Petition for Writ of Certiorari — Rosado v. Curtis

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Ul) FILED

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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

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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

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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

ee

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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.

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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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