Paul Andrew, Mitchell, B.A., M.S.
Citizen of Arizona state, federal witness,
Counselor at Law, and Relator
c/o 2509 N. Campbell Avenue, #1776
Tucson [zip code exempt]
ARIZONA STATE
Under Protest, Necessity, and
by Special Visitation
DISTRICT COURT OF THE UNITED STATES
JUDICIAL DISTRICT OF MONTANA
BILLINGS DIVISION
People of the United States ) Case No. CV-96-163-BLG
of America, ex relatione )
Paul Andrew Mitchell, ) MEMORANDUM OF LAW IN SUPPORT OF
) MOTION FOR RECONSIDERATION AND OF
Petitioners, ) CHALLENGE TO THE CONSTITUTIONALITY
) OF A FEDERAL REMOVAL STATUTE:
vs. )
) 28 U.S.C. 1447(d)
United States et al., )
)
Respondent. )
____________________________)
COME NOW the People of the United States of America (hereinafter
"Petitioners"), ex relatione Paul Andrew, Mitchell, B.A., M.S.,
Citizen of Arizona state, expressly not a citizen of the United
States, federal witness, and Counselor at Law (hereinafter
"Relator"), to present this, Their MEMORANDUM OF LAW IN SUPPORT
OF MOTION FOR RECONSIDERATION AND OF CHALLENGE TO THE
CONSTITUTIONALITY OF A FEDERAL REMOVAL STATUTE filed concurrently
with Their MOTION FOR RECONSIDERATION. Plaintiffs hereby
challenge the constitutionality of 28 U.S.C. 1447(d).
In the ORDER of Chief United States District Judge Jack D.
Shanstrom, dated and filed in the instant case on April 8, 1997,
the following plain error is manifest, to wit:
... [T]he removal statutes do not afford a
petitioner/plaintiff the power to remove a case to federal
court.
Reconsider and Challenge Removal Statutes:
Page 1 of 9
Petitioners respectfully request this honorable District
Court of the United States (hereinafter "DCUS") to compare two
important removal statutes which are available to all civil
litigants. Section 1441(b) of Title 28, United States Code,
contains a general restatement of the original jurisdiction of
the DCUS, without any requirement that the removing party(s) be
defendant(s), to wit:
(b) Any civil action of which the district courts have
original jurisdiction founded on a claim or right arising
under the Constitution, treaties or laws of the United
States shall be removable without regard to the citizenship
or residence of the parties.
The above statute makes absolutely no mention whatsoever of a
"defendant", or "defendants". In clear contrast to the above
statute, the companion statute at section 1441(a) does explicitly
restrict its availability to civil defendant(s) only, to wit:
(a) Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of which
the district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.
[emphasis added]
Petitioners rely upon the maxim of construction: inclusio
unius est exclusio alterius, in order to show that Congress
omitted any references to the "defendant" or "defendants" in
section 1441(b), because the omission was intentional;
specifically, it is the intent of Congress to allow plaintiffs to
remove civil action(s) from state courts into the DCUS,
particularly when the DCUS has original jurisdiction that is
founded on a claim or right arising under a law of the United
States. See Freedom of Information Act ("FOIA"). The FOIA is a
law of the United States. See 5 U.S.C. 552(a)(4)(B) for the
grant of original jurisdiction to the DCUS to enjoin the
withholding of documents properly requested under FOIA, and to
order the production of documents improperly withheld.
Reconsider and Challenge Removal Statutes:
Page 2 of 9
Accordingly, the USDC's ORDER of April 8, 1997, is in error
for remanding the instant case back to the Montana Sixteenth
Judicial District Court ("State Court"), because it is based on
the false premise that a petitioner/plaintiff does not have the
power to remove a case to federal court, under any removal
statutes in Chapter 89 of Title 28, United States Code. In so
doing, said ORDER would effectively deny a judicial remedy which
is Petitioners' right in the instant case, because the FOIA
creates a federal cause of action in the case of all FOIA
requests properly submitted and improperly withheld by the
agency(s) in question. Moreover, the State Court has no
jurisdiction whatsoever, either original or appellate, to enjoin
the withholding of documents properly requested under FOIA and/or
to order the production of documents improperly withheld.
CHALLENGE TO CONSTITUTIONALITY OF STATUTE
Petitioners hereby also challenge the constitutionality of
28 U.S.C. 1447(d), to wit:
(d) An order remanding a case to the State court from which
it was removed is not reviewable on appeal or otherwise,
except that an order remanding a case to the State court
from which it was removed pursuant to section 1443 of this
title shall be reviewable by appeal or otherwise.
Petitioners hereby deny any reliance whatsoever upon section
1443, thus rendering moot the second half of section 1447(d).
However, Petitioners argue that the first half of said section is
overly broad for permitting arbitrary, capricious, erroneous,
and/or injurious orders to be sustained artificially, and for
depriving litigants of remedies which are their fundamental
Right, under the due process clause of the Fifth Amendment.
Reconsider and Challenge Removal Statutes:
Page 3 of 9
The USDC's ORDER of April 8, 1997, is a classic case in
point. The instant case arose from Petitioners' desire to obtain
a temporary restraining order ("TRO") preventing the use of
lethal force against the Montana Freeman [sic], and also to
obtain a permanent injunction preventing any deprivations, by
Respondents, of the life, liberty, or property of Citizens of
Montana state without due process of law. See Fifth Amendment.
After the Montana Freemen surrendered peacefully, without
any loss of life, the application for TRO was rendered moot.
However, the permanent injunction against Respondents is still an
open question, and it has yet to be decided finally by this
honorable Court, or by the State Court from whence the instant
case originated. Petitioners submit, therefore, that the
application of due process of law is quite salient in the instant
case, as a remedy still available not only to the Citizens of
Montana state, but also to the respective litigants in the
instant case, who are not necessarily Citizens of Montana state.
It was only after the instant case was filed in State Court,
that Petitioners then decided to submit a proper FOIA request to
the United States Department of Justice ("DOJ") for the
credentials of all six hundred thirty-three (633) alleged federal
agents who rotated in and out of the Freeman Standoff. When DOJ
failed to produce the requested documents, after receipt of
proper FOIA requests and appeals, and after expiration of the
statutory deadlines for same, Petitioners had then exhausted all
administrative remedies and were then faced with an immediate
need to invoke the court of original jurisdiction over the FOIA;
that court is the DCUS. No other court fits the bill.
Reconsider and Challenge Removal Statutes:
Page 4 of 9
Accordingly, Petitioners are now faced with the very real
prospect of being forever deprived of their procedural Right to
enforce the FOIA upon DOJ. Should the USDC'S ORDER of April 8 be
permitted to stand and thereby to remove the instant case back to
the State Court, there will have been, in that event, no
litigation whatsoever on the federal questions which arise from
the original FOIA request and appeal. This result directly
contravenes the explicit legislative intent of 28 U.S.C. 1441(e):
(e) The court to which such civil action is removed is not
precluded from hearing and determining any claim in such
civil action because the State court from which such civil
action is removed did not have jurisdiction over that claim.
Petitioners submit, for the careful consideration of this
honorable Court, that section 1441(e) applies directly, and
unequivocally, to the instant case, particularly with respect to
the judicial enforcement of the FOIA. This is so, precisely
because the State Court from which the instant civil action was
removed does not have any jurisdiction over FOIA enforcement.
Therefore, this honorable DCUS is not precluded from hearing
and determining Petitioners' claim upon judicially compelled
discovery of the documents requested in the original FOIA request
and appeal, i.e. credentials, such as Appointment Affidavits
and/or Oaths of Office. See, in particular, Article VI, Clause 3
and 5 U.S.C. 3331.
When examined against this clear and unequivocal right,
which is enforceable by the FOIA, the restriction found at
section 1447(d) cannot stand on its own, nor can it be applied in
the instant case, because said section confounds, if it does not
directly contradict, the procedural Right(s) which are recognized
by section 1441(e).
Reconsider and Challenge Removal Statutes:
Page 5 of 9
Section 1447(d) is particularly offensive in that it
prohibits review on appeal or otherwise. Petitioners submit that
this additional qualifier -- "or otherwise" -- would logically
prohibit judicial review of Petitioners' MOTION FOR
RECONSIDERATION, filed concurrently with this MEMORANDUM.
Petitioners are now entirely confident that They, as Plaintiffs,
have every Right under section 1441(b) to remove the State Case
into this honorable DCUS, to enforce FOIA, if nothing else.
The USDC's ORDER of April 8, 1997, is based on the erroneous
premise that a petitioner/plaintiff does not have the power to
remove a case to federal court. If allowed to stand, upon
authority of section 1447(d), said ORDER would work a grave
injustice upon Petitioners and result in barratry upon their
efforts to compel discovery of the requisite credentials of all
633 federal agents who participated in the Freeman Standoff.
This is not a small number. Without federal review by this
honorable Court in the instant case, Petitioners would then be
faced with exorbitant legal costs to mount still more law suits
in State Court, under applicable state discovery laws.
However, the separation of powers doctrine casts serious
doubt on the ability of state courts to compel discovery of
federal employees' credentials, via Mandamus or otherwise. See
the plaintiffs' pleadings on that subject in People v. Boxer,
California Supreme Court case number S-030016, December 1992.
Reconsider and Challenge Removal Statutes:
Page 6 of 9
It is by no means settled that state courts can compel
specific performance by federal employees. So, remanding the
case back to State Court raises the very real prospect that
Relator could not afford to prosecute the same subject matter all
over again, a second time, due to additional legal costs which
would otherwise be unnecessary. Lex non cogit impossibilia.
It is also clear that section 1441(e) contemplates cases in
which the DCUS is empowered to remove and hear state cases in
which there is a federal cause of action, and to remand all other
causes of action which properly belong back in state court.
As applied to the instant case, it would be proper, for
example, for this honorable DCUS to remand certain injunctive
remedies back to the State Court, with a recommendation to stay
that proceeding, pending final judgment in the matter of
compelling discovery of the credentials which have been
requested. In that way, the outcome of the state case could then
pivot on whether, or not, the credentials existed in the first
instance and, if they did, whether or not said credentials should
be enforced in equity; if they did not exist, then the State
Court would then be the proper forum to adjudicate probable
violations of applicable state laws, e.g. trespass, extortion,
kidnap, perjury, and impersonating an officer.
But, such a pivotal determination would necessarily be
required to await FOIA enforcement in the DCUS, because that is
the court of original jurisdiction, and it would possibly also be
required to await appellate review, by the federal appeals court
(Ninth Circuit) and possibly also the Supreme Court of the United
States, of all relief granted by the DCUS.
Reconsider and Challenge Removal Statutes:
Page 7 of 9
SUMMARY
Petitioners hereby challenge 28 U.S.C. 1447(d) for being
overly broad, for conflicting with 28 U.S.C. 1441(e), and for
depriving Petitioners of an essential remedy when a federal cause
of action is clearly present by virtue of the Freedom of
Information Act, 5 U.S.C. 552 et seq.
Petitioners also conclude that the USDC's ORDER of April 8,
1997, in the instant case, is erroneous for basing a remand upon
a false premise, namely, that a civil petitioner/plaintiff does
not have the power to remove a case to federal court.
If allowed to stand, said ORDER will deny a remedy which
belongs to Petitioners, and thereby cause irreparable damage(s)
to Petitioners, for all the reasons stated above.
Dated: April 14, 1997
Respectfully submitted,
/s/ Paul Andrew Mitchell
Paul Andrew, Mitchell, B.A., M.S.
Citizen of Arizona state, federal witness,
(expressly not a citizen of the United States),
Counselor at Law, and Relator on behalf of
the People of the United States of America
All Rights Reserved without Prejudice
Reconsider and Challenge Removal Statutes:
Page 8 of 9
PROOF OF SERVICE
I, Paul Andrew, Mitchell, B.A., M.S., Citizen of Arizona state,
federal witness, and Counselor at Law, do hereby certify, under
penalty of perjury, under the laws of the United States of
America, without the "United States", that I am at least 18 years
of age, a Citizen of one of the United States of America, and
that I personally served the following document(s):
MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR RECONSIDERATION AND OF
CHALLENGE TO THE CONSTITUTIONALITY
OF A FEDERAL REMOVAL STATUTE:
28 U.S.C. 1447(d)
by placing one true and correct copy of same in first class U.S.
Mail, with postage prepaid and properly addressed to:
Attorney General William H. Rehnquist, C.J.
Department of Justice Supreme Court of the U.S.
10th and Constitution, N.W. 1 First Street, N.E.
Washington, D.C. Washington, D.C.
Solicitor General Warren Christopher
Department of Justice U.S. Secretary of State
10th and Constitution, N.W. Department of State
Washington, D.C. Washington, D.C.
James M. Burns LeRoy Michael; Schweitzer
United States District Court c/o Yellowstone County Jail
316 North 26th Street 3165 King Avenue, East
Billings, Montana state Billings, Montana state
Office of the U.S. Attorneys Judge J. Clifford Wallace
United States District Court Ninth Circuit Court of Appeals
Federal Building c/o P.O. Box 193939
Billings, Montana state San Francisco, California
Chief Judge Judge Alex Kozinski
Ninth Circuit Court of Appeals Ninth Circuit Court of Appeals
c/o P.O. Box 193939 125 South Grand Avenue, #200
San Francisco, California state Pasadena, California state
Executed on April 14, 1997:
/s/ Paul Andrew Mitchell
Paul Andrew Mitchell, B.A., M.S.
Citizen of Arizona state, federal witness,
Counselor at Law, and Relator
Reconsider and Challenge Removal Statutes:
Page 9 of 9
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People v. United States et al.