THE CONSTITUTION OF THE
UNITED STATES: Historical and Juridical, The Boston
Book Company, 1896, Volume I, s. 16, p. 79, which is
suscinctly explained by its section 16 and, in particular,
footnote 14 thereof, and the concept of said Constitution as a
compact where it is said that, "Chief Justice Jay said that the
Federal Constitution had the same effect upon the people of
the United States as [an original] State Constitution upon the
people of a State." /bid, s. 29, p. 109, which is suscinctly
explained by its section 29 and, in particular, footnote 4
thereof, and "The confederation was a compact between
states; and its structure and powers were wholly unlike those
of the national government. The constitution was an act of
the people of the United States to supercede the
confederation, and not to be ingrafted on it, * * * "
MARTIN v. HUNTER'S LESSEE, 1 Wheat. 304, 332
(1816), and yet Justice Story decries the fact that said
Constitution is a compact in his COMMENTARIES ON THE
CONSTITUTION?
9.— If this Court must determine, arguendo, that due
to the nature and dignity of the instant case subsequent
controversies might be more appropriately brought within the
original jurisdiction of this Court because it does arise from
violation of the Compact Clause, Article I, s. 10, cl. 3 of the
Constitution for the United States of America, and because
the destruction of ROSADO's-FARRIS' property so violates
their fundamental rights as to destroy their fundamental rights
too, and that the facts and circumstances of the instant case
are tantamount to casus belli when the states were fully
sovereign at the adoption of the Declaration of Independence
and where fundamental rights had become nonexistent, then
does this Court have the jurisdiction to determine within the
purview of ILLINOIS v. CITY of MILWAUKEE, 406 US
91, 93-94 (1972); MISSISSIPPI v. LOUISIANA, 113 S.Ct.
549, 552-553 (1992), that the Common Law Court of
Louisiana, Non Domestic Mail, 3527 Ambassador Caffery,
Suite 32, Lafayette, Louisiana USA 70503, would be an
appropriate alternative forum for said subsequent
controversies?
10.-- Is it mandatory that this court rule that the
denial of ROSADO's-FARRIS' motion shown, in pertinent
part, in Appendix I was a violation of ROSADO's-FARRIS'
First Amendment right within the purview of REYNOLDS v.
STOCKTON, infra, to an explanation of how the
independent judiciary comes to decision pursuant to
RICHMOND NEWSPAPERS, INC. v. VIRGINIA, infra?
vii
TABLE OF CONTENTS
Page
Questions Presented for Review ................. i
Re eS Es ad ON vii
Pe IID og Diva: y-0 6 Sr a PR cna des ix
CRI SS Ce Ne l
Statement of Jurisdiction ...................... |
Constitutional Provisions, Treaties, Statutes, Rules
and Regulations, Law Review Articles, and
Other Authorities Involved ............... 3
miapeey OE Ci IS RS ev FAL... 4
Reasons for Granting Writ ..................... 14
CR ea PO, eke. EUS... 29
Appendix:
A. Original Complaint filed in the U. S. district court
B. U. S. district court orders (2) rendered February
27, 1995
C. Proposed Per Curiam Decision
D. Notice of Motion and Plaintiffs'-Appellants'
Motion to Rehearing as a Motion to
Declaratory Judgment for Clarification of the
Proposed Per Curiam Decision of April i7,
1996
E. Denial of Motion aforesaid in D, supra
F. Judgment as a Final Judgment by Per Curiam
Affirmation entered April 17, 1996 as signed
by Matt Davidson, Deputy Clerk of the U. S.
court of appeals for the 11th Circuit and sent
to ROSADO-FARRIS on June 25, 1996.
G. Warranty Deed for land upon which the U. S.
district courthouse is situated which Fails to
satisfy the statutory requirements of 6.04 Fla.
Stat. as a Deed of Cession of Jurisdiction to
the United States.
H. Citation of Applicable Constitutional Provisions
and Statutes.
I. Notice of Motion, and Plaintiffs'-Appellants'
Motion to Strike the Defendants'-Appellees’,
Internal Revenue Service Employees', Answer
Brief, or, In the Alternative, to Evidence the
Basis Upon Which the Defendants-Appellees
Have Established a Material Issue in the
Record as a Speaking Motion Whose
Summary Denial Constitutes a Flagrant
Violation of ROSADO's-FARRIS' First
Amendment Rights.
iX
TABLE OF AUTHORITIES
ABLEMAN v. BOOTH, 62 US (21 How.) 506,
IG TTA IGDTIBSOR a he
ASHWANDER vy. T. V. A., 297 US 288,
56 S.Ct. 466, 80 L.Ed. 688 (1936)... iii
BATES v. LITTLE ROCK, 361 US 516, |
4 L.Ed.2d 480, 80 S.Ct. 412 (1960)....000000..... 22, 23
BUCHER v. CHESHIRE R. CO., 125 US 555,
8 S.Ct. 974, 31 L.Ed. 795 (1888).....0.0.00000000.. 19
CALIFORNIA v. ARIZONA, 440 US 59 (1979) .... 2
CAMPBELL SOUP CO. v. DIEHM,
111 F.Supp. 211 (E.D.Penn., 1952)................. 20, 28
CHIC. & N. W. R. CO. v. WHITTON,
80 US (13 Wall.) 270, 20 L.Ed. 571 (1872)..... ii
CHISHOLM v. GEORGIA, 2 Dall. 419,
FL EG AAI). Ss ek. i, 15
COHENS v. VIRGINIA, 19 US (6 Wheat.) 264,
SI Bd BST LE 23, 29, 30
COOMBES v. GETZ, 285 US 434,
SIGRID RBS. i
CRAIG v. BOREN, 429 US 190,
50 L.Ed.2d 397, 97 S.Ct. 451 (1976)......cc.c..-: iii, 24
DOWNES v. BIDWELL, 182 US 244,
21 S.Ct. 770, 45 L.Ed. 1088 (1901)................ 18, 19
FARMERS & MERCHANTS' BANK
v. FEDERAL RESERVE BANK, 262 US 649,
67 L.Ed. 1157, 43 S.Ct. 651 (1923)......00000000.. 27
GLASS v. THE SLOOP BETSEY, 3 Dall. 6,
ELE SOF CTR isc Nand Beckett. i
a eT
TABLE OF AUTHORITIES, continued
GLIDDEN COMPANY v. ZDANOK, 370 US 530,
82 S.Ct. 1459, 8 L.Ed.2d 671 (1962).........0000. i
GORDON vy. UNITED STATES,
LITUS TGR os ca 20, 21
JARROLT v. CITY of MOBERLY, 103 US 580,
26 L.Ed. 492 (1881)......ccccccsec00. oe he 14
LAKE COUNTY vy. ROLLINS, 130 US 662,
9 S.Ct. 651, 32 L.Ed. 1060 (1889).........ccc.c000. 14
LEONARD v. FRANKLIN, 84 Fla. 402,
93 So. GRR Tk ON ck a 14
MARTIN v. HUNTER'S LESSEE,
1 Wheek, S041. v
McCULLOUGH v. COMMONWEALTH
of VIRGINIA, 172 US 102, 43 L.Ed. 382, )
198 Ce Tee ii es... 27
MIDLAND NAT. BANK y. COUSINS
PROPERTIES, INC, 68 F.R.D. 427,
22 F.R Serv.2d 1117 (N.D.Ga., 1975)......0.00.. 20, 28
MOOSE LODGE NO. 107 v. IRVIS, 407 US 163,
32 L.Ed.2d 627, 92 S.Ct. 1965 (1972)... ii
NORTHERN PIPELINE CONST.
v. MARATHON PIPE LINE CO., 458 US 50,
102 S.Ct. 2858, 73 L.Ed.2d 598 (1982)........... 21, 22
OGDEN v. SAUNDERS, 25 US (12 Wheat.) 213,
CE WA GOGO seis ois sis. i, 15
OLD COLONY TRUST CO.
v. COMM'R, 279 US 716, 73 L.Ed. 918,
MB SCe WG OT ok ee, ss i
TABLE OF AUTHORITIES, continued
PORTO RICO SUGAR COMPANY
v. LORENZO, 222 US 481, 32 S.Ct. 133
(AST ee er ee 26, 27
REYNOLDS v. STOCKTON,
140 US 254, 11 S.Ct.773,
35 L.Ed. 464 (1891)......ccccccccseccseee. ii, 17, 23, 29, 30
RHODE ISLAND v. MASSACHUSETTS,
37 US (12 Pet.) 657, 9 L.Ed. 1233 (1838)........ iv, 20
RICE v. SIOUX CITY MEMORIAL
PARK CEMETARY, 349 US 70, 75 S.Ct. 614,
O01 a er ee es ii
RICHMOND NEWSPAPERS, INC.
v. VIRGINIA, 448 US 555, 100 S.Ct. 2814,
65 L.Ed.2d 973 (1980)......-.ccccccsseeceseee 17, 18, 23, 24
ROBB v. CONNOLLY, 111 US 624,
+506 ee 8 ee tt, 8S 15
ROGERS v. ALABAMA, 192 US 226 (1904)............ 17
SABLE COMMUNICATIONS
of CALIFORNIA, INC. v. F. C. C, 492 US 115,
109 S.Ct. 2829, 106 L.Ed.2d 93 (1989)........... 23
SINGLETON v. WULFF, 428 US 106,
96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)............ iii, 16
SMITH v. STATE of ALABAMA; 124 US 465,
8 S.Ct. 564, 31 L.Ed. 508 (1888).......0..cccc.000. 19
STATE v. DALLAS CITY, 72 Or. 337,
ee ste en. i
TEXAS v. NEW MEXICO, 482 US 124 (1987) ...... 20, 28
TABLE OF AUTHORITIES, continued
TEXAS INDUSTRIES, INC.
v. RADCLIFF MATERIALS, 451 US 630,
101 S.Ct. 2061, 68 L.Ed.2d 500 (1981)
UNION INTERCHANGE, INC.
v. ALLEN, 140 Mont. 227,
370 P.2d 492 (S.Ct.Mont., 1962)
UNITED STATES
v. BETHLEHEM STEEL COMPANY,
205 US 105 (1907)
UNITED STATES v. CRUIKSHANK, 92 US 542,
23 L.Ed. 588 (1876)
UNITED STATES v. MERSKY, 361 US 431,
4 L.Ed.2d 423, 80 S.Ct. 459 (1960)
UNITED STATES v. RADDATZ, 447 US 667,
100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)
WARTH vy. SELDIN, 422 US 490,
95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)
WELLS v. UNITED STATES,
214 F.2d 380 (CAS Canal Zone 1954)
WEST VIRGINIA STATE BOARD
of EDUCATION v. BARNETTE, 319 US 624,
87 L.Ed. 1628, 63 S.Ct. 1178 (1943)
WEST VIRGINIA ex rel. DYER v. SIMS,
341 US 22, 71 S.Ct. 557,
95 L.Ed. 713 (1951)
WOOD v. LOVETT, 313 US 362,
85 L.Ed. 1404, 61 S.Ct. 983 (1941)
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1 of 30
COMES NOW, the Petitioners, ELLIOTT
ROSADO, OMEGA FARRIS, GARY FARRIS and
SHERRY FARRIS, hereinafter ROSADO-FARRIS, as
private individuals as Nonattorneys, at all times living in the
geographical boundary and general jurisdiction of Florida
state, and in behalf of all similarly situated private individuals
as the sovereignty of the United States of America, to request
that certiorari be granted to review the denial of
ROSADO's-FARRIS' PLAINTIFFS'-APPELLANTS'
MOTION TO REHEARING AS A MOTION TO
DECLARATORY JUDGMENT FOR CLARIFICATION
OF THE PROPOSED PER CURIAM DECISION OF
APRIL 17, 1996 which was filed on the 31st day of May,
1996, hereinafter called ROSADO's- FARRIS' Motion to
Rehearing, with its Notice of Motion where said motion and
notice of motion are hereby incorporated herein as a reference
as it will appear in ROSADO's-FARRIS' Appendix by exhibit
"D", and the denial of said motion by the clerk of the United
States court of appeals for the 11th Circuit is dated June 14,
1996 as shown by exhibit "E" of the Appendix herein.
OPINIONS BELOW
It is the U. S. district court order rendered February
27, 1995, shown by exhibit "B" of the Appendix herein, which
was appealed to the U. S. court of appeals for the 11th
Circuit where appellate jurisdiction was invoked pursuant to
28 U.S.C.A., s. 2106 that is the subject of review, and this
Honorable Court may review said appellate court's denial of
ROSADO's- FARRIS' Motion to Rehearing first to determine
how this cause should proceed where the denial of
ROSADO's-FARRIS' Motion to Rehearing was issued by the
clerk of the appellate court on June 14, 1996 which is shown
by exhibit "E" of the Appendix herein.
STATEMENT OF JURISDICTION
The clerk of the United States court of appeals for the
2 of 30
llth Circuit denied ROSADO's- FARRIS' Motion to
Rehearing on June 14, 1996, and the jurisdiction of this
Honorable Court is invoked pursuant to 28 U.S.C.A., ss.
1254(1), 2101(c), 2106, 2201, and the record will show that
the Respondents have no chance to prevail in light of the
lower courts’ refusal to rule on ROSADO's-FARRIS'
controlling issues of law, and ROSADO-FARRIS are entitled
to a Declaratory Judgment in the nature of Specific
Performance of Contract where it is this Court's duty so to do
since the vindication of fundamental rights are at stake; or, in
the alternative, the jurisdiction of the supreme Court for the
United States of America arises directly from the Compact
Clause of the Constitution, Article I, s. 10, cl. 3, where the
Constitution for the United States of America is in itself an
interstate compact, and given that the original jurisdiction of
the supreme Court for the American Union is conferred by the
Constitution itself, and "[t]his jurisdiction is self-executing,
and needs no legislative implementation," (Citations omitted)
CALIFORNIA vy. ARIZONA, 440 US 59, 65 (1979), then
given the facts and circumstances herein and pursuant to 28
U.S.C.A., ss. 2106, and 2201 this Honorable Court may
fashion a federal common law remedy to construe the
Constitution as a contract as opposed to construing it in light
of legislative enactment; and, whichever alternative this Court
may choose, “the ideal of judicial review has basically
antidemocratic and antimajoritarian facets that require some
justification in this Nation, which prides itself on being a
self-governing representative democracy. * * * The
ultimate source of authority in this Nation, Marshall said, is
not Congress, not the states, not for that matter the Supreme
Court of the United States. The people are the ultimate
source of authority; they have parceled out the authority that
originally resided entirely with them by adopting the original
Constitution and by later amending it. They have granted
some authority to the federal government and have reserved
authority not granted it to the states or to the people
individually. * * * Judges then are * * * keepers of
3 of 30
the covenant.". (Emphasis ours) William H. Rehnquist,
"The Notion of a Living Constitution," 54 Texas L. Rev.
693, 695, 696, 698 (1976).
CONSTITUTIONAL PROVISIONS, TREATIES,
STATUTES, RULES AND REGULATIONS, LAW
REVIEW ARTICLES AND OTHER
AUTHORITIES INVOLVED
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William H. Rehnquist, "The Notion of a Living
Constitution," 54 Texas Law Review
ae Bh | SOR REID CARAS y A.
The New Encyclopedia Britannica,
Vel. 12 CBth Bad, BRIE oi oki cay 25
Helen Hill Miller, GQEQRGE MASON, Gentleman
Revolutionary, The University of North
Carolina Press: Chapel Hill, 1975, p. 300 ... 25
Bernard Schwartz, THE BILL OF RIGHTS:
A Documentary History, Chelsea House
Publishers in association with McGraw Hill
Book Company, 1971,Volume 1, p. 231......... 25
David H. Souter, NOMINATION OF DAVID H.
SOUTER TO BE ASSOCIATE JUSTICE OF
THE SUPREME COURT OF THE
UNITED STATES: Hearings before the
Committee on the Judiciary, United States
Senate, 101st Cong., 2d Sess., S.Hrg. 101-1263,
September 13, 14, 17, 18, and 19, 1990, pp. 54-55
(RODE) » cs cies ene eee ea ae 27, 28
Albert H. Putney, UNITED STATES CONSTITUTIONAL
HISTORY AND LAW, Chicago: Illinois Book
SS RIP ccsnicess ches nsrtcaeciceeetidaaes taeaceaens iv
STATEMENT OF THE CASE
This action arises when on August 6, 1992, the
secant ea
5 of 30
defendant John E. Steele, a Magistrate judge which is an
Article I judge, granted an order to federal defendants
Revenue Agents (employees of the U.S. government) for the
purpose of seizing and levying the private real and personal
properties of Omega and Sherry Farris, and the taking of real
and personal properties of Gary Farris and Elliott Rosado
located in the geographical jurisdiction of the Florida state, at
12737 Monte Vista Road, Clermont, Florida. Such order has
exceeded the geographical jurisdiction of the federal courts
areas (federal areas, exclusive jurisdiction as to U.S.A.
Constitution, Article I, Section 8, Cls 17 ) and in which the
State of Florida has not ceded the land for which to exercise
exclusive legislative jurisdiction to the federal government for
which an officer of the federal government can go to private
property within the territorial jurisdiction of the State of
Florida to act upon a private individual of the state. This
action by the federal Defendant, John E. Steele, is an act that
encroached upon the State of Florida's legislative jurisdiction,
and said act deprived the private individuals herein of
fundamental rights when such action deprived the Plaintiffs of
their properties located within the geographical boundary of
Florida state without a remedy found in access to a court of
an independent judiciary for these private individuals suffer
irreparable harm and require a complete remedy in equity and
good conscience.
Furthermore, the order issued by the defendant John
E. Steele, pursuant to Title 26 U.S.C.A., section 7402(a),
does not have an implementing regulation under Title 26
C.F.R. Part one of the U.S. Individual Income Tax to give the
force and effect of law to the statute, section 7402(a). The
Supreme Court of the United States stated in United States v.
Mersky, 361 U.S. 431, 444-445, that the statute is not
self-executing and only together with the regulations does it
have the force and effect of law. The statute, section
7402(a), does not have an implementing regulation as is
required by Congressionally mandated law pursuant to Title
26 U.S.C.A., section 7805(a). The act of issuing an order
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without a completed statutory scheme of implementing
regulation to the statute, section 7402(a), under Part one of
the U.S. Individual Income Tax constituted the taking of
properties without due process of law, 5th Amendment,
against the Plaintiffs. The Revenue Agents of the Internal
Revenue Service on August 11, 1992, executed the order by
unlocking the front door of the Plaintiffs, Omega and Sherry
Farris’, private home and taking the real and personal
properties of the Plaintiffs located at 12737 Monte Vista
Road, Clermont, Florida, and selling the properties in a public
action under the presumption that the agents of the .R.S. had
authority to enforce those sections of Title 26 U.S.C.A.,
sections 6201, 6301, 6321, and 6331, which were transferred
by Treasury Department Order No. 12001, published in the
Federal Register/ Vol. 55, No. 220/ Wednesday, November
14, 1990, which specifically states that sections 6201, 6301,
6321, and 6331 have been transfered to Title 27 C.F.R., Part
70, sections 71, 51, 141, 143, 144, 145, 148 to the Bureau of
Alcohol, Tobacco and Firearms.
On January 21, 1994, the Plaintiffs filed a verified
action against the defendants for taking the private properties
of the Plaintiffs without authorization of Treasury
Regulations, and without statutory authority to seize and levy
the Plaintiffs’ private properties. The Plaintiffs, through this
action, tried to recover what was taken and sued for
compensantory and punitive damages for injuries caused by
all Defendants.
On August 19,1994, the U.S. district court granted
the Plaintiffs’ motion for leave to amend their complaint. The
U.S. district court never warned the Plaintiffs that a dismissal
was eminent.
The defendants never answered the Plaintiffs’ verified
complaint in that their answer should be verified under oath
and when the defendants did not respond with a verified
answer then it is to say that the defendants did not answer the
:
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Plaintiffs’ complaint and being an unverified answer the
defendants’ pleadings constituted nothing more than hearsay.
On October 5, 1994, the U.S. district court notified all parties
that the motion for summary judgment was before the court
and to file affidavits in support or to oppose within the
purview of Fed. Civ. P. Rule 56(c), (e). The Defendants did
not file any affidavits to support their motion for summary
judgment as the court set forth. The Plaintiffs responded with
affidavits but the Plaintiffs did not oppose the motion of
summary judgment. And on February 27, 1995, the US.
district court granted dismissal to one Defendant. And
summary judgment relief to the Defendants without affidavits
in support of their mere allegations. This appeal arises from a
final order issued February 27, 1995 by the U:S. district court
for the Middle District of Florida granting dismissal for one
Defendant and summary judgement without supporting
affidavits in favor of all other defendants in which the decision
the U.S. district court has deprived the Plaintiffs of
fundamental rights secured by the United States Constitution
and Congress’ enactment of law, where the district court
failed to dispose of all the issues presented by the Plaintiffs, in
particular the Ultimate Issue of Law. The case involved an
action brought in the U.S. district court against defendant
agents and employees of the IRS and U.S. Magistrate Judge
John E. Steele for violating the Plaintiffs’ rights under the
Fourth, Fifth and Eighth Amendments to the United States
Constitution when the defendants acted outside their scope of
authority against the Plaintiffs and deprived them of their
properties without the authority of implementing regulations
as mandated by Congress in Title 26 U.S.C.A., sec. 7805(a).
This issue of having no implementing regulations under Title
26 C.F.R., part one of the U.S. Individual Income Tax is the
controlling issue of law in this case and was never addressed
by either the defendants or the court.
The US. district court failed to recognize its
jurisdiction pursuant to Title 28 U.S.C., sections 1331,
1346(a)(1), and the Fourth, Fifth and Eighth Amendments to
8 of 30
the United States Constitution as invoked by the Plaintiffs
when they initiated this action. The district court failed to
address the ultimate issue of law, that ultimate issue being
that the regulations implement the statutes pursuant to
MERSKY, supra, which was presented by the Plaintiffs in this
case. The Plaintiffs were deprived of their right to due
process in that the decision to grant all defendants summary
judgement was done on only a partial consideration of the
issues and the district court never reached the controlling
issue of law that the regulations implement the statutes. The
U.S. district court issued the final order of February 27, 1995
granting summary dismissal to one Defendant and summary
judgement to all other defendants after the court had issued
an order on October 5, 1994 ordering all parties to either
support or oppose the motions submitted by the defendants
by affidavit pursuant to Fed. Civ. P. rule 56(c), (e). This
order of October 5th constituted an order for trial by affidavit.
The defendants violated this court order and failed to support
their motions with any affidavits, yet the court issued its final
orders granting dismissal to one defendant and granting
summary judgement to all other defendants in the absence of
any affidavits filed by the defendants and in violation of its
own order. The Plaintiffs submitted a verified Complaint and
the Plaintiffs never expressly waived the verification required
of the defendants in their answer to the Plaintiffs Complaint.
Throughout the course of summary judgment the defendants
failed to submit affidavits to support their motion for
summary judgment that they had filed and the district court
set forth. At the time the court order was issued on October
5, 1994, there were no material facts in dispute and all that
remained was for the court to render a decision based solely
on the law. The court failed in its duty to dispose of all the
issues presented by the Plaintiffs, primarily the Ultimate Issue
of Law that the regulations implement the statutes. Title 5
U.S.C., s. 559 states in pertinent part that "[e]xcept as
otherwise required by law, requirements or privileges relating
to evidence or procedure apply equally to agencies and
persons." Fed.R.Civ.P. 11 provides in pertinent part that
Sean errs reer
9 of 30
"[e]xcept when otherwise specifically provided by rule or
statute, pleadings need not be verified or accompanied by
affidavit." So it appears to the Plaintiffs that 5 U.S.C., s. 559
taken in the context of Fed.R.Civ.P. 11, 8(b), (e)(2), (f) is
such that they are all derogatory in nature pursuant to
ANNOTATION -- EVIDENCE -- SELF-SERVING
DECLARATIONS, 1 A.L.R. 39, 60, and the Fed.R.Evid.
apply to this appellate proceeding for the aforementioned
reasons together with the fact that Fundamental Rights are
involved:
a) "The object and intent of Congress in enacting this
beneficent and progressive legislation is strongly emphasized
by a unique and unusual expression found in the last section
of the statute, 5 U.S.C.A, s. 1011 [which is today's 5
U.S.C.A., s. 559]:
‘No subsequent legislation shall be held to
supersede or modify the provisions of this chapter
except to the extent that such legislation shall do so
expressly.'" TOM MUNG NGOW v. DULLES, 122
F.Supp. 709, 711 (D. C. Cir. 1954).
b) It seems to the Plaintiffs that the Defendants are
bound by Title 5 U.S.C., s. 559 and Fed.R.Civ.P. 11, 8(b),
(e)(2),(f) to verify their Answer to the Plaintiffs' Complaint in
their individual and personal capacities when the Plaintiffs
NEVER expressly waived its verification.
c) "Some evidentiary facts must be produced proving
that a viable claim exists, and that a reasonable [trier of fact]
could thus find for judgment on the complaint based on those
facts. See CELOTEX, 477 US at 324, [106 S.Ct. at 2553].
When, as in this case, no evidence has been produced to
support the [adversary's argument], it follows that no
reasonable [trier of fact] could find for judgment [in favor of
the adversary], and the court must summarily rule. * * * "
WILSON v. WILLIAMS, 997 F.2d 348, 350-351 (7th Cir.
1993). [A]s we have said in JACKSON v. DUCKWORTH,
955 F.2d 21, 22 (7th Cir. 1992), affidavits are evidence for
10 of 30
purposes of determining whether genuine issues of material
fact exist." Ibid, at 351. Though WILSON v. WILLIAMS is
concerned with a summary judgment procedure, its
conclusions regarding the necessity of determining whether
genuine issues of material fact exist pertain to the instant case
because Fed.R.Evid. 802 specifically incorporates as a
reference Fed.R.Civ.P. 32, 43(e).
d) "This material is, of course, unsworn hearsay, and
even when admitted in a nonjudicial hearing is of a iow order
of probative value." JACKSON v. UNITED STATES, 428
F.2d 844, 847 (U.S.Ct.Cl. 1970). "[MJere hearsay lacking
sufficient assurance of its truthfulness is not substantial
evidence to overcome the sworn testimony of a claimant."
McKEE v. UNITED STATES, 500 F.2d 525, 528
(U.S.Ct.Cl. 1974).
e) "We have previously held that ‘verified pleadings
may in some circumstances be treated as affidavits in support
of a motion for summary judgment.' (citations omitted) This
result holds if the pleadings meet rule 56(e)'s requirement that
summary judgment affidavits ‘shall be made on personal
knowledge, shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein.’
Fed.R.Civ.P. 56(e).". LODGE HALL MUSIC, INC. yv.
WACO WRANGLER CLUB, INC, 831 F.2d 77, 80 (CAS
Tex. 1987). And, the Plaintiffs note that this holding cites
two cases predating the existence of the 11th Circuit. And, in
SURKIN v. CHARTERIS, 197 F.2d 77 (CAS Fila. 1952),
this court found that unopposed affidavits that affirmatively
presented a party's case entitled that party to a judgment as a
matter of law. For the foregoing reasons the Appellants’
appeal this final orders issued on February 27, 1995, by the
U.S. district court should be reversed as a matter of law and
in the Light of Justice.
In California Bankers Association v. Shultz, 416
U.S. 21, 26, The United States Department of Justice Agreed
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11 of 30
with the Plaintiff when the Department of Justice made the
statement that the statutes need an implementing regulation to
give force and effect to the statutes and that the statutes
without the regulation do not have the effect of law. (see as
follows) California Bankers Association v. Shultz, 416 U.S.
21, 26. The Supreme Court has stated in their opinion that
the statute is not self-executing, and were the Secretary to
take no action whatever under his authority there would be no
possibility of criminal or civil sanctions being imposed on
anyone. This case says that if the Secretary of the Treasury
fails to promulgate regulations for the statutes which gives the
force and effect of law to the statutes then it is to say that
statutes can not impose any criminal or civil penalties on the
anyone. The question of law is: where is the implementing
regulations under Title 26 C.F.R. part one of the US.
Individual Income Tax for section 6201, 6301, 6321, 6331,
and 7402(a) for the Internal revenue service agents to seize
the Plaintiffs' private property? If the Internal Revenue
Service had authority under part one of the U.S. Individual
Income Tax it would show as follows; Example 1.6201-1,
1.6301-1, 1.6321-1, 1.6331-1, and 1.7402(a)-1.
In Dodd v. United States, 223 F.Supp 785, 787 (DC,
New Jersey, 1963) the Supreme Court stated that for Federal
Tax purposes the regulations govern. This case doesn't say
the statutes govern, it says very clearly that for tax purpose
the regulations govern. Payne v. Block, 714 F.2d 1510(11th
Cir. 1984). In this case the 11th Circuit Court of Appeals
stated that the failure of the agency to comply with the
regulations is the gravamen of the original complaint. This is
to say that we, the Plaintiffs, rely on this case to state the
cause of action in the complaint when the Internal Revenue
Service failed to comply with the regulations, where the
regulations govern and not the statutes. And nowhere have
the Defendants controverted the Plaintiffs that the regulations
govern and not the statutes, nor have they presented the
authority of the regulations under part one of the U‘S.
12 of 30
Individual Income Tax. In United States v. Mersky, 361 U.S.
431, 444-445 the Supreme Court Opinion is that the statutes
are not self-executing and don't have any force of law unless
they are together with the implementing regulations, nor do
the regulations have any force of law without the statutes, and
only the statute and the regulations together have the force
and effect of law. In United States v. Reinis, 794 F.2d
506-508 (9th Cir.1986) the Court of Appeals stated that a
criminal penalty can attach only upon violation of regulations
promulgated by the Secretary of the Treasury. This is another
confirmation that the statutes alone cannot impose penalties
on anyone. In Wells v. United States, 214 F.2d 380 the U.S.
District Court of the Canal Zone, stated that the U.S. District
Court of the Canal Zone does not have jurisdiction to hear an
action under Title 28 U.S.C., section 1346(a), (1) because
the U.S. District Court of the Canal Zone is an Article I court
and not an Article III court. But the U.S. district court of the
state has the original jurisdiction under Title 28 U.S.C.,
section 1346(a), (1) to hear an action for recovery of illegal
collection of taxes because the U.S. district court is an Article
III court. The U.S. district court, for the Middle District of
Florida as an Article III court has the original jurisdiction to
hear an action for the recovery of illegal tax collection.
The following statutes in Title 26 U.S.C., sections
6201, 6301, 6321, and 6331, have been transferred to Title 27
C.F.R. under part 70 by Treasury Department Order No.
12001 published in the Federal Register/ Vol. 55, No. 220/
Wednesday, November 14, 1990. Title 26 U.S.C., section
6201, has been transfered to Title 27 C.F.R.part 70, section
71, and read as Title 27 C.F.R. 70.71. Title 26 U.S.C.,
section 6301, has been transfered to Title 27 C.F.R.part 70,
section 51, and read as Title 27 C.F.R. 70.51. Title 26
U.S.C., section 6321, has been transfered to Title 27
C.F.R.part 70, section 141, and read as Title 27 C.F.R.
70.141. Title 26 U.S.C., section 6331, has been transfered to
Title 27 C.F.R.part 70, section 161, and 162, and read as Title
27 C.F.R. 70.161, 70.162. Title 26 U.S.C.A., section 7805(a)
i3 of 30
is the authorization by Congress, which authorized the
Secretary of the Treasury or the Commissioner of Internal
Revenue Service to prescribe and promulgate regulations for
the enforcement of any provision of Title 26 U.S.C.A. Title
26 U.S.C.A., section 7402(a) is the authorization by Congress
to the Internal Revenue Sevice to use the U.S. district court
for the enforcement of any provisions of Title 26 U.S.C.A,
and section 7402(a) does not have an implementing regulation
under Part One of the U.S. individual Income Tax to give it
any force and effect of law for the Internal Revenue Service
to use the U.S. district court for enforcement of collections.
Title 27 C.F.R., 70.71; Title 27 C.F.R., 70.51; Title 27
C.F.R., 70.141; Title 27 C.F.R., 70.161, 70.162. Title 28
U.S.C.A., section 1331. Federal Question. The district court
shall have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States. Title
28 U.S.C., section 1346(a), (1). United States as defendant.
(a) The district courts shall have original jurisdiction,
concurrent with the United States Claims Court, of: (1). Any
civil action against the United States for the recovery of any
internal-revenue tax alleged to have been erroneously or
illegally assessed or collected, or any penalty claimed to have
been collected without authority or any sum alleged to have
been excessive or in any manner wrongfully collected under
the internal -revenue laws. Now we know that we the
Plaintiffs have committed a mistake in filing this case in this
U.S. district court and even in the U.S. court of Appeals
because this court is not situated on ceded land evidenced by
a deed of cession of jurisdiction where this court as an Article
III court, or as an Article I court, can exercise exclusive
federal jurisdiction and an act of juridical nature even if the
land was ceded the court cannot exercise jurisdiction beyond
the ground where the needful building is located within the
state boundary. We only hope that this court in equity and
good conscience may see a complete remedy.
14 of 30
REASONS FOR GRANTING WRIT
1. "The principle is well established that where [a]
Constitution expressly provides the manner of doing a thing,
it impliedly forbids its being done in a substantially different
way. (Citations omitted) The quoted constitutional provision
is a limitation upon legislative power." LEONARD y.
FRANKLIN, 84 Fla. 402, 93 So. 688, 691 (Fla. 1922), and
this must apply equally to the Constitution for the United
States of America. LAKE COUNTY v. ROLLINS, 130 US
662, 670, 9 S.Ct. 651, 652, 32 L.Ed. 1060, 1063 (1889);
JARROLT v. CITY of MOBERLY, 103 US (Otto) 580,
585-586, 26 L.Ed. 492, 493 (1881).
2.-- The United States district court for Florida state,
Orlando Division, has failed to be established pursuant to the
Congressional mandates of 4 U.S.C.A., s. 72 and 40
U.S.C.A., s. 255 which necessarily invoive 6.04, 6.05, Fla.
Stat. which is evidenced by exhibit "G" of the Appendix
which is attached hereto and incorporated herein as a
reference such that the failure of the aforesaid Court to be
established in accordance with the laws provided to
implement Article III, s. 1, hereinafter called failure of the
district court to be established, further deprives
ROSADO-FARRIS of their fundamental rights in that it has
effectively deprived them of access to courts of an
independent Judiciary, as is more fully explained by
ROSADO's-FARRIS' Motion to Rehearing, and
Congressional legislation such as the above-mentioned federal
statutes may be required to implement Article I, s. 8, cl. 9 &
17 from a federal point of view, but the Constitution for the
United States of America is self-executing from the national
point of view of a private individual.
"[T]here is no valid reason why a court, if it has
jurisdiction of a constitutional question, should refuse to do
so merely because of discretion." UNION INTERCHANGE,
15 of 30
INC. v. ALLEN, 140 Mont. 227, 370 P.2d 492, 496
(S.Ct.Mont., 1962), and "[u]pon the state courts, equally
with the courts of the Union, rests the obligation to guard,
enforce, and protect every right granted or secured by the
constitution of the United States and the laws made in
pursuance thereof [,] * * * " ROBB v. CONNOLLY, Lil
US 624, 637, 4 S.Ct. 544, 551 (1884)., and the supreme
Court for the United States of America has jurisdiction to
grant ROSADO's-FARRIS' Petition for Certiorari to the
United States Court of Appeals for the Eleventh Circuit
pursuant to 28 U.S.C.A., ss. 1254(1), 2101(c), 2106, 2201,
or, in the alternative, pursuant to Article I, s. 10, cl. 3 this
Honorable Court may fashion a federal common law remedy
to construe the Constitution as a contract as opposed to
construing it in light of legislative enactment given the
necessity of formulating a complete remedy to vindicate the
invasion of ROSADO's-FARRIS' fundamental rights and the
uncontrovertible facts that the validity of the Constitution as a
contract has long been established as a matter of law,
OGDEN v. SAUNDERS, 25 US (12 Wheat.) 213, 277, 6
L.Ed. 606, 628 (1827); CHISHOLM v. GEORGIA, 2 Dall.
419, 1 L.Ed. 440 (1793), and a valid purpose to the
distinction between 28 U.S.C.A., s. 1746(1) and (2) is to
allow the courts to consider the fact that private individuals
need a remedy derived from the Constitution construed as a
contract pursuant to 28 U.S.C.A., s. 1746(1) without the
burden public individuals must bear where they may have
waived constitutional rights pendant the circumstances of the
case and must obtain a remedy derived from the Constitution
construed in light of legislative enactment pursuant to 28
U.S.C.A., s. 1746(2), where, notwithstanding 1746 and
citizenship, all individuals have fundamental rights that
government must respect in the exercise of governmental
power directly or where administrative action comes in aid of
the exercise thereof, and where ROSADO-FARRIS must rely
on the invocation of statutorily created rights to obtain a
remedy, their fundamental rights are not granted by the
Constitution but are secured by the instrument as pre-existing,
————
16 of 30
and "{a]lthough standing in no way depends on the merits of
the plaintiffs contention that particular conduct is illegal,
(citation omitted), it often turns on the nature and source of
the claim asserted." WARTH v. SELDIN, 422 US 490, 500,
95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), and, "{iJn
some circumstances, countervailing considerations may
outweigh the concerns underlying the usual reluctance to
exert judicial power when the plaintiff's claim to relief rests on
the legal rights of third parties. (Citation omitted) In such
instances, the Court has found, in effect, that the
constitutional or statutory provision in question implies a
right of action in the plaintiff. (Citations omitted) Moreover,
Congress may grant an express right of action to persons who
otherwise would be barred by prudential standing rules. Of
course, Art. III's requirement remains: the plaintiff still must
allege a distinct and palpable injury to himself, even if it is an
injury shared by a large class of other possible litigants.
(Citation omitted) But so long as this requirement is satisfied,
persons to whom Congress has granted a right of action,
either expressly or by clear implication, may have standing to
seek relief on the basis of the legal rights and interests of
others, and, indeed, may invoke the general public interest in
support of their claim. (Citations omitted)" Ibid, 422 US, at
500-501, 95 S.Ct., 2206, and Congress has implied a
Constitutional common law right of action in 28 U.S.C.A., s.
1746(1) in the circumstances of this case. SINGLETON v.
WULFF, 428 US 106, 124 n.3, 96 S.Ct. 2868, 2879 n.3, 49
L.Ed.2d 826 (1976).
"It is a necessary and well-settled rule that the exercise
of jurisdiction by this court to protect constitutional rights
cannot be declined when it is plain that the fair result of a
decision is to deny the rights. It is well known that this court
will decide for itself whether a contract was made as well as
whether the obligation of the contract has been impaired."
(Citation omitted) ROGERS v. ALABAMA, 192 US 226,
230 (1904). So it seems to ROSADO-FARRIS that in order
17 of 30
to afford a complete remedy this Court must construe the
Constitution for the United States of America as a contract in
the instant case.
In light of 4 U.S.C.A., s. 72 which mandates that the
sovereign power of the federal government must be exercised
in the District of Columbia, it must be shown for the United
States district court for the Middle District of Florida that
Florida state has issued and recorded a " ‘deed of cession of
jurisdiction,’ 1949 Op.Atty.Gen. 20." 6.04 F.S.A., casenote
1, pursuant to the land upon which the district court is
situated to give jurisdiction to the United States pursuant to
6.04, 6.05 Fla. Stat. and that Congress has accepted said
jurisdiction pursuant to 40 U.S.C.A., s. 255.
"In any event, for the reasons stated in Part II of my
HOUCHINS opinion, 438 US, at 30-38, 98 S.Ct., at
2605-2609, as well as those stated by THE CHIEF JUSTICE
today, I agree that the First Amendment protects the public
and the press from abridgment of their rights of access to
information about the operation of their government,
including the Judicial Branch." RICHMOND
NEWSPAPERS, INC. v. VIRGINIA, 448 US 555, 584, 100
S.Ct. 2814, 2831, 65 L.Ed.2d 973 (1980) (Mr. Justice
STEVENS, concurring), and the U. S. court of appeals for
the 11th Circuit has deprived ROSADO-FARRIS of their
fundamental First Amendment right to a decision within the
purview of REYNOLDS v. STOCKTON, infra, when they
denied ROSADO's-FARRIS' Motion to Rehearing; “The
structural model links the First Amendment to that process of
communication necessary for a democracy to survive, and
thus entails solicitude not only for communication itself, but
also for the indispensable conditions of meaningful
communication. * * * An assertion of the prerogative to
gather information must accordingly be assayed by
considering the information sought and the opposing interests
invaded. * * * [T]he value of access must be measured
ee
18 of 30
in specifics. Analysis is not advanced by rhetorical statements
that all information bears upon public issues; what is crucial in
individual cases is whether access to a particular government
process is important in terms of that very process."
RICHMOND NEWSPAPERS, INC. v. VIRGINIA, 448 US
555, 588-589, 100 S.Ct. 2814, 2833-2834, 65 L.Ed.2d 973
(1980) (Mr. Justice BRENNAN, with whom Mr. Justice
MARSHALL joins, concurring in the judgment); and the
clerk of court denial of ROSADO's- FARRIS' Motion to
Rehearing which is dispositive of the case denies jurisdiction
to the supreme Court for the United States of America waere
the instant case should also be "bottomed upon a keen
appreciation of the structural interest served in opening the
judicial system to public inspection." Ibid, 448 US, at 592,
100 S.Ct., at 2836 as a judicial system of an independent
judiciary, "See TIME, INC. v. FIRESTONE, 424 US 448,
473-474, 476-478, 96 S.Ct. 958, 974, 975-977, 47 L.Ed.2d
154 (1976) (BRENNAN, J., dissenting) (open judicial
process is essential to fulfill ‘the First Amendment guarantees
to the people [individually] of this Nation that they shall
retain the necessary means of control over their institutions. .
..')." Ibid, 448 US, at 593, 100 S.Ct., at 2836.
3.— In RICE, supra, the petitioner, Evelyn Rice,
distinguished herself as a public individual by claiming
Constitutional protection under the due process and equal
protection clauses of the 14th Amendment, and in the
ROSADO-FARRIS action herein the face of their original
complaint and the record as a whole shows that they have
established as uncontroverted fact that they are private
individuals pursuant to 28 US.C.A, s. 1746(1), and
“consider whether the judicial power can afford a remedy by
applying inherent and fundamental principles for the
protection of the individual, even though there be no express
authority in the Constitution to do so [,]". DOWNES vy.
BIDWELL, 182 US 244, 282, 21 S.Ct. 770, 785, 45 L.Ed.
1088 (1901), and "[wje suggest, without intending to decide,
en
19 of 30
that there may be a distinction between certain natural rights
enforced in the Constitution by prohibitions against
interference with them, and what may be termed artificial or
remedial rights which are peculiar to our own system of
jurisprudence. Of the former class are the rights to one's
religious opinions and to a public expression of them, * * * ;
the right to personal liberty and individual property; to
freedom of speech and of the press; to free access to courts of
justice, to due process of law, and to an equal protection of
the laws; to immunities from unreasonable searches and
seizures, as well as cruel and unusual punishments; and to
such other immunities as are indispensable to a free
government. Of the latter class are the rights to citizenship,
to suffrage (MINOR v. HAPPERSETT, 21 Wall. 162, 22
L.Ed. 627), and * * * [w]hatever may be finally decided by
the American people as to the status of these islands and their
inhabitants, -- whether they shall be introduced into the
sisterhood of states or be permitted to form independent
governments, -- it does not follow that in the meantime,
awaiting that decision, the people are in the matter of
personal rights unprotected by the provisions of our
Constitution and subject to the merely arbitrary control of
Congress. Even if regarded as aliens, they are entitled under
the principles of the Constitution to be protected in life,
liberty, and property." DOWNES v. BIDWELL, 182 US
244, 282-283, 21 S.Ct. 770, 785.
The federal Constitution must be construed in light of
federal common law as a national common law. SMITH v.
STATE of ALABAMA, 124 US 465, 478-479, 8 S.Ct. 564,
569, 31 L.Ed. 508, 512 (1888); BUCHER v. CHESHIRE
R. CO., 125 US 555, 583-584, 8 S.Ct. 974, 978, 31 L.Ed.
795, 799 (1888); TEXAS INDUSTRIES, INC. y.
RADCLIFF MATERIALS, 451 US 630, 640-641, 101 S.Ct.
2061, 2067, 68 L.Ed.2d 500 (1981), and it seems to
ROSADO-FARRIS that in determining whether federal
judges have failed to perform their duty pursuant to §
20 of 30
U.S.C.A., s. 3331 implementing Article VI, cl. 3 of the
Constitution for the United States of America that such a
determination requires a federal rule of decision necessary to
protect uniquely federal interests, and that Congress in
enacting 5 U.S.C.A., s. 3331 and 28 U. S.C.A., s. 1746 has
given the courts the power to develop substantive law, and
that this Court has jurisdiction to determine the question
herein pursuant to Article I, s. 10, cl. 3.
4,-- The maker of a third-party beneficiary contract
may sue without joining the beneficiaries, MIDLAND NAT.
BANK yv. COUSINS PROPERTIES, INC., 68 F.R.D. 427,
22 F.R.Serv.2d 1117 (N.D.Ga., 1975), and vice versa.
CAMPBELL SOUP CO. v. DIEHM, 111 F.Supp. 211
(E.D.Penn., 1952), and if this Court has ruled that in the
exercise of its original jurisdiction it may enforce interstate
compacts following principles of general contract law,
TEXAS v. NEW MEXICO, 482 US 124 (1987), then it
seems to ROSADO-FARRIS that it is mandatory to do so in
the instant case given the facts and circumstances herein.
. 5.— "One of the most crying evils of the
confederation was, that it created no judicial power without
the action of Congress, * * * " RHODE ISLAND vy.
MASSACHUSETTS, 37 US (12 Pet.) 657, 728, 9 L.Ed.
1233, 1262, (1838), and "Then [, after the Declaration of
Independence,] the States, being independent, reserved to
themselves the power of settling their own boundaries, which
was necessarily a purely political matter, and so continued till
1781. Then the States delegated the whole power over
controverted boundaries to Congress, to appoint and its court
to decide, as judges, and give a final sentence and judgment
upon it, as a judicial question, settled by a specially appointed
judicial power, * * * *" Emphasis ours) Ibid, 37 US at
743, 9 L.Ed. at 1268, and "[h]ence the care with which its
jurisdiction, powers, and duties are defined in the Constitution
* * * [is] secured." GORDON v. UNITED STATES, 117
21 of 30
US 697, 701 (1864).
"[W]here Congress creates a substantive right,
pursuant to one of its broad powers to make laws, Congress
may have something to say about the proper manner of
adjudicating that right. Such provisions do, in a sense, affect
the exercise of judicial power, but they are also incidental to
Congress’ power to define the right that it has created. No
comparable justification exists, however, when the right
being adjudicated is not of congressional creation.”
(Emphasis ours) NORTHERN PIPELINE CONST. y.
MARATHON PIPE LINE CO., 458 US 50, 83-84, 102
S.Ct. 2858, 2877-2878, 73 L.Ed.2d 598 (1982), and it seems
to ROSADO-FARRIS that no implication of inference or
presumption should infect a remedy sought to vindicate the
invasion of fundamental rights secured by the Constitution for
the United States of America because remedial rights created
by Congress to give the courts jurisdiction and power to act
are invoked in the instant case.
"The Framers chose to leave to Congress the precise
role to be played by the lower federal courts in the
administration of justice. (Citation omitted) But the Framers
did not leave it to Congress to define the character of those
courts -- they were to be independent of the political branches
and presided over by judges with guaranteed salary and life
tenure." NORTHERN PIPELINE’ CONST. y.
MARATHON PIPE LINE CO., 458 US 50, 64 n.15, 102
S.Ct. 2858, 2867-2868 n.15, 73 L.Ed.2d 598 (1982).
"[T]he public-rights doctrine * * * draws upon the
principle of separation of powers, and a_ historical
understanding that certain prerogatives were reserved to the
political Branches of Government. The doctrine extends only
to matters arising ‘between the Government and persons
subject to its authority in connection with the performance of
the constitutional functions of the executive or legislative
departments,’ CROWELL v. BENSON, 285 US 22, 50, 52
a 22 of 30
S.Ct. 285, 292, 76 L.Ed. 598 (1932), and only to matters that
historically could have been determined exclusively by those
departments, see Ex parte BAKELITE CORP., supra, 279
US, at 458, 49 S.Ct., at 416. The understanding of these
cases is that the Framers expected that Congress would be
free to commit such matters completely to nonjudicial
executive determination, and that as a result there can be no
constitutional objection to Congress’ employing their
determination to a legislative court or an administrative
agency. (Citations omitted).
"The public-rights doctrine is grounded in a
historically recognized distinction between matters that could
be conclusively determined by the Executive and Legislative
Branches and matters that are ‘inherently * * * judicial.’
Ex parte BAKELITE CORP., supra, 279 US, at 458, 49
S.Ct., at 416. See MURRAY'S LESSEE v. HOBOKEN
LAND & IMPROVEMENT CO., 18 How., at 280-282. For
example, the Court in MURRAY'S LESSEE looked to the
law of England and the States at the time the Constitution
was adopted, in order to determine whether the issue
presented was customarily cognizable in the courts. Ibid."
NORTHERN PIPELINE CONST. v. MARATHON PIPE
LINE CoO., 458 US 50, 67-68, 102 S.Ct. 2858, 2869-2870,
73 L.Ed.2d 598 (1982).
The clerk of the U. S. court of appeals for the 11th
Circuit had no jurisdiction to deny ROSADO's-FARRIS'
Motion to Rehearing which was dispositive of the case, and
only the three judge panel possessed the jurisdiction to so in
violation of the Due Process Clause, 5th Amendment.
"It must be regarded as settled that each liberty
specified in the First Amendment of the Constitution is a
liberty which is secured by the due process clause of the Fifth
Amendment to all persons without regard to citizenship.”
BATES v. LITTLE ROCK, 361 US 516, 524, 4 L.Ed.2d
480, 486, 80 S.Ct. 412 (1960).
23 of 30
6.-- "[F]undamental rights, even though not expressly
guaranteed, have been recognized by the Court as
indispensable to the enjoyment of rights explicitly defined."
RICHMOND NEWSPAPERS, INC. v. VIRGINIA, 448 US
555, 580, 100 S.Ct. 2814, 2829, 65 L.Ed.2d 973 (1980), and
where ROSADO-FARRIS have been deprived of access to a
court of an independent judiciary pursuant to the First
Amendment it must be said that ROSADO-FARRIS have
been deprived of due process of law pursuant to the Fifth
Amendment, and where “administrative agencies cannot
finally determine ‘constitutional facts.'". UNITED STATES
v. RADDATZ, 447 US 667, 683, 100 S.Ct. 2406, 2416, 65
L.Ed.2d 424 (1980), it must be said that the district court
exercised a jurisdiction that it did not have within the purview
of COHENS vy. VIRGINIA, 19 US (6 Wheat.) 264, 404, 5
L.Ed. 257, 291 (1821) which constitutes treason to the
Constitution, and where the U. S. court of appeals for the
llth Circuit rendered a per curiam decision violating
REYNOLDS yv. STOCKTON, it must be said that said
appellate court has failed to exercise a jurisdiction that it did
possess within the purview of COHENS v. VIRGINIA,
supra, which constitutes treason to the Constitution.
" '‘Deference to a legislative finding cannot limit
judicial inquiry when First Amendment rights are at stake.’
LANDMARK COMMUNICATIONS, INC. v. VIRGINIA.
435 US 829, 843, 98 S.Ct. 1535, [1544], 56 L_Ed2d 1
(1978)." SABLE COMMUNICATIONS of CALIFORNIA,
INC. v. F. C. C, 492 US 115, 129, 109 S.Ct. 2829, 2838,
106 L.Ed.2d 93 (1989), and this should apply to any
legisiative organ of government including Article I and Article
IV courts.
Congress may have passed 28 U.S.C.A., s. 1746 to
establish the discriminatory classifications of private and
public individuals in recognition of important governmental
objectives within the purview of CRAIG v. BOREN, 429 US
a LENCE Save Rane SAREE EE et a
24 of 30
190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) to preserve
fundamental rights of private individuals where public
individuals have temporarily waived their third-party
beneficial interest in the Constitution for the United States of
America as a contract in return for rights granted by Congress
or the Constitution of the United States to protect compelling
governmental interests that may necessitate restrictions on
fundamental rights, and without a Constitutional common law
remedy fashioned to implement the foregoing invidious
discrimination due to reverse discrimination results.
"The very purpose of the First Amendment is to
guarantee all facets of each right described; its draftsmen
sought both to protect the ‘rights of Englishmen’ and to
enlarge their scope. See BRIDGES v. CALIFORNIA, 314
US 252, 263-265, 62 S.Ct. 190, 194-195, 86 L.Ed. 192
(1941)." RICHMOND NEWSPAPERS, INC. y.
VIRGINIA, 448 US 555, 578 n.14, 100 S.Ct. 2814, 2828
n.14, 65 L.Ed.2d 973 (1980). "Notwithstanding the
appropriate caution against reading into the Constitution
rights not explicitly defined, the Court has acknowledged that
certain umarticulated rights are implicit in enumerated
guarantees." Ibid, 448 US, at 579, 100 S.Ct., at 2829.
"[F]undamental rights, even though not expressly guaranteed,
have been recognized by the Court as indispensable to the |
enjoyment of rights explicitly defined." Ibid. And, it seems
to ROSADO-FARRIS that the majority decision in
RICHMOND was in light of the Constitution of the United
States construed in light of legislative enactments. However,
where the Constitution for the United States of America must
be construed as a contract, given that the United States of
America is the sovereignty whose power may only be
exercised through its agents who have a sovereign capacity
of the political corporation called the United States within
which to act, then said contract was never assented to as a
complete and accurate integrated contract without
considering the original Virginia Declaration of Rights as
extrinsic evidence to clarify the meaning of the Ninth and
25 of 30
Tenth Amendments to the Constitution for the United States
of America, where the original Virginia Declaration of Rights
“was a model for the Bill of Rights added to the U. S.
Constitution 15 years later, "The New Encyclopedia
Britannica, Vol. 12 (15th Ed.), 12:391, and “all of Articles
lif through XII were approved. The first eight of these
constituted a bill of rights closely parallel to Mason's Virginia
declaration of 1776. * * *
"In considerable part through the intransigence of the
man who wrote the first state declaration, a bill of rights had
been incorporated in the new nation's fundamental law.
Mason's leading objection to the document drafted at
Philadelphia had been eliminated with the active concurrence
of the colleague who was its chief architect." Helen Hill
Miller, GEORGE MASON, Gentleman Revolutionary,
The University of North Carolina Press: Chapel Hill,
1975, p. 300. "The Virginia Declaration of Rights of 1776 is
the first true Bill of Rights in the modern American sense,
since it is the first protection for the rights of the individual to
be contained in a Constitution adopted by the people acting
through an elected convention. * * * [I]t was Mason
who drafted virtually the entire Virginia Declaration of Rights
and Madison who was the draftsman of the federal Bill of
Rights. The work of the 1776 Virginia Convention was thus
crucial in the history of the federal Bill of Rights, both as the
first constitutional instrument upon which the federal Bill of
Rights was modelled and as the training-ground of the man
who was later to become known as the father of both the
federal Constitution and its Bill of Rights." Bernard
Schwartz, THE BILL OF RIGHTS: A Documentary
History, Chelsea House Publishers in association with
McGraw Hill Book Company, 1971,Volume 1, p. 231.
Thus, in considering the original Virginia Declaration of
Rights as integrated into the Constitution for the United
States of America as a contract to clarify its Ninth and Tenth
Amendments, it can be seen that the contractual basis for this
ee
26 of 30
Court's holding that, "The very purpose of a Bill of Rights
was to withdraw certain subjects from the vicissitudes of
political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal
principles to be applied by the courts. One's right to life,
liberty, and property, to free speech, a free press, * * *
and other fundamental rights may not be submitted to vote:
they depend on the outcome of no elections" WEST
VIRGINIA STATE BOARD of EDUCATION ¥.
BARNETTE, 319 US 624, 638, 87 L.Ed. 1628, 1638, 63
S.Ct. 1178, 147 A.L.R. 674 (1943), can be found in section 1
of the original Virginia Declaration of Rights, and that the
fiduciary duty of the judges of the lower courts in the instant
case as defined in ROSADO's-FARRIS' Motion to Rehearing
is grounded in section 2 of the original Virginia Declaration of
Rights which states, "That all power is vested in, and
consequently derived from, the People; that magistrates are
their trustees and servants, and at all times amenable to
them," and the Congress recognized the Framers’ original
intent that there would always be private individuals who
obtain the protection of government in return for their
allegience to the United States of America as its sovereignty
in compensation therefore and public individuals that
admiruster government with the enactment of 28 U.S.C.A.,
1746 which is predicated on section 5 of the original Virginia
Declaration of Rights as a contractual _ stipulation.
Furthermore, "[iJn BRAWLEY v. UNITED STATES, 96 US
168-173, 24 L.Ed. 622-624, the court says: ‘Previous and
contemporary transactions and facts may be very properly
taken into consideration to ascertain the subject-matter of a
contract and the sense in which the parties may have used
particular terms.' It is not for the purpose of making a
contract for the parties, but to understand what contract was
actually made, that, in cases of doubt as to the meaning of
language actually used, prior negotiations may sometimes be
referred to." UNITED STATES v. BETHLEHEM STEEL
CC., 205 US 105, 118 (1907), and "[t]he question always is,
What did the parties intend by the language used? When such
a
27 of 30
intention is ascertained it is ordinarily the duty of the court to
Carry it out." Ibid, 205 US, at 119; PORTO RICO SUGAR
CO. v. LORENZO, 222 US 481, 482, 32 S.Ct. 133, 134
(1912), and "[lJaws which subsist at the time and place of the
making of a contract, and where it is to be performed, enter
into and form a part of it, as fully as if they had been expressly
referred to or incorporated in its terms. This principle
| embraces alike those laws which affect its construction and
those which affect its enforcement or discharge. See OGDEN
v. SAUNDERS, 12 Wheat. 213, 231, 6 L.Ed. 606, 611; VON
HOFFMAN v. QUINCY, 4 Wail. 535, 550, 18 L.Ed. 403,
408." FARMERS & MERCHANTS’ BANK y. FEDERAL
RESERVE BANK, 262 US 649, 660, 67 L.Ed. 1157, 1164,
43 S.Ct. 651 (1923); WOOD v, LOVETT, 313 US 362, 370,
85 L.Ed. 1404, 1407, 61 S.Ct. 983 (1941); McCULLOUGH
v. COMMONWEALTH of VIRGINIA, 172 US 102, 124, 43
L.Ed. 382, 390, 19 S.Ct. 134 (1898), and in this light it must
be said that all state constitutions that were adopted prior to
the adoption of the Constitution for the United States of
America are incorporated in their terms into the Constitution
as a contract; "My own personal approach to [the] derivation
[of unenumerated liberty rights of the ninth amendment]
begins with, I suppose, the most elementary propositions
about constitutional government, but 1 do not know of any
other way to begin. I am mindful not only of the national
Constitution of 1787, but of the history of State constitution-
making in that same decade. * * * So, it seems to me
that the starting point for anyone who reads the Constitution
seriously is that there is a concept of limited governmental
power which is not simply to be identified with the
enumeration of those specific rights or specifically defined
rights that were later embodied in the bill. If there were any
further evidence needed for this, of course, we can start with
the ninth amendment. * * * Well, I think [the ninth
amendment] is two things -- maybe it is more. I have no
reason to question the scholarship which has interpreted one
intent of the ninth amendment as simply being the protection
or the preservation of the State bills of rights which preceded
28 of 30
it: Neither, quite frankly, do I find a basis for doubting that,
with respect to the national bill of rights, it was something
other than what it purported to be, and that was an
acknowledgment that the enumeration was not intended to be
in some sense exhaustive and in derogation of other rights
retained." (Italics ours) David H. Souter, NOMINATION
OF DAVID H. SOUTER TO BE ASSOCIATE JUSTICE
OF THE SUPREME COURT OF THE UNITED
STATES: Hearings before the Committee on the
Judiciary, United States Senate, 101st Cong., 2d Sess.,
S.Hrg. 101-1263, September 13, 14, 17, 18, and 19, 1990,
pp. 54-55 (1991).
7.-- ROSADO-FARRIS would have no page
constraints impeding their ability to express the merits of their
case in an original action of the supreme Court for the United
States of America, and "HINDERLIDER v. La PLATA
RIVER & CHERRY CREEK DITCH CO., supra, [304 US
92, 82 L.Ed. 1202, 58 S.Ct. 803 (1938)] * * * makes clear,
if authority be needed, that the fact the compact questions
reach us on a writ of certiorari rather than by way of an
original action brought by a State does not affect the power
of this Court," WEST VIRGINIA ex rel. DYER v. SIMS,
341 US 22, 30, 71 S.Ct. 557, 561, 95 L.Ed. 713 (1951), and
just as a State as maker of a third-party beneficiary contract
may sue without joining the beneficiaries, MIDLAND NAT.
BANK v. COUSINS PROPERTIES, INC., 68 F.R.D. 427,
22 F.R.Serv.2d 1117 (N.D.Ga., 1975), the third-party
beneficiaries to the Constitution for the United States of
America as a contract may sue without joining the several
states, nor any one of them. CAMPBELL SOUP CO. v.
DIEHM, 111 F.Supp. 211 (E.D.Penn., 1952), and if this
Court has ruled that in the exercise of its original jurisdiction
it may enforce interstate compacts following principles of
general contract law, TEXAS v. NEW MEXICO, 482 US
124 (1987), then it seems to ROSADO-FARRIS that it is
mandatory to do so in the instant case given the facts and
circumstances herein.
The United States Court of Appeals for the 1 Ith
Circuit has rendered a decision which has so far departed
from the accepted and usual course of judicial proceedings
and sanctioned such a departure by the United States district
court for the State of Florida, Orlando Division, as to call for
an exercise of this Court's power of supervision, $.Ct. Rule
10.1 (a), and the United States Court of Appeals for the 11th
Circuit has decided a federal question in a way that conflicts
with REYNOLDS yv. STOCKTON, 140 US 254, 11
S.Ct.773, 35 L.Ed. 464 (1891) when it failed to prevent the
district court from irreparably injuring ROSADO-FARRIS
further by failing to rule on the applicability of UNITED
STATES v. MERSKY, 361 US 431, 4 L.Ed.2d 423, 80 S.Ct.
459 (1960) together with the other controlling issues of law
ROSADO-FARRIS presented as the record will clearly show,
and to the extent that REYNOLDS v. STOCKTON has
decided that a court that fails to rule on all the issues has
failed to exercise its jurisdiction then this constitutes treason
to the Constitution for the United States of America within
the meaning of COHENS v. VIRGINIA, 19 US (Wheat.)
264, 404, 5 L.Ed. 257, 291 (1821), pursuant to S.Ct. Rule
10.1 (c), and ROSADO-FARRIS have been denied access to
the Judiciary in violation of the doctrine of the Separation of
Powers.
CONCLUSION
WHEREFORE, ROSADO-FARRIS pray that this
Honorable Court, The Supreme Court for The United States
of America ordained and established by Section one of the
Third Article of the Constitution of the United States,
exercise their constitutional equity jurisdiction upon this cause
such that all controlling issues to ROSADO's-FARRIS'
controversy are decided within the purview of REYNOLDS
v. STOCKTON; COHENS v. VIRGINIA, supra, and for
30 of 30
such other and further relief in the premises as the nature of
this cause and equity and good conscience may require to a
complete remedy.
DECLARATION
Pursuant to Title 28 U.S.C., section 1746(1)
We, the Petitioners, Elliott Rosado, Omega Farris, and
Sherry Farris, hereinafter called ROSADO-FARRIS, are
capable of making this declaration as a PETITION FOR
WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE 11th CIRCUIT, and
that We, each and every one, ROSADO-FARRIS, are
personally acquainted with the facts herein stated, and state
that We, each and every one, are over the age of eighteen,
and the following facts are within our personal knowledge
and if We are called as a witness, We, ROSADO-FARRIS,
each and every one, could testify thereto. We, the ROSADO-
FARRIS, declare under penalty of perjury under the laws of
the United States of America, pursuant to Title 28 U.S.C., s.
1746(1), that the foregoing is true and correct to the best of
our knowledge and belief. And if we are called as a witness
we could testify thereto -- each and every one of us.
Signed and dated this $/ th day of October, 1996.
4 (L.S. )
Om arris
Lcsiy Lattin (L.S. )
Sherry Faffis
Ap (L.S.)
Elliott Rosado
Non Domestic Mail, 1932 Bel Air Avenue,
Orlando, Florida USA 32812
APPENDIX A
UNITED STATE DISTRICT COURT
FOR THE MIDDLE DISTRICT COURT
ORLANDO DIVISION
ELLIOTT ROSADO, OMEGA FARRIS,
GARY FARRIS, and SHERRY FARRIS,
Plaintiffs,
V.
PATRICIA E. DORMAN, ROSLYN A.
RUSSELL, JOE F. ROACH, MARGARET
A. WEISS, ORLAND D. SMITH,
DALE F. HART, JOHN DOE # 1-10,
JANE DOE # 1-10,
)
)
)
)
‘
JOSEPH V. CURTIS, JOHN E. STEELE, )
)
)
)
)
)
Defendants. )
/
CASE No. 94-59-CIV-ORL-18
JUDGE: G. KENDALL SHARP
FIRST AMENDED COMPLAINT
COMPLAINT FOR DAMAGES
CIVIL RIGHTS VIOLATIONS
WITH DEMAND THAT ALL ISSUES OF
FACTS BE TRIED BY JURY
PURSUANT TO FRCP 38 (a), AND (b)
L
DI N
1. This is an action for damages sustained by several
EXHIBIT "A"
inhabitants of Florida against revenue officers of the Internal
Revenue Services and other non revenue agent persons, who
unlawfully signed an order to enter upon the private property
of the Plaintiffs' locked house, unlawfully arrested Plaintiff
Omega Farris and his wife Sherry Farris, against the Plaintiffs’
will, and unlawfully took Plaintiff Omega Farris and Sherry
Farris chattels from their house and loaded it into a mover
services truck and has not returned all of the Plaintiffs’ chattel
property, and for unlawfully selling all the houses of all
Plaintiffs’, and against the I. R. S. District director Dale F.
Hart for failure to supervise, to assure proper training of their
personnel, or to implement meaningful procedures to
discourage lawless official conduct or to take corrective
action with respect to revenue personnel whose vicious
propensities were notorious, which are sued as persons under
Title 42 U.S.C., Section 1983 and operated under color of
law w.uiout authority of law pursuant to Title 26 U.S.C. to
lien, levy and seize in violation of Title 18 U.S.C., Sections
872, 876, 1001; Title 26 IRC Section 7214; 26 CFR, Section
301.7214-1 and 26 CFR 601.106, Rule 1.
2. This action is brought pursuant to Title 42 U.S.C., Section
1983, 1985, 1986, 1988; Title 18 U.S.C., Sections 872, 876,
1001; Title 26 U.S.C., Section 7214; 26 CFR, Section
301.7214-1; 26 CFR, Section 601.106, Rule 1; and the First,
Fourth, Fifth, Eighth, and Fourteenth Amendments as well as
Article I, Section 10, to the Constitution of the United States
of America.
3. Plaintiffs evoke the Jurisdiction of this court pursuant to
Title 28 U.S.C., Section 1331, Title 28 U.S.C., Section 1343
(a), 1, 2, 3, 4, (b) 1, 2; Title 28 U.S.C., Section 1346.
Ii.
PARTIES
4. Plaintiff Omega Farris and Sherry Farris, husband and wife
(hereinafter Omega) are an inhabitant living in Non Domestic
Mail Florida in the City of Clermont at 12737 Monte Vista
Road (hereinafter premises), at all times relevant to the facts
A-3
in this complaint was living with his wife in said premises.
5. Plaintiff Gary Farris (hereinafter Gary) is an inhabitant
living in Non Domestic Mail Florida in the City of Clermont
at 8933 Reynold Road (hereinafter private property).
6. Plaintiff Elliott Rosado (hereinafter Rosado) is an
inhabitant living in Non Domestic Mail Florida, with address
Non Domestic Mail, 12373 Monte Vista Road, Clermont,
Florida USA.
7. Defendant Joseph V. Curtis (hereinafter Curtis) at all
times relevant to this complaint was a revenue agent,
employed by IRS at all relevant time he was acting in such
capacity as the agent, servant, who was the Master mind
person who entered the Plaintiff Omega locked house
(premises) on August 8, 1992, and or assisted other
Defendants in entering the premises, took all the personal
property inside the premises, and other property not
belonging to Omega including tools of his trade preventing
Omega from earning his livelihood. Curtis is a resident of
Orange County, Florida and is being sued individually and in
his official capacity.
8. Defendant Curtis at all times relevant to this complaint
was a revenue agent, employed by the IRS, and at all revelant
time he was acting in such capacity as the agent, servant.
Curtis was the Master mind person who unlawfully without
the regulations and statutes took all the real property from all
of the Plaintiffs to be sold at public auction.
9. Defendant Patricia E. Dorman (hereinafter Dorman) at all
times relevant to this complaint was a revenue agent,
employed by the IRS, and at all revelant time she was acting
in such capacity as the agent, servant. Dorman was the
person that assisted Curtis in the unlawful acts and the person
who was trying to extort and demand money from the
Plaintiffs. Defendant Dorman is a resident of Winter Springs,
Florida, and is being sued individually and in her official
capacity.
10. Defendant Roslyn A. Russell (hereinafter Russell)
Assistant Chief, collection Division, at all times revelant to
this complaint was a revenue agent, employed by the IRS, and
A-4
without authority of law, Regulations and statutes signed and
transferred all the Plaintiffs’ rights to the property to other
persons. Defendant Russell is a resident of Jacksonville,
Florida and is being sued individually and in her official
capacity.
11. Defendant Orland D. Smith (hereinafter Smith) at all
tines revelant to this complaint was a revenue agent,
employed by the IRS, and at all revelant time he was acting in
such capacity as an ageni, servant. Smith was the person who
assisted Curtis in the unlawful taking of the Plaintiff Omega's
personal property and is the person who went to the Plaintiff
Omega's house demanding money. Defendant Smith is a
resident of Florida, and is being sued individually and in his
official capacity.
12. Defendant Margaret A. Weiss (hereinafter Weiss) at all
times revelant to this complaint was a revenue agent,
employed by the IRS, and at all time she was acting in such
capacity as an agent, servant. Weiss was the person who
assisted Curtis in the unlawful act of demanding money, and
another later time went to the house of the Plaintiff Omega
demanding money. Defendant Weiss is a resident of Florida,
and is being sued individually and in her official capacity.
13. Defendant Joe F. Roach (hereinafter Roach) at all times
revelant to this complaint is an individual who was acting in
conjunction with Curtis to purchase the Plaintiff Omega's
property from Curtis. Defendant Roach is the individual that
offered to purchase the property from Plaintiff Omega, prior
to Curtis, in order to implicate the Plaintiff in an illegal act.
Roach is the individual that in conjunction with Curtis was
conspiring against the Plaintiff Omega in order to purchase
one of the properties belonging to Omega from Curtis signed
and delivered from Russell. Defendant Roach is a resident of
Orlando, Florida, and is being sued individually.
14. Defendant John E. Steele (hereinafter Steele) at all time
revelant to this complaint is a Magistrate Judge in
Jacksonville, Florida, issued and signed an order for entry on
premises to effect levy. The Defendant Steele without
probable cause and without authority of the Regulation that
A-5
premises to effect levy. The Defendant Steele without
probable cause and without authority of the Regulation that
give force and effect to implement the statute of search and
seizure of the IRC, in which Steele relied on. Defendant
Steele is the person that without Authority of Regulation to
implement the statute has caused damages to all the Plaintiffs
in this complaint. Defendant Steele s a resident of Florida.
and is being sued individually and in his official capacity.
15. At all times revelant hereto, Defendant Dale F. Hart as
IRS District Director in Jacksonville (hereinafter Dale) who
intentionally, knowingly that he and the other revenue agents
was acting without the scope of their agency regulations and
the statutes allow the revenue agents to seize all the Plaintiffs’ -
properties.
16. At all times revelant hereto, Defendants "Jane" and
John Does" are unknown persons who have either created
policy or custem and managed, ordered, controlled. or
neglected to restrain or correct the Defendants herein from
committing said civil rights violations complained herein.
These Defendants will be identified as their names become
known to the Plaintiffs.
17. At all times revelant hereto and in all their actions
described herein, Defendants Curtis, Dorman, Russell, Smith.
Weiss, Roach, Steele, Dale, and Jane and John Does, were
acting without authority and under color of law due to the
fact that no FEDERAL REGULATIONS were listed nor
evidenced, pursuant to 26 LR.C. Section 7805 (a), which
describe the particular type of tax that Omega was being
made liable for by this action of assessment and the
deprivation of property. Further there exists no Code Section
and implementing Federal Regulation pursuant to 26 IRC
Section 7805 (a) which authorizes this assessment action by
the Internal Revenue Service Agents. Therefore this action of
assessment and deprivation of property by Defendants was
unlawful and to the damage of life, liberty and property of the
Plaintiffs and in violation of Title 18 USC Section 872, and 26
I.R.C., Section 7214, and 26 C.F.R. 301.7214 and 26 CFR
601.106, Rule 1, to the LR.S., Revenue personnel or Public
A-6
officials.
18. Furthermore all Defendants in this complaint acted
without Regulations to lien, levy and seize, the Defendants
Magistrate Judge Steele signed an order to seize all properties
from the Plaintiffs, such order was based pursuant to Title 26
IR Code section 6331. Defendant Steele knowledgeable that
the Internal Revenue Code is comprised of revenue laws from
diferent revenue agencies. The section 6331 found in the IR
Code pertains to the Bureau of Alcohol, Tobacco and
Firearms under part 70 of the Title 27 CFR, snd Title 27
USCA section 204 Note 8a, prohibiting the Internal Revenue
Service from enforcing ATF regulations and statutes. A true
and accurate copy of the USCS to CFR Table I -- Authorities
is attached hereto as Exhibit "B" and incorporated herein
as reference which shows that sections 6331 and 6321
pertaint to 27 CFR part 70 and not to IRS revenue agents to
enforced.
A true and accurate copy of the Title 27 USCA section 204
Note 8a, is attached hereto as Exhibit "C" incorporated
herein as reference, and will show that the Internal Revenue
Service cannot enforce ATF the Bureau of Alcohol, Tobacco
and firearms the statutes.
19. A true and accurate copy of the Black's law Dictionary is
attached hereto as Exhibit "D" incorporated herein as
reference will show that Title 27 USC prohibits the internal
revenue agents of the IRS from enforcing or placing a lien,
levy and seizure against the Plaintiffs under sections 6321,
and 6331 found in the IR Code because those particular
sections pertaint to the Bureau of Alcohol, Tobacco and
Firearms.
20. A true and correct copy of the Notice of Federal Tax
Lien under Internal Revenue Laws is attached hereto as
Exhibit "E" and incorporated herein as reference will show
on the face of the Notice of Lien that the Internal revenue
Service agents used the section 6321 to lien the Plaintiffs’
properties.
21. A true and accurate copy of the Notice of Seisure is
attached hereto as Exhibit "F" and incorporated herein as
ee
A-7
reference will show that the agents seizure all Plaintiffs
properties under sections 6331 found in the IR Code that
pertaing to the Bureau of Alcohol, Tobacco and Firearms
22. A true and accurate copy of the Levy is attached hereto
as Exhibit "G" and incorporated herein as reference will
show that the Defendant Steele entered an order to levy and
seize which show on the face of the Levy that the order was
entered under the section 6331 of the IR Code which pertains
to the ATF, such action was out of the scope of Defendant
Steele's authority and without the subject matter jurisdiction
to issue an order to the IRS agents to levy or seize any
properties of the Plaintiffs.
23. A true and accurate copy of the Order for Entry on
Premises to Effect Levy signed and entered by the Defendant
Steele is attached hereto as Exhibit "H" and incorporated
herein as reference is show on the face of the order, which
given to the IRS agents to enforce the search in order to Levy
and seize the Plaintiffs properties under a section 6331 which
pertain to ATF.
24. A true and accurate copy of the Federal Register / Vol.
55, No. 220 / Wenesday, November 14, 1990 / Rule and
Regulations a Treasury decision, final rule is attached hereto
as Exhibit "I" and incorporated herein as reference. That
on July 1, 1972, that ATF was established by Treasury
Department Order No. 120-01 formerly Order No. 221 this
Order transferred from IRS to ATF the authority of functions
include the use of lien and levies in enforcement of taxes
under ATF. On the second page of this Exhibit "I" show
part 70-Amended that the section 6321 and 6331 is under
part 70 of the Title 27 CFR.
25. A true and accurate copy of the Fedeva! Register / vol.
57, No. 239 / Friday, December 11, 1992 / Proposed Rules is
attached hereto as Exhibit "J" and incorporate herein as
reference. This exhibit "J" will show that the IRS tried to
amend section 6331 to 1.6331-1 of par 1. of income tax but
Congress turned down the proposed rules which would allow
the IRS to enforce 6331 under part one of income tax. part
one of income tax, and threby does not have the authority of
A-8
the regulation to enforce any collections, lien, levy and
seizure.26. A true and accurate copy of the Deed of Real
Estate is attached hereto as Exhibit "K" and incorporate
hereto as reference. This deed signed and executed by the
Defendant Russell shows that the unlawful deprivation of
property of the Plaintiffs was executed under the section 6331
shown on the face of the Deed signed by Defendant Russell to
the Defendant Roach.
27. The Department of Justice can not represent all
Defendant federel agents when all evidence shown and
indicates that all agents and federal employee acted out the
scope of their laws and regulation pursuant to 28 CFR 50.15.
Il.
STATEMENT OF FACTS
28. All events depicted herein started on March 10, 1992
when Omega received a visit from Curtis demanding money
and threatened to arrest Omega.
29. Defendant Curtis approximately every other week from
March of 1992 was demanding money in the amount of
$500,000.00 dollars and that he could work something out
and forget the rest. Plaintiff Omega refused to pay him any
amount.
30. Defendant Curtis stated since Omega was not going to
cooperate that Curtis was going to take action against Omega
and put him out of business.
31. Plaintiff Omega could not understand why Curtis was
doing this to him.
32. Plaintiff Omega started communication with the main
office in Atlanta and in Jacksonville but did not receive any
assistance.
33. Plaintiff Omega received two Notices of Federal Tax
Lien -- one was filed in the Public Records on the 4th day of
May, 1992 and the other on the 11th day of May, 1992 in the
amount of $214,957.67 dollars, and Five other liens were
filed in the Public Records in the aggregated amount of
$347,433.25 dollars. The Notice of Federal Tax Lien under
A-9
the Internal Revenue Laws that Defendant, Curtis, has filed
against Plaintiff, Omega, failed to identify the tax liability
pursuant to the Code of Federal Regulation 26 CFR.
301.6323 (F)-1(c)(2). It also failed to state the Particular
kind of tax pertaining to the Plaintiff, Omega, and the Federal
Regulation that gives Force and Effect to implement the
validity of the lien.
34. Defendant Curtis filed a Notice of Federal Tax Lien
against the Plaintiff Omega without Regulation Authority to
act as stated at 37 FR 20961-20990, 38 FR 23341 and 23342,
and 38 FR 30011 and 30012.
35. Defendant Curtis on December 13, 1992 Unlawfully and
without Regulation of authority seized all bank accounts from
Omega leaving Omega without money.
36. On August 10, 1992, Omega got home and found that
Curtis and other agents had unlawfully gained entrance to
Omega's home taking all of the personal property belonging
to Omega and other items not belonging to Omega from
inside the house and loaded it into a mover truck seizing from
personal items to cash. Omega asked Curtis if he had a
judgment from the Court allowing Curtis to take Omega's
property and Curtis responded that Curtis did not need a
judgment to do that and that Curtis was going to take all of
the property from Omega and others ana that Curtis was
going to sell it, and that Curtis was going to arrest them.
Curtis ordered two agents to take Omega and his wife in to
custody and put Omega and his wife seated in a chair while
the two agents with guns inside their pokets faced the
detainee Plaintiff for more than three hours. During the arrest
Omega requested Curtis to allow Omega's wife to use the
restroom and Curtis denied Omega's wife the use of the
restroom. Omega requested a second time that his wife
needed to use the restroom and one of the arresting agents
told Omega that if Omega would not be quiet that the agent
was going to use physical force against Omega. Omega's wife
asked one more time, but this time to use the telephone and
Curtis responded no you may not use the phone unless you
want to get beaten. At that moment, Omega and his wife
A-10
stopped asking in fear of their lives. After Curtis and his
other agents finished taking everything they left.
37. Defendant Curtis unlawfully and without any authority of
Regulation has taken the interest of Plaintiff Rosado that was
in Omega's houses causing damages to the Plaintiff Rosado.
38. Defendant Curtis unlawfully and without any authority of
Regulation has taken the property that the Plaintiff Gary, son
of Omega, had at one of Omega's houses causing damages to
the Plaintiff Gary.
39. Defendant Steele unlawfully and without authority of
Regulation has damaged all Plaintiffs in this complaint by
issuing an order to Curtis to make search and seizure of all
properties and in violation prusuant to Title 26 U.S.C.
Section 7403 (a). Defendant Steele knew that the Notice of
Federal Tax Lien can not be enforced until the Revenue
Agent obtains a judgment from the U. S. District Court by
filing a civil action in the U. S. District Court to enforce the
lien of the United States. No judgment was ever filed and no
civil action was ever filed by the revenue agents in District
Court in which Defendant Steele has probable cause to issue
an order for entry on the premises to effect levy. The
unlawful act committed by the Defendant Steele has caused
damages to all Plaintiffs in this complaint.
40. FIRST CAUSE! All Plaintiffs suffered emotional and
monetary punishment in violation of Title 42 U.S.C. Section
1983 by the unreasonable actions of the Defendants on
August 11, 1992 by depriving all the Plaintiffs of their
property and Omega for depriving him and his wife, liberty
and property without due process of law.
41. SECOND CAUSE! Plaintiffs suffered emotional
punishment in violation of the Title 42 U.S.C. Section 1985
when the Defendants Revenue Agents, in conspiracy with
Steele and Roach, non-agents, acted by the unreasonable
actions to deprive the Plaintiffs of their property on the day of
August 11, 1992.
42. THIRD CAUSE! Plaintiffs suffered emotional and
monetary punishment in violation of Title 42 U.S.C. Section
1986 when Revenue Agents and Steele knowingly acted to
A-11
take someone's property without a judgment. They knew that
would constitute a violation of due process of law.
Defendant Steele could have prevented it, but did nothing to
prevent the commission of the uniawful acts, and instead
aided to the commission of the unlawful acts.
43. FOURTH CAUSE! Plaintiffs’ Fifth and Fourteenth
Amendment rights to due process were violated by
Defendants when they entered the premises without a warrant
and took possession of the premises and/or allowed intruders
to take possession of personal and other persons’ property.
44. FIFTH CAUSE! Plaintiffs suffered both physical, and
emotional cruel and unusual punishment in violation of the
Fifth and Fourteenth Amendment by the unlawful and
unreasonable actions of the Defendants on August 11, 1992,
by depriving Plaintiffs of all of their property without the
authority of the Federal Regulations to implement lien, levy
and seizure.
45. SIXTH CAUSE! Pilaintiffs' substantive rights to life,
liberty, and pursuit of happiness were denied by Defendants
when they organized and were allowed to Organize as a
standing army in time of peace, and invaded the Plaintiffs
Omega's premises by troops which were kept up, trained, and
controlled by Defendant Curtis and the IR.S. as used without
the exceptions of riot, insurrection, or invasion, in violation of
Article I, Section 10, Subsection (3).
46. SEVEN CAUSE! Plaintiffs subtantive rights to property
and pursuit of happiness were deprived and violated when all
of the defendants in this complaint acted without the
regulations that gives force and effect to section 6331 to levy
and seize the Plaintiffs’ properties. The Plaintiffs will show
substantial evidence beyond reasonable doubt as follow,
1. On Friday, December 11, 1992, a Proposed Rules was
published in the Federal Register to amend that levy and
distraint from 26 CFR part 301. section 6331 to 26 CFR part
1. section 6331 which will read as follows, 26 CFR 1.633 1-1,
this particular regulation would give the authority to the IRS
to levy and distrain from a taxpayer. This particular part 1.,
and section 6331 never was passed in effect by Congress and
A-12
this is reflected on the Income Tax Proposed Regulation
published in 1992, 1993, and 1994 that the IRS does not have
regulations to take, levy or seize the Plaintiffs’ properties, and
in support of this paragraph the Plaintiffs show to this Court
as exhibit "G" incorporated herein as reference containing
five pages, the proposed regulation.
2. Part 1. of Title 26 CFR of income tax is the part that
authorized the IRS to enforce the IRS revenue laws lien, levy
and seizure. The IRS is lacking of statutes and regulations for
the IRS or any agents employeed by the IRS to levy and seize
the Plaintiffs properties.
PENDANT CAUSE OF ACTION
47. All allegations and exhibits set forth in paragraph 1
through 46 are incorporated herein by reference.
48. Defendants Curtis, other Defendant Agents are parties to
one or more contracts authorized by I.R.S. employer and
employees between themselves and the Treasury Department.
49. Defendants Steele and revenue agents were in violation
of their authorized contracts pursuant to the Constitution of
the United States of America, on the day of August 11, 1992,
when the Defendants revenue agents went to the premises and
unlawfully entered without legal authority.
50. Defendants actions viclated Article I, Section 2, Section
6, Section 9, Section 11, Section 12, Section 17, Section 23
of the Constitution of Florida. This Court has pendent
jurisdiction to hear and adjudicate these claims.
51. All the defendants named in this complaint have 20
calendar days to answer the Plaintiffs complaint in their
individual capacities, and 60 days to answer the Plaintiffs
complaint in their official capacities.
WHEREFORE Plaintiffs demand judgment against
the Defendants jointly and severally, as follows:
a) A declaratory Judgment pursuant to the Federal Rules of
Civil Procedure, Rule 57, That the sections 6321 and 6331
found in the IR Code used by the defendants to lien, and seize
all the Plaintiffs properties pertain to the Bureau of Alcohol,
ee
Lure 8
A-13
Tobacco and Firearms known as ATF under part 70 of the 27
CFR. (Exhibit "B" attached to this complaint and
incorporate herein as reference. )
b) A declaratory judgment pursuant to the Federal Rules of
Civil Procedure, Rule 57, that the Internal Revenue Service
can not enforce the Bureau of Alcohol, Tobacco and Firearms
revenue laws pursuant to Title 27 USCA section 204 84.
(Exhibit "C" incorporate herein as reference and attached to
this complaint).
c) A declaretory judgment pursuant to the Federal rules of
Civil Procedure, Rule 57, that the Department of the Treasury
by a Treasury decision transferred from the Internal Revenue
Service (IRS) to ATF the functions associated with enforced
tax collections activities. The exhibit "I" incorporated herein
as reference and attached to this complaint will show that
section 6321 and 6331 that the Internal Revenue Service used
to seize the Plaintiffs properties pertain to the ATF under
Title 27 CFR part 70. (Exhibit "I" is composed of 6 pages).
d) A declaratory judgment pursuant to the Federal Rules of
Civil Procedure, Rule 57, that the order sign by the defendant
Steele was out of the scope of his Jurisdiction to issue such
order because section 6331 pertains to ATF and not to IRS.
(Exhibit "B", "C", "I". and "J" are attached to this
complaint.)
e) A declaratory judgment pusuant to the Federal Rules of
Civil Procedure, Rule 57, that the action of the defendant
revenue agent Russell of signing and transfering title of
properties from the Plaintiffs to the defendant Roach under
section 6331 was out of the scope of defendant Russell
employment, rules and regulations, jurisdiction because 6331
pertain to ATF part 70 of Title 27 CFR, and that thet transfer
of title of properties shall be void and given back to the
Plaintiffs.
f) A declaratory judgment pursuant to the Federal Rules of
Civil Procedure, Rule 57, that the Notice of F ederal Tax Lien
under Internal Revenue Laws section 632] filed by the
defendant Curtis was an action outside the scope of his
employment, rules regulations because Exhibit 5 a yah iad ies
rnin sss
A-14
and "J" show that the section 6321 found in the IR Code
pertain to the ATF part 70 of the 27 CFR, and that all Notice
of Federal Tax Lien shall be removed immediately.
g) A declaratory Judgment pursuant to Federal Rules of Civil
Procedure, Rule 57, that the actions of Defendants Revenue
Agents and Defendant Steele on August 11, 1992, constituted
an unlawful forcible entry and seizure of Plaintiff Omega's
house and chattel property and the property of other Plaintiffs
in this complaint, in violation of the United States
Constitution, Fourth, Fifth, and Fourteenth Amendment;
h) A declaratory judgment pursuant to the Federal Rules of
Civil Procedure, Rule 57, that the use of force by the
Defendants Revenue Agents on August 11, 1992 at Plaintiff
Omega's house was the use of a standing army in time of
peace as prohibited by Article I, Section 10, of the United
States Constitution and Article I, Section 2, Section 6,
Section 9, Section 11, Section 12, Section 17, and Section 23
of the Florida Constitution;
i) A declaratory judgment pursuant to the Federal Rules of
Civil Procedure, Rule 57, that to deny the Plaintiff Omega the
use of their food, house, vehicles, money, work tools, and
equipment for over one year following August 11, 1992, and
during the winter, amounted to cruel and unusual punishment
in violation of the Eight Amendment to the United States
Constitution.
j) A declaratory judgment pursuant to the Federal Rules of
Civil Procedure, Rule 57, that to deny the Plaintiffs Rosado
and Gary of their use of their house, work tools, and
equipment for over one year following August 11, 1992,
during the winter, amounted to cruel and unusual punishment
in violation of the Eight Amendment to the United States
Constitution.
k) A declaratory judgment pursuant to the Federal Rules of
Civil Procedure, Rule 57, under this Court's pendant
jurisdiction that Plaintiffs retain actual possession of the
premises because of the use of force in the seizure thereof;
1) A declaratory judgment pursuant to the Federal Rules of
Civil Procedure, Rule 57, that the exhibit "J" incorporate in
a
A-15
this complaint and all other exhibits incorporated in this
complaint that the IRS agents acted without authorities of the
Statutes and the regulations to levy and seize the Plaintiff's
properties.
m) As compensatory and consequential damages as follows:
l- Defendant Curtis the sum of $1,500,000.00 dollars in his
individual capacity and the sum of $1,500,000.00 dollars in
his official capacity.
2- Defendant Dorman the sum of $1,500,000.00 dollars in
her individual capacity and the sum of $1,500,000.00 dollars
in her official capacity.
3- Defendant Roach the sum of $1,500,000.00 dollars in his
individual capacity.
4- Defendant Russell the sum of $1,500,000.00 dollars in her
individual capacity and the sum of $1,500,000.00 dollars in
her official capacity.
5- Defendant Smith the sum of $1,500,000.00 dollars in his
individual capacity and the sum of $1,500,000.00 dollars in
his official capacity.
6- Defendant Weiss the sum of $1,500,000.00 dollars in her
individual capacity and the sum of $1,500,000.00 dollars in
her official capacity.
7- Defendant Steele the sum of $1,500,000.00 dollars in his
individual capacity and the sum of $1,500,000.00 dollars in
his official capacity.
8- Defendant Dale the sum of $1,500,000.00 dollars in his
individual capacity and the sum of $1,500,000.00 dollars in
his official capacity.
9- Defendant John and Jane Doe # 1-10 the sum of
$1,500,000.00 dollars each defendant. in their individual
capacities and the sum of $1,500,000.00 dollars in their
official caoacities.
m) As punitive damages as follows;
10- Defendant Curtis the sum of $1,500,000.00 dollars in his
individual capacity and the sum of $1,500,000.00 dollars in
his official capacity.
11- Defendant Dorman the sum of $1,500,000.00 dollars in
her individual capacity and the sum of $1,500,000.00 dollars
A-16
in her official capacity.12- Defendant Roach the sum of
$1,500,000.00 dollars in hi individual capacity.
13- Defendant Russell the sum of $1,500,000.00 dollars in
her individual capacity and the sum of $1,500,000.00 dollars
in her official capacity.
14- Defendant Smith the sum of $1,500,000.00 dollars in his
individual capacity and the sum of $1,500,000.00 dollars in
his official capacity.
15- Defendant Weiss the sum of $1,500,000.00 dollars in her
individual capacity and the sum of $1,500,000.00 dollars in
her official cpacity.
16- Defendant Steele the sum of $1,500,000.00 dollars in his
individual capacity and the sum of $1,500,000.00 dollars in
his official capacity.
17- Defendant Dale the sum of $1,500,000.00 dollars in his
individual capacity and the sum of $1,500,000.00 dollars in
his official capacity.
18- Defendant John and Jane Doe # 1-10 the sum of
$1,500,000.00 dollars for each defendants in their individual
capacities and the sum of $1,500,000.00 dollars for each
defendants in their official capacities.
n) The costs and disbursements of this action;
0) All attorney's fees incurred in prosecuting this action
pursuant to Title 42 U.S.C. Section 1988;
p) The night to amend this complaint as needed;
q) Such other and further relief as to the Court seems proper.
Date: July 25, 1994.
Trial By Jury is Hereby Demanded pusuant to Federal Rules
of Civil Procedures, Rule 38 (a), (b).
/s/ Elliott Rosado, In Propria Person
/s/ Omega Farris, In Propria Persona
/s/ Gary Farris, In propria persona
/s/ Sherry Farris, In Propria Persona
STATE OF FLORIDA )
) ss) VERIFICATION
COUNTY OF ORANGE )
a ss—“—sSSCiS
A-17
We, Omega Farris, Sherry Farris, Gary Farris and
Elliott Rosado, Plaintiffs in the attached complaint tor
Damages, do declare under penalty of perjury under the laws
of the United States of America, and pursuant to Title 28
U.S.C. Section 1746(1), that the foregoing is true and correct
to the best of our knowledge and belief
/s/ Omega Farris /s/ Sherry Farris
/s/ Gary Farris /s/ Elliott Rosado
Sworn to before me, a Notary Public, in my presence this 25
day of July, 1994.
/s/ Jack Morden
Notary Public
JACK MORDEN
Notary Public, State of Florida
My Comm. Expires Feb. 15, 1998
No. CC 348603
Bonded Thru Official Notary Service
A-18
TABLE I -- AUTHORITIES
USCS TO CFR
USCS CFR
26 USCS--Continued
Title 26 Sections 27 CFR Parts
OSZE.. ccecessssoctenscnsonsevervsasberennensetbeeenseseetsinioegsaneseote 27 Part 70
CSF Ga Dacnsetitntevevsvincaevevescectensecenesensninnsetaeeeserents 27 Part 70
T4O1 .noreccescesccnssoocosvnberoossonessnsnoosonssosesononcoteonessseseees 27 Part 70
TOO .cscscsnssseneenssvoovcnenee Does not have an mplementing
regulation in Part 70 of 27 CFR or in Part 1 of 26 CFR
VNB eisai. Aiicindlialicon isis aeyith 27 Part 70
1601, 1606, 7608, 6B es 27 Part 70
7602. Asie ise thais 27 Parts 170, 296
EXHIBIT "B"
(ONE PAGE)
Received Mar 29, 1994
UNITED STATES CODE
ANNOTATED
Title 27
Intoxicating Liquors
1994
Cumulative Annual Pocket Part
Replacing 1993 pocket part in back of 1927 bound volume
; Includes the Laws of the
103rd CONGRESS, FIRST SESSION (1993)
For close of Notes of Decisions
See page III
For Later Laws and Cases
Consult
USCA
Interim Pamphlet Service
WEST PUBLISHING CO.
ST. PAUL, MINN.
EXHIBIT "C"
(TWO PAGES)
A-20
27 Section 204 INTOXICATING LIQUORS
Note 8
8a. Bureau of Internal Revenue
The Bureau of Internal revenue is not authorized to
enforce this chapter nor to compel obedience to an order
suspending basic permit of wholesale liquor dealer, and
therefore its view of the legal effect of such a suspension
order is not material in proceeding in Circuit Court of
Appeals to review such an order. Strauss v. Berkshire, C.A.8,
1943, 132 F.2d 530.
26
EXHIBIT "C"
A-21
LAW DICTIONARY
Definitions of the Terms and Phrases of
American and English Jurisprudence,
Ancient and Modern
By
HENRY CAMPBELL BLACK, M. A.
SIXTH EDITION
BY
THE PUBLISHER'S EDITORIAL STAFF
Coauthors
JOSEPH R. NOLAN
Associate Justice, Massachusetts Supreme Judicial Court
and
JACQUELINE M. NOLAN-HALEY
Associate Clinical Professor,
Fordham University School of Law
Contributing Authors
M. J. CONNOLLY
Associate Professor (Linguistics),
College of Arts & Sciences, Boston College
STEPHEN C. HICKS
Professor of Law, Suffolk University
Law School, Boston, MA
MARTINA N. ALIBRANDI
Certified Public Accountant, Bolton, MA
ST. PAUL, MINN.
WEST PUBLISHING CO.
1990
EXHIBIT "D"
(TWO PAGE)
A-22
816
*
*
*
Internal Revenue Code (I. R. C.). That body of law which
codifies all federal tax laws including income, estate, gift,
excise, etc. taxes. Such laws comprise Title 26 of the U. S.
Code, and are implemented by the Internal Revenue Service
and through it by Treasury Regulations; Revenue Rulings, etc.
Because of the extensive revisions to the tax statutes that
occurred with the Tax Reform Act of 1986, Title 26 of the U.
S. Code is now known as the Internal Revenue Code of 1986.
Internal Revenue Service. The Internal Revenue Service
(LR.S.) is responsible for administering and enforcing the
internal revenue laws, except those relating to alcohol,
tobacco, firearms, explosives, and wagering. It is a part of
the Department of the Treasury. Basic IRS. activities
include providing taxpayer service and education;
determination, assessment, and collection of internal revenue
taxes; determination of pension plan qualification and exempt
Organization status; and preparation and issuance of rulings
and regulations to interpret the provisions of the Internal
Revenue Code.
* @¢©@ @ ©
EXHIBIT "D" -- Continued
FORM 668 (Y)
Department of the Treasury - Internal Revenue Service
NOTICE OF FEDERAL TAX LIEN
UNDER INTERNAL REVENUE LAWS
District: Jacksonville, FL Serial Number: 599227123
As provided by sections 6321, 6322, and 6323 of the
Internal Revenue Code, notice is given * * * *
Name of Taxpayer: OMEGA FARRIS
Residence: 12737 MONTE VISTA RD
CLERMONT, FL 34711-8415
IMPORTANT RELEASE INFORMATION: With respect
to each assessment listed below, unless notice of lien is
_ refiled by the date given in column (e), this notice shall,
| on the day following such date, operate as a certificate of
release as defined in IRC 6325(a).
Kind Tax Date of Last Unpaid
of Period Identifying Assess- Dayfor Balance of
Tax Ended Number ment Refiling Assessment
(a) (b) (c) (d) (e) p
941 03/31/88 59-3070544 11/04/91 12/04/01 13222.66
941 06/30/88 59-3070544 11/04/91 = 12/04/01 14102.19
941 09/30/88 59-3070544 11/04/91 = 12/04/01 12984.13
941 12/31/88 59-3070544 11/18/91 = 12/18/01 12648.97
941 03/31/89 59-3070544 11/04/91 12/04/01 18107.99
941 06/30/89 59-3070544 11/04/91 12/04/01 13160.35
940 12/31/90 59-3070544 11/04/92 12/04/02 8742.50
EXHIBIT "E"
(TWO PAGE)
A-24
Place of Filing:
CLERK OF CIRCUIT COURT
LAKE COUNTY
TAVARES, FL 32778 Total 190604.16
This notice was prepared and signed at Jacksonville,
FL, on this, the 11th day of May, 1992.
Signature: forJ. CURTIS Title: Revenue Officer
EXHIBIT "E"
(TWO PAGE)
A-25
FORM 668 (Y)
Department of the Treasury - Internal Revenue Service
NOTICE OF FEDERAL TAX LIEN
UNDER INTERNAL REVENUE LAWS
District: Jacksonville, FL Serial Number: 599224966
As provided by sections 6321, 6322, and 6323 of the
Internal Revenue Code, notice is given * * * *
Name of Taxpayer: OMEGA FARRIS
Residence: 12737 MONTE VISTA RD
CLERMONT, FL 34711-8415
IMPORTANT RELEASE INFORMATION: With respect
| to each assessment listed below, unless notice of lien is
| refiled by the date given in column (e), this notice shall.
__ on the day following such date, operate as a certificate of
| release as defined in IRC 6325(a).
Kind Tax Date of Last Unpaid
of Period Identifying Assess- Dayfor Balance of
Tax Ended Number ment Refiling Assessment
(a) (b) (c) (d) (e) p
941 03/31/88 59-3070544 11/04/91 12/04/01 13210.66
941 06/30/88 59-3070544 11/04/91 12/04/01 14102.19
941 09/30/88 59-3070544 11/04/91 12/04/01 12984.13
941 12/31/88 59-3070544 11/18/91 12/18/01 12648.97
941 03/31/89 59-3070544 11/04/91 12/04/01 18107.99
94] 06/30/89 59-3070544 11/04/91 12/04/01 13160.35
941 09/30/89 59-3070544 11/04/91 12/04/01 12776.24
941 12/31/89 59-3070544 11/04/91 12/04/01 11982.63
*
: *
940 12/31/89 59-3070544 11/04/91 12/04/01 12185.58
EXHIBIT "E"
(TWO PAGE)
A-26
Place of Filing:
CLERK OF CIRCUIT COURT
LAKE COUNTY
TAVARES, FL 32778 Total 197245.29
This notice was prepared and signed at Jacksonville,
FL, on this, the 04th day of May, 1992.
Signature: forJ. CURTIS Title: Revenue Officer
EXHIBIT "E"
(TWO PAGE)
A-27
Department of the Treasury
Internal Revenue Service
Form 2433
NOTICE OF SEIZURE
Name and Address: Omega & Sherry Farris
12737 Monte Vista Rd.
Clermont, FL 34711
Under the authority of section 6331 of the Internal Revenue
Code, and by virtue of a levy from the District Director of Internal
Revenue of the district shown below, I have seized the property below for
nonpayment of past due internal revenue taxes.
Due from: Omega & Sherry Farris
12737 Monte Vista Rd.
Clermont, FL 34711
Amount: $389, 503.22
Internal Revenue District: Jacksonville. FL
Description of property:
oa
*
~~
Signature of Revenue Officer making seizure: /s/ _(illegible)
Address: 1040 Woodcock Rd., Suite 100
Orlando, FL 32803
Date: 8/11/92
Signature of accompanying employee: /s/ V.H. Baird
Address: 1040 Woodcock Rd., Suite 100
Orlando, FL 32803
Date: 8/11/92
EXHIBIT "F"
(TWO PAGE)
A-28
Department of the Treasury
Internal Revenue Service
Form 2433
NOTICE OF SEIZURE
Name and Address: Omega & Sherry Farris
12737 Monte Vista Rd.
Clermont, FL 34711
Under the authority of section 6331 of the Internal Revenue
Code, and by virtue of a levy from the District Director of Internal
Revenue of the district shown below, I have seized the property below for
nonpayment of past due internal revenue taxes.
Due from: Omega & Sherry Farris
12737 Monte Vista Rd.
Clermont, FL 34711
Amount: $389, 503.22
Internal Revenue District: Jacksonville, FL
Description of property:
*«
a
«
Signature of Revenue Officer making seizure: /s/_ J. Curtis
Address: 1040 Woodcock Rd., Suite 100
Orlando, FL 32803
Date: 8/11/92
Signature of accompanying employee: /s/ R. Broughton
Address: 1040 Woodcock Rd., Suite 100
Orlando, FL 32803
Date: 8/11/92
EXHIBIT "F"
(TWO PAGE)
A-29
Form 668-B Department of the Treasury -- Internal
Revenue Service
LEVY
Page | of 2
Due From: _ Eric E. Lutes, as Nominee of
Omega & Sherry Farris
12737 Monte Vista Road
Clermont, Florida 34711
Originating Internal Revenue District: Jacksonville, FL
Kind Tax Date Taxpayer Unpaid Statutory Total
of Period of L D. Bal. Additions
Tax Ended Assess.
1040 12/31/88 10/11/91 420-52-
5763 $33,030.13 $5,098.69 $ 38,128.82
*
*
Total amount due $ 389,503.22
The amounts shown above are now due, owing, and unpaid to
the United States from the above taxpayer for internal revenue taxes.
Notice and demand have been made for payment. Chapter 64 of the
Internal Revenue Code provides a lien for the above tax and statutory
additions. Section 6331 of the Code authorizes collection of taxes by
levy on all property or rights to property of a taxpayer, except property
that is exempt under Code section 6334. Therefore, under the provisions
of Code 6331, so much of the property or rights to property, either real
or personal, as may be necessary to pay the unpaid balance of assessment
shown, with additions provided by law, including fees, costs, and
expenses of this levy, are levied on to pay the taxes and additions.
Dated at Orlando, Florida, August 10, 1992.
Signature of Revenue Officer: /s/ J. Curtis
Telephone Number: (407) 648 - 6201
Date: August 10, 1992
EXHIBIT "G"
(TWO PAGE)
A-30
Form 668-B Department of the Treasury -- Internal
Revenue Service
LEVY
Page 2 of 2
Due From: Omega & Sherry Farris
12737 Monte Vista Road
Clermont, Florida 34711
Originating Internal Revenue District: Jacksonville
Kind Tax Date Taxpayer Unpaid Statutory Total
of Period of L D. Bal. Additions
Tax Ended Assess.
1040 12/31/88 10/11/91 420-52-
5763 $33,030.13 $4,228.29 $37,258.42
1040 12/31/89 10/11/91 420-52-
5763 30,833.25 3,920.64 34,753.89
1040 12/31/90 10/11/91 420-52-
5763 = 68,612.20 9,144.73 77,756.93
&
a
*
Total amount due $ 149,769.24
The amounts shown above are now due, owing, and unpaid to
the United States from the above taxpayer for internal revenue taxes.
Notice and demand have been made for payment, Chapter 64 of the
Internal Revenue Code provides a lien for the above tax and statutory
additions. Section 6331 of the Code authorizes collection of taxes by
levy on all property or rights to property of a taxpayer, except property
that is exempt under Code section 6334. Therefore, under the provisions
of Code 6331, so much of the property or rights to property, either real
or personal, as may be necessary to pay the unpaid balance of assessment
shown, with additions provided by law, including fees, costs, and
expenses of this levy, are levied on to pay the taxes and additions.
Dated at Orlando, Florida, June 1, 1992.
Signature of Revenue Officer: /s/ J. Curtis
Telephone Number: (407) 648 - 6201
Date: June 1, 1992
EXHIBIT "G"
A-31
Filed August 6, 1992
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
IN THE MATTER OF THE TAX )
INDEBTEDNESS OF )
)
Omega Farris and Sherry Farris ) Docket No.:
12737 Monte Vista Rd. ) 92-0174 M
Clermont, Florida 34711 )
ORDER FOR ENTRY ON PREMISES
TO EFFECT LEVY
Joseph Curtis, a Revenue Officer of the United States
Internal Revenue Service, has filed an application requesting
authorization for him and/or other designated Internal
Revenue Service personnel io enter the premises located at
12737 Monte Vista Rd., Clermont, Florida 34711, in order
to seize property in satisfaction of unpaid Federal taxes. The
Court finds, on the basis of the application and supporting
affidavit, that there is probable cause to believe that property
or rights to property of Omega Farris and Sherry Farris,
which are subject t levy by the United States, are located on
or within the premises described, it is
ORDERED that Revenue Officer Joseph Curtis and/or
other designated Internal Revenue Service personnel are
authorized to enter the premises described and to make such
search as is necessary in order to levy and seize. In making
this search and seizure, however, such Internal Revenue
Service personnel are directed to enter the premises during
business hours or the daytime, and within ten days of this
Order, computed in accordance with Federal Rules of Civil
Procedure 6 (a), and to make reasonable
EXHIBIT "H"
(TWO PAGE)
A-32
entries thereafter to effecturate any disposition of seized
property. A return stating what property has been seized shall
be filed with the Court.
DONE AND ORDERED at Jacksonville, Florida, this
6th day of August, 1992.
/s/ John E. Steele
UNITED STATES MAGISTRATE JUDGE
ade
EXHIBIT "H"
Per ee en ee ee
A-33
Federal Register / Vol. 55, No. 220 / Wednesday, November
14, 1990 / Rules and Regulations
DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
27 CFR Parts 19, 24, 25, 70, 170, 179, 194, 197, 250, 270,
275, 285, 290, and 296
(T. D. ATF - 301)
Change in Responsibility for Enforced Collection of
Certain Alcohol, Tobacco, and Firearms Taxes
ACENCY: Bureau of Alcohol, Tobacco and Firearms
(ATF), Department of the Treasury.
ACTION: Treasury decision, final rule.
SUMMARY: This Treasury decision will transfer from the
Internal Revenue Service (IRS) to ATF the functions
associated with enforced collection of delinquencies of the
special (occupational) tax, the domestic excise tax on
distilled spirits, wine, malt beverages, tobacco products,
cigarette papers and tubes, and the firearms tax imposed by
subtitle E of the Internal Revenue Code. Furthermore, certain
procedural and administrative rules are being adopted from
IRS regulations in 26 CFR 301 to ATF regulations in 27 CFR
part 70. In addition, changes in part 70 are being made to
reflect amendents made to 26 U.S.C. 6651 and 6656 by the
Omnibus Budget Reconciliation Act, Public Law 101-239.
EFFECTIVE DATE: October 1, 1990.
EXHIBIT "I"
(SIX PAGE)
A-34
ca
aa
*
PART 70-- [AMENDED]
Par. 12. The authority citation for part 70 is revised
to read as follows:
Authority: 5 U.S.C. 301 and 552; 26 U.S.C. 5146,
5203, 5207, 5275, 5367, 5415, 5504, 5555, 5684(a), 5741,
5761(b), 5802, 6020, 6021, 6064, 6102, 6155, 6159, 6201,
6203, 6204, 6301, 6303, 6311, 6313, 6314, 6321, 6323,
6325, 6326, 6331-6343, 6401-6404, 6407, 6423, 6501-6503,
6511, 6513, 6514, 6532, 6601, 6602, 6611, 6621, 6622,
6651, 6653, 6656, 6657, 6658, 6665, 6671,. 6672, 6701,
6723, 6801, 6862, 6863, 6901, 7011, 7101, 7102, 7121,
7122, 7207, 7209, 7214, 7304, 7401, 7403, 7406, 7423,
7424, 7425, 7426, 7429, 7430, 7432, 7502, 7503, 7505,
7506, 7513, 7601-7606, 7608-7610, 7622, 7623, 7653, 7805.
Par. 13. Part 70 is amended by redesignating the
sections in the left-hand column below as the sections in the
right-hand column:
EXHIBIT "I"
|
nn
A-35
on the property subject to the security interest and amounts
paid by the holder of the lien or security interest to repair the
property. Such reasonable costs also include the amounts
paid by the holder of the lien or security interest in a leasehold
to the lessor of the leasehold to preserve the leasehold subject
to the lien or security interest. Accordingly, the amount of
the lien or security interest which is protected is increased by
the amounts so expended by the holder of the lien or security
interest.
(d) Satisfaction of liens. The amounts described in
paragraph (a)(6) of this section include expenditures incurred
by the protected holder of a lien or security interest to
discharge a statutory lien for State sales taxes on the property
subject to the lien or security interest and the sales tax lien
have priority over a Federal tax lien. Accordingly, the
amount of the lien or security interest is increased by the
amounts so expended by the holder of the lien or security
interest even though under local law the holder of the lien or
security interest is not subrogated to the nghts of the holder
of the State sales tax lien. However, if the holder of the lien
or security interest is subrogated, within the meaning of s.
70.144 (b) of this part, to the rights of the holder of the sales
tax lien, the holder of the lien or security interest will also be
entitled to any additional protection afforded by 26 U.S.C.
6323 (i)(2).
(26 U.S.C. 6323)
7x
EXHIBIT "I"
* A-36
~
w
«*
s. 70.150 Release of lien or discharge of property.
EXHIBIT "I"
— — OO
A-37
&
Seizure of Property for Collection of Taxes
s. 70.161 Levy and distraint.
(a) Authority to levy (1) In general. If any person
liable to pay any tax neglects or refuses to pay the tax within
10 days after notice and demand, the regional director
(compliance) or Chief, Tax Processing Center who initiated
the assessment (or, on that official's request, any other
regional director (compliance) or the Chief. Tax Processing
Center) may proceed to collect the tax by levy, provided the
taxpayer has been furnished the notice described in s.
70.162(a) of this part. The regional director (compliance) or
the Chief, Tax Processing Center may levy upon any property,
or rights to property, whether real or personal, tangible or
intangible, belonging to the taxpayer! regional director
(compliance) or the Chief, Tax Poca Con may also
levy upon property with respets to Swhich there is a lien
provided by 26 U.S.C. 6321 forthe payment of the tax.
* y
*
*
hee
EXHIBIT "I"
A-38
12-11-92
Vol. 57 No. 239
Friday
December 11, 1992
federal register
EXHIBIT "J
(FIVE PAGE)
$8
’
’
A-39
58760 Federal Register / Vol. 57, No. 239 / Friday, December 11,
1992 / Proposed Rules
a
x
° |
DEPARTMENT OF TREASURY
Internal Revenue Service
26 CFR Part 301 [GL-709-88]
RIN 1545 - AM70
Levy and Distraint
AGENCY: Internal Revenue Service, Treasury.
ACTION: Notice of proposed rulemaking.
SUMMARY: This document contains a proposed regulatory
amendinent regarding the authority to collect taxes by means
of levy and distraint. The Technical and Miscellaneous
Revenue
58761
Federal Register / Vol. 57, No. 239 / Friday, December 11, 1992 /
Proposed Rules
Act of 1988 (TAMRA), amended section 6331 of the
Internal Revenue Code concerning the collection of tax by
means of levy in several respects.
+
*
*
Explanation of Provisions
Some minor changes are proposed to s. 301.6331-1.
The first change relates to section 6332(c), which was
enacted by section 6236(e)1) of TAMRA and which
provides that banks may not surrender funds to the Service
until 21 days after a levy on those funds is served. Prop. reg.
S. 1.6331-1(a)(1) reflects this change by providing that a levy
A-40
on a bank account applies not only to those funds on deposit
at the time the levy is made, but also to any interest that
accrues on those deposits during the 21 day waiting period.
EXHIBIT "J"
A-41
$8762
Federal Register / Vol. 57, No. 239 / Friday, December 11, 1992 hs;
Proposed Rules
+
EXHIBIT "J"
A-42
58763
Federal Register / Vol. 57, No. 239 / Friday, December 11, 1992 /
Proposed Rules
EXHIBIT "J"
A-43
BOOK 1246 PAGE 2450
DEED OF REAL ESTATE
THIS DEED is made this 24th day of August, A. D.
1993, by the District Director, Jacksonville District, Internal
Revenue Service, hereinafter called the grantor, by virtue of a
levy issued against property of, and a sale conducted to
collect unpaid taxes due the United States payable by:
OMEGA FARRIS AND SHERRY FARRIS
12737 Monte Vista Road
Clermont, Florida 34711.
WHEREAS the grantor, through his duly authorized
Internal Revenue Officer, seized the property hereinafter
described and, after giving public notice of the time and place
of sale in the manner and form required by statute, offered
said property for sale under sealed bid on February 17, 1993,
and in accordance with Title 26, United States Code, Sections
6331 through 6342, said grantor sold said property for the
sum of Eighty-Eight Thousand One Hundred Twenty-Three
Dollars and Fifty-five Cents ($88,123.55), that being the
highest bid for same, to:
JOE F. ROACH
1820 Gerda Terrace
Orlando, Florida 32804,
hereinafter called the grantee;
AND WHEREAS, the period for redeeming said
property having elapsed and the original Certificate of Sale as
executed pursuant to Title 26, United States Code, Section
6338 (a), having been delivered to the grantor as required by
Statute;
NOW WITNESSETH, that the grantor, in
A-44
consideration of the sum of money so paid as aforesaid,
receipt of which is hereby acknowledged:
1. Does quitclaim unto the said grantee all the estate,
right, title, and interest which the said OMEGA FARRIS
AND SHERRY FARRIS had on and after the tax assessment
date of October 11, 1991, when the federal tax lien of the
United States for unpaid taxes did attach to such estate, right,
title, and interest, as recorded by notices of federal taxs liens
filed April 30, 1992 and May 14, 1992, in and to all that
certain parcel of land in Lake County, Florida, more
particularly described as follows:
Lot 13, LAKE MONTE VISTA SUBDIVISION, in
Section 33, Township 22 South, Range 25 East, as recorded
in Plat Book 28, pages 16-18, Public Records of Lake
County, Florida.
SUBJECT TO Restrictions of record.
SUBJECT TO Easements of record.
EXHIBIT "K"
(THREE PAGE)
BOOK 1246 PAGE 2451
2. Does discharge by virtue of this sale and deed the
above-described parcel of land from the aforesaid federal tax
liens, and any other federal tax liens recorded thereafter and
prior to the recording of this deed, saving and reserving,
however, the full force and effect of said tax liens against and
upon all other property and rights to property, whether real or
personal, to which said tax liens attach.
TO HAVE AND TO HOLD said described property
unto said grantee and his heirs and assigns forever, as fully
and absolutely as the said grantor can or should quitclaim by
A-45
virtue of said levy and the laws of the United States relating
thereto.
IN WITNESS WHEREOPF, the said grantor has
hereunto set his hand and seal, fhe day and year first above
written.
DISTRICT DIRECTOR
Jacksonville District
BY: /s/ ROSLYN A. RUSSELL
Assistant Chief, Collection Division
Internal Revenue Service
400 West Bay Street
Jacksonville, Florida 32202
Signed, sealed and delivered
in the presence of:
/s/ Patricia A. Groth
/s/ Jacqueline Fitzpatrick
STATE OF FLORIDA )
) ss:
COUNTY OF DUVAL )
Before me, an officer duly authorized in the State and
County above named to take acknowledgments, this day
personally appeared ROSLYN A. RUSSELL, to me well
known and well known by me to be the person who executed
the foregoing instrument as Assistant Chief of the Collection
Division, Jacksonville District, Internal Revenue Service; and
she acknowledged before me that she executed the same on
behalf of the DISTRICT DIRECTOR, Jacksonville District,
Internal Revenue Service, pursuant to a lawful delegation of
authority, and for the purpose therein expressed.
EXHIBIT "K"
A-46
BOOK 1246 PAGE 2452
WITNESS my hand and official seal at Jacksonville,
County and State aforesaid, this 24th day of August A. D.,
1993.
/s/ Jacqueline Fitzpatrick
Notary Public
My Commission Number: CC142537
My Commission Expires: October 15, 1995
Bonded Thru Troy Fein Insurance, Inc.
This Instrument was prepared by:
Jackie Gibbs
Internal Reveriue Service
400 West Bay Street; Stop 5710
Jacksonville, Florida 32202
EXHIBIT "K"
B-1
APPENDIX B
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
Filed 95 Feb 27 PM 3:37
ELLIOT ROSADO, OMEGA FARRIS,
SHERRY FARRIS, & GARY FARRIS
Plaintiffs,
v. CASE NO. 94-0059-CIV-ORL-18
JOSEPH V. CURTIS, PATRICIA E. DORMAN,
ROSLYN A. RUSSELL, JOE F. ROACH,
MARGARET A. WEISS, ORLAND D. SMITH,
DALE F. HART, JOHN DOE # 1-10, & JANE
DOE # 1-10,
Defendants.
ORDER
Elliott Rosado, Omega Farris, Gary Farris, and Sherry
Farris (plaintiffs) bring this action pursuant to 42 U.S.C. ss.
1983, 1985, 1986, and 1988, 18 U.S.C. ss. 872, 876, and
1001, and 26 U.S.C. s. 7214 against Joseph V. Curtis
(Curtis), Patricia E. Dorman (Dorman), Roslyn A. Russell
(Russell, Joe F. Roach (Roach), Margaret A Weiss
(Weiss), Orland D. Smith (Smith), Dale F. Hart (Hart),
and various John Does and Jane Does, alleging violations of
the First, Fourth, Fifth, Eighth, and Fourteenth Amendments
to the United States Constitution. Plaintiffs also raise claims
B-2
under state law. Curtis, Dorman, Russell, Roach, Weiss,
Smith, and Hart (defendants) filed a motion to dismiss, or in
the alternative, motion for summary judgment. Plaintiffs
responded in opposition to the motion. Based on a review of
the case file and relevant law, the court grants summary
judgment in favor of defendants.
I. Facts
Curtis, Dorman, Russell, Weiss, Smith and Hart are
employees of the Internal Revenue Service (IRS). In April of
1992, Curtis, a revenue officer, was assigned the task of
securing the delinquent tax liabilities of Omega Farris and
Sherry Farris. In accordance with his assignment, Curtis
caused to be filed Notices-of Federal Tax Lien with the Clerk
of Circuit Court of Lake County, Florida and with the County
Comptroller of Orange County, Florida on or about April 30,
1992, May 4, 1992, and May 11, 1992. In addition, on May
4, 1992, Curtis issued a Notice of Intent to Levy to Omega
Farris and Sherry Farris with regard to their tax liabilities. On
June 24, 1992, Curtis seized the personal residence of Omega
Farris and Sherry Farris located at 12737 Monte Vista Road,
Clermont, Florida and personally served a Notice of Seizure
on Sherry Farris with regard to the residence which was
seized.
On August 6, 1992, Curtis presented an Application
of Revenue Officer to Enter Premises to Effect Levy with a
memorandum in support to Magistrate Judge John E. Steele
(Magistrate Judge Steele) and executed an affidavit in
support of the application before Magistrate Judge Steele.
Subsequently, Magistrate Judge Steele issued an Order for
Entry on Premises to Effect Levy which allowed Curtis or
other designated IRS personnel to enter the premises at
12737 Monte Vista
B-3
Road, Clermont, Florida -“and to make such search as is
necessary in order to levy and seize." (Doc. 173, Ex. 4.) On
August 11, 1992, Curtis, three revenue officers, and three
IRS special agents went to the residence located at 12737
Monte Vista Road. After a locksmith opened the door,
Curtis, the revenue officers, and the IRS special agents
entered the house, seized certain items, and inventoried the
items seized. While Curtis and the other officers were at the
residence, Omega Farris and Sherry Farris returned to the
residence. Subsequently, on August 11, 1992, Curtis seized a
truck which belonged to Omega Farris.
Sometime later, Omega Farris and Sherry Farris filed
for bankruptcy. After the IRS obtained an order lifting the
automatic stay in the bankruptcy case, the IRS sold Omega
Farris's truck on January 27, 1993. On February 17, 1993,
the IRS sold the residence to Roach. The Deed of Real
Estate which deeded the property to Roach was signed by
Russell as Assistant Chief of the Collection Division of the
IRS located in Jacksonville, Florida. On January 29, 1993,
the personal property which had been seized was sold at
public auction. The proceeds from the sale of truck,
residence, and personal property were applied to the
delinquent tax liabilities of Omega Farris and Sherry Farris.
II. Legal Discussion
A. Standard for Summary Judgment
Summary judgment is authorized if "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that
3
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c); accord Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). "[T]he substantive law will
identify which facts are material. Only disputes over facts
B-4
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.
Factual disputes that are irrelevant or unnecessary will not be
counted." Anderson, 477 U.S. at 248. The moving party
bears the burden of proving that no genuine issue of material
fact exists. Celotex Corp. V. Catrett, 477 U.S. 317, 324-25.
In determining whether the moving party has satisfied its
burden, the court considers all inferences drawn from the
underlying facts in a light most favorable to the party
opposing the motion, and resolves all reasonable doubts
against the moving party. Anderson, 477 U.S. at 255; see
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587-88 (1986). The moving party may rely solely on his
pleadings to satisfy this burden. Ce/otex, 477 U.S. at 323-24;
Fed. R. Civ. P. 56(c). "[T]here is no issue for trial unless
there is sufficient evidence favoring the nonmoving party for a
jury to return a verdict for that party. If the evidence is
merely colorable or is not significantly probative, summary
judgment may be granted." Anderson, 477 U.S. at 249-50
(citations omitted).
B. 18 U.S.C. ss. 872, 876 and 1001 and 26 U.S.C. s.
7214
Plaintiffs apparently bring this action pursuant to
sections 872, 876, and 1001 of Title 18 of the United States
Code. However, the court has been unable
4
to locate authority which would imply a civil cause of action
for violations of these federal criminal code provisions.
Therefore, a private right of action does not exist for
plaintiffs’ claims brought under ss. 872, 876, and 1001. See
Federal Sav. and Loan Ins. Corp. v. Reeves, 816 F.2d 130,
137 (4th Cir. 1987) (finding no basis to imply a civil cause of
action from 18 U.S.C. s. 1001); Williams v. McCausland,
791 F. Supp. 992 (S.D.N.Y. 1992). In addition, plaintiffs
B-5
may not bring a claim for damages pursuant to 26 U.S.C. s.
7214 until after a criminal conviction under the section. See
Brunswasser v. Jacob, 453 F. Supp. 567, 572-73 (W.D.Pa.
1978), aff'd, 605 F.2d 1194 (3d Cir. 1979).
C 42 U.S.C. s. 1983
Plaintiffs bring this action pursuant to s. 1983.
Defendants assert that plaintiffs’ complaint fails to state a
claim for which relief can be granted under s. 1983. To
maintain an action under s. 1983, plaintiffs must show a
deprivation of rights, privileges, or immunities secured by the
Constitution or laws of the United States and that the conduct
complained of was committed by a person acting under color
of state law. Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th
Cir. 1990), cert. denied, 500 U.S. 932 (1991). Because
plaintiffs’ action involves federal officials acting under color of
federal law, plaintiffs fail to state a claim under s. 1983. See
Walker v. Secretary of the Treasury, I.R.S., 713 F. Supp. 403,
409 (N.D.Ga. 1989); Church of Human Potential, Inc. v.
Vorsky, 636 F. Supp. 93, 95-06 (D.N.J. 1986) (stating that
action of IRS employee taken pursuant to federal law cannot
form the
$
basis of a s. 1983 claim; and finding that the mere filing of a
federal tax lien in a state office does not constitute state
action because the state is merely a passive agent of the
federal government in maintaining records of such liens);
Young v. LRS., 596 F. Supp. 141, 145 (N.D.Ind. 1984)
(noting that actions of IRS officials, even if beyond the scope
of their officials duties, are acts done under color of federal
law and not state law, thus making s. 1983 inapplicable),
Komasinski v. LR.S., 588 F. Supp. 974, 978 (N.D.Ind. 1984)
(stating that IRS employees involved in assessment of penalty
and seizure of van were acting under federal law, and thus,
holding s. 1983 inapplicable).
B-6
D. 42 U.S.C. ss. 1985 and 1986
Plaintiffs also bring this action pursuant to 42 U.S.C.
ss. 1985 and 1986. Although the complaint does not indicate
which subsection within s. 1985 applies to plaintiffs’ claim,
plaintiffs allege a conspiracy to deprive them of their
property. Consequently, the court construes plaintiffs’
complaint as an attempt to state a claim under s. 1985(3).
See 42 U.S.C. s. 1985(3) (1988) (referring to conspiracy to
deprive persons of rights or privileges). However, plaintiffs
fail to sufficiently allege the existence of a conspiracy to
interfere with civil rights or present facts to support such a
claim. In addition, plaintiffs fail to allege a class-based
discriminatory motive on the part of the conspirators.
Accordingly, plaintiffs fail to state a claim for relief under s.
1985(3). See Lucero v. Operation of Birmingham, 954 F.2d
624, 627 (11th Cir. 1992) (identifying the elements of a
cause of action under s. 1985(3) to
6
include (1) a conspiracy; (2) for the purpose of depriving,
either directly or indirectly, any person or class of persons of
the equal protection of the laws; and (3) an act in furtherance
of the conspiracy; (4) whereby a person is either injured in
his person or property or deprived of any right or privilege of
a citizen of the United States; and stating that the second
element requires a showing of a racial or otherwise
class-based, invidious discriminatory animus hehind the
conspirator's action); Kaylor v. Fields, 661 F.2d 1177, 1184
(8th Cir. 1981). Further, because a cause of action under 42
U.S.C. s. 1986 is dependent on a valid claim under s. 1985,
the court dismisses plaintiffs’ claim under s. 1986. See id;
Morast v. Lance, 631 F. Supp. 474, 479 (N.D.Ga. 1986,
aff'd, 807 F.2d 926 (11th Cir. 1987).
E. Claims under Article I, Section 10, Clause 3 and the
First and Eighth Amendments
B-7
Plaintiffs assert that their rights under the Eighth
Amendment were violated. However, plaintiffs do not allege
facts to support such a claim within the complaint nor do
plaintiffs argue this issue in their response to the motion for
summary judgment. Plaintiffs reliance on the Eighth
Amendment is inappropriate because defendants’ allegedly
unconstitutional acts did not occur after a formal adjudication
of guilt. See City of Revere v. Massachusetts Gen. Hosp.,
463 U.S. 239, 244 (1983) (quoting Jngraham v. Wright, 430
U.S. 651, 671-72 n.40, stating that "the State does not
acquire the power to punish with which the Eighth
Amendment is concerned until after it has secured a formal
adjudication of guilt in accordance
7
with due process of law."). Therefore, plaintiffs’ claim under
the Eighth Amendment fails to state a claim for relief. In
addition, plaintiffs' claim that their rights under the First
Amendment were violated fails to state a claim for relief
because plaintiffs fail to present facts to support such a claim.
The court notes that plaintiffs assert a violation of
Article I, Section 10, Clause 3 of the United States
Constitution as it pertains to organizing a standing army in
times of peace. The court finds this claim wholly without
merit.
F. Sovereign Immunity
Plaintiffs have sued the IRS employees in both their
individual and official capacities seeking damages and
declaratory relief. A suit against the IRS employees in their
official capacities is, in essence, a suit against the United
States. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458-60
(9th Cir. 1985) (noting that sovereign immunity cannot be
avoided by naming officers and employees of the United
States as defendants). The United States is immune from suit
unless it has expressly waived its immunity and has consented
to suit. See United States v. Shaw, 309 U.S. 495, 500-01
(1940). Although 28 U.S.C. s. 1346(a)(1) provides for an
action against the United States for allegedly erroneous or
illegally assessed taxes, s. 1346(a)(1) has been interpreted to
apply to tax refund cases. See Schon v. United States, 759
F.2d 614, 617 (7th Cir. 1985). Further, s. 1346(a)(1) requires
the taxpayer to pay the assessment before challenging its
validity in district court. See id.; Frasier v. Hegeman, 607 F.
Supp. 318, 322 (N.D.N.Y. 1985). Plaintiffs do not
8
seek a refund in this action but instead seek damages.
Moreover, although the United States has waived its
immunity with regard to some causes of action under the
Federal Tort Claims Act (FTCA), 28 U.S.C. ss. 2671-2680,
the FTCA specifically excludes any claim arising in respect of
the assessment or collection of any tax. See 28 U.S.C. s.
2680(c) (1988); see also Young v. ILR.S., 596 F. Supp. at 147
(noting that the United States has specifically reserved its
immunity with regard to claims arising out of tax assessment
and collection). Thus, sovereign immunity bars plaintiffs’
action against the IRS employees in their official capacities.
G. Bivens Action
Plaintiffs claim that the defendants, acting under color
of law, deprived them of their constitutional rights and seek
damages for the alleged deprivation. Consequently, plaintiffs’
complaint may be construed as seeking to raise a Bivens claim
against the IRS employees in their individual capacities. See
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S.
388, 392-97 (1971) (recognizing a cause of action for
damages for unconstitutional conduct committed by a federal
official acting under color of law). Defendants argue that
plaintiffs fail to state a claim under Bivens, or in the
alternative, that the federal defendants are entitled to qualified
immunity.
B-9
A number of courts have dismissed Bivens actions
brought against IRS agents for tax assessment and collection
activities. See Vennes v. Unknown Number of Unidentified
Agents, 26 F.3d 1448, 1453 (8th Cir. 1994), cert. denied, 115
S. Ct.
9
721 (1995); McMillen v. United States Dep't of Treasury,
960 F.2d 187, 190-91 (1st Cir. 1991) (noting that Congress
has provided taxpayers with the right to sue for a tax refund
under 28 U.S.C. s. 1346(a)(1) and 26 U.S.C. s. 7422, and the
ability to contest the validity of tax liens under 28 U.S.C. s.
2410); Wages v. I.R.S., 915 F.2d 1230, 1235 (9th Cir. 1990),
cert. denied, 498 U.S. 1096 (1991); see also Baddour, Inc. v.
United States, 802 F.2d 801, 808 (Sth Cir. 1986); Cameron v.
LR.S., 773 F.2d 126, 129 (7th Cir. 1985). In the present
case, plaintiffs’ claims stem from the IRS employees’ activities
in assessing taxes, filing notices of federal tax lien, levying
against the property of Omega Farris and Sherry Farris, and
selling the property. Accordingly, to the extent that plaintiffs
bring this actoin against the IRS employees for their tax
assessment and collection activities, the court declines to
create a Bivens remedy. See Schweiker v. Chilicky, 487 U.S.
412, 423 (1988) (stating that "[wJhen the design of a
Government program suggests that Congress has provided
what it considers adequate remedial mechanisms for
constitutional violations that may occur in the course of its
administration, we have not created additional Bivens
remedies."); Vennes, 26 F.3d at 1454 (noting that Congress
has provided specific and meaningful remedies for taxpayers
challenging overzealous tax assessment and collection
activities).
The court further notes that a number of courts have
declined to recognize a Bivens claim for asserted Fifth
Amendment violations. See National Commodity & Barter
Ass'n v. Gibbs, 886 F.2d 1240, 1248 (10th Cir. 1989)
(finding it inappropriate to recognize a Bivens remedy with
B-10
respect to claims that IRS
10
employees violated the Fifth Amendment and various
provisions of the Internal Revenue Code); 7onn v. United
States, 847 F. Supp. 711, 717-18 (D. Minn. 1993), affd sub
nom. Tonn v. Forsberg, 27 F.3d 1356 (8th Cir. 1994), cert.
denied, 63 U.S.L.W. 3518 (1995); Hefti v. McGrath, 784 F.
Supp. 1426, 1431 (E.D. Mo. 1992). In addition, plaintiffs’
claim under the Fourteenth Amendment is inapplicable in a
Bivens action. See Hefti, 784 F. Supp. at 1431 (stating that
the Fourteenth Amendment has no application where the
constitutional violations are alleged to have been committed
by federal officers). However, because plaintiffs claim that an
unlawful search and seizure occurred in violation of their
consitutional rights, the court will address below plaintiffs’
Fourth Amendment claim in the Bivens context. See GM
Leasing Corp. v. United States, 429 U.S. 338, 360 (1977).
H. Qualified Immunity
The federal defendants assert that they are entitled to
qualified immunity. Government officials performing
discretionary functions are entitled to immunity for civil
damages absent evidence of conduct violating clearly
established statutory or constitutional mghts of which a
reasonable person would have known. See Harlow vy.
Fitzgerald, 457 U.S. 800, 818 (1982). To establish a
qualified immunity defense, the defendants must first show
that at the time the alleged acts occurred, they were acting
within their discretionary authority. See Courson v.
McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991). Curtis
states, through affidavit, that the actions he took with regard
to Omega Farris and Sherry Farris were in his official capacity
as an IRS
1]
B-11
revenue officer and in an effort to collect taxes assessed
against and owing by Omega Farris and Sherry Farris. The
court finds that Curtis meets his burden to show that he was
acting within his discretionary authority. In addition, the
court notes that the record evidences that Russell was acting
within her discretionary authority in signing the Deed of Real
Estate which deeded the property to Roach. However, the
remaining federal defendants fail to meet this burden.
Although Curtis's affidavit refers to other revenue officers and
special agents working with him, Curtis does not identify
these IRS employees by name. The remaining federal
defendants do not present evidence that they were acting
within their discretionary authority. Instead, the defendants
argue that plaintiffs fail to show that they acted outside the
scope of their authority. Nevertheless, under the Eleventh
Circuit's test for qualified immunity, the initial burden remains
with the defendant asserting qualified immunity to show that
he was acting within his discretionary authority at the time the
alleged acts occurred. See id. However, the court notes that
the record lacks evidence of any actions taken by these
defendants. Because Curtis and Russell meet their burden,
the burden shifts to the plaintiffs to show that Curtis and
Russell violated clearly established law. See id.
In response to the motion for summary judgment,
plaintiffs assert that the defendants deprived them of their
property under color of law. Plaintiffs appear to argue that
defendants levied and seized their property without authority
and that the code provision concerning levy and distraint, 26
U.S.C. s. 6331, has no implementing regulation. However,
plaintiffs fail to show that Curtis and Russell
12
violated clearly established law. See Yalkut v. Genignani,
873 F.2d 31, 35 (2d Cir. 1989) (noting that the Internal
Revenue Code provides for collecting assessed taxes by levy
pursuant to 26 U.S.C. s. 6331 and that the authority to levy
had been delegated to defendant IRS agents through 26
B-12
C.F.R. s. 301.6331-1). Further, as noted below, the record
shows that Curtis obtained a court order prior to entering the
residence. Accordingly, Curtis and Russell are entitled to
qualified immunity.
Moreover, plaintiffs fail to show a deprivation of their
constitutional rights. At various times within plaintiffs’
complaint, plaintiffs claim that Curtis and others unlawfully
entered their property or entered their residence without a
warrant. Thus, plaintiffs claim that their rights under the
Fourth Amendment were violated. However, the record
shows that Curtis applied for and received an Order for Entry
on Premises to Effect Levy which allowed Curtis or other
designated IRS personnel to enter the premises located at
12737 Monte Vista Road and to make such search as
necessary to levy and seize. Accordingly, Curtis's and the
other unknown IRS employees’ actions in entering the
premises did not violate plaintiffs' rights under the Fourth
Amendment. See GM Leasing, 429 U.S. at 360 (holding
that IRS agents should have obtained a warrant before
forcible entry where IRS sought to levy and seize property).
Furthermore, plaintiffs do not present evidence indicating that
the search was unreasonable.
Finally, the court notes that plaintiffs have sued
Roach, an individual, claiming that he acted in conjunction
with the IRS employees to deprive them of their property. In
plaintiffs' response to the motion for summary judgment,
13
plaintiffs allege that Roach, working with the IRS, tried to
induce Omega and Sherry Farris into an illegal act. Although
the record shows that Roach purchased the property from the
IRS, plaintiffs fail to present evidence of any unconstitutional
conduct on the part of the IRS and Roach.
I. Pendent State Claims
When a district court dismisses all federal claims
B-13
before trial, it is within the court's discretion to exercise
pendent jurisdiction over remaining state law claims.
Consequently, the court declines to exercise pendent
jurisdiction over plaintiffs' state law claims. See Rice v.
Branigar Org., Inc., 922 F.2d 788, 792 (11th Cir. 1991).
II. Conclusion
The court finds that a private right of action does not
exist for plaintiffs’ claims brought under 18 U.S.C. s. 872,
876, and 1001. In addition, plaintiffs may not bring a claim
for damages pursuant to 26 U.S.C. s. 7214 until after a
criminal conviction under the section. Further, plaintiffs fail
to state a claim for relief under 42 U.S.C. s. 1983, 1985,
1986, and 1988 and with regard to plaintiffs’ claims brought
under the First and Eighth Amendments. Moreover, the court
finds plaintiffs’ claim of a violation of Article I, Section 10,
Clause 3 of the United States Constitution wholly without
merit. The court finds that sovereign immunity precludes the
action against the IRS employees in their official capacities.
To the extent that plaintiffs
14
bring a Bivens action against the IRS employees in their
individual capacities, the court declines to recognize a Bivens
action against the IRS employees for their tax assessment and
collection activities, and for claims brought under the Fifth
and Fourteenth Amendment. Although the court recognizes a
Bivens remedy for asserted Fourth Amendment violations, the
court finds that Curtis is entitled to qualified immunity and
that plaintiffs fail to show a deprivation of their constitutional
rights. Because no federal claims remain in this action, the
court declines to exercise pendent jurisdiction over plaintiffs’
state law claims. The court grants summary judgment in
favor of all defendants, (Doc. 171.), and instructs the clerk of
the court to enter judgment accordingly.
It is SO ORDERED in Orlando, Florida, this 27th day
B-14
of February 1995.
/s/ G. KENDALL SHARP
United States District Judge
Copies to all counsel of record
15
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
Filed 95 Feb 27 PM 3:37
ELLIOT ROSADO, OMEGA FARRIS,
SHERRY FARRIS, & GARY FARRIS
Plaintiffs,
V. CASE NO. 94-0059-CIV-ORL-18
JOSEPH V. CURTIS, JOHN E. STEELE,
PATRICIA E. DORMAN, ROSLYN A.
RUSSELL, JOE F. ROACH, MARGARET
A. WEISS, ORLAND D. SMITH, DALE
F. HART, JOHN DOE #4 1-10, & JANE DOE
# 1-10,
Defendants.
ORDER
Elliott Rosado, Omega Farris, Gary Farris, and Sherry
Farris (collectively referred to as plaintiffs) bring this action
pursuant to 42 U.S.C. ss. 1983, 1985, 1986, and 1988, 18
U.S.C. ss. 872, 876, and 1001, and 26 U.S.C. s. 7214 against
i
B-15
Joseph V. Curtis (Curtis), John E. Steele (Magistrate Judge
Steele), Patricia E. Dorman (Dorman), Roslyn A. Russell
(Russell), Joe F. Roach (Roach), Margaret A. Weiss
(Weiss), Orland G. Smith (Smith), Dale F. Hart (Hart)
(collectively referred to as defendants), and various John
Does and Jane Does, alleging violations of the First, Fourth,
Fifth, Eighth, and Fourteenth Amendments to the United
States Constitution. Plaintiffs also raise claims under state
law. Magistrate Judge Steele filed a motion to dismiss.
Subsequently, plaintiffs filed a motion and memorandum in
support to strike Magistrate Judge Steele's motion to dismiss,
which the court denied. Based on a review of the complaint
and the relevant law, the court dismisses this action against
Magistrate Judge Steele.
I. Facts
According to the plaintiffs’ complaint, the following
events occurred. On or about March 10, 1992, Internal
Revenue Service (IRS) Agent Curtis visited Omega Farris
demanding money and threatened to arrest Omega Farms.
Curtis continued to demand money in the amount of
$500,000.00 from Omega Farris informing Omega Farris that
he could work something out. Omega Farris refused to pay
the amount. Subsequently, Omega Farris received notice of a
number of liens, including a Notice of Federal Tax Lien fiied
May 4, 1992, a Notice of Federal Tax Lien filed May 11,
1992
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