NOTICE OF BONA FIDE CONTROVERSY AT LAW

Case Nos.: MJ 14-00030 JPD

USDC/DWY: 14-CR-27-F

NOTICE OF BONA FIDE CONTROVERSY AT LAW

Incorporated by reference in #14-CR-27-F (USDC/DWY)

TO: Office of Chief Judge

U.S. District Court

700 Stewart Street

Seattle 98101

Washington State, USA

FROM: Paul Andrew Mitchell, B.A., M.S.

FDC SeaTac Reg. No. 44202-086, Unit “EA”

SUBJECT: proper distinction between

“civil officer” and “civil service”

Greetings Your Honor:

I honestly believe I have now isolated

one cause of the major misunderstandings

which have developed in the instant cases:

judges and clerks of court are properly

included within the meaning of “civil officers”,

but they are not properly included

within the meaning of “civil service”.

In what now follows, please allow this

Notice to document the controversy at law

that has arisen as a result of reconciling

those two terms, with citations to key

relevant authorities:

(1) A good starting place is the definition

of “civil officer” as found in The Law

Dictionary, Anderson Publishing Co. (2002).

“civil officer” -- any officer of the United

States who holds his appointment

under the national government,

whether his duties are executive

or judicial ... with the exception of

officers of the army and navy.

Clearly, the latter distinguishes military

officers from civilian officers, but the latter

are not equated with “civil service”.

The U.S. Constitution is helpful here

because it requires an Oath of Office of all

“executive and judicial Officers”. That

Fundamental Law necessarily implies that

“civil officers” exist in both the Executive

and Judicial Branches of the federal

government. As such, all judicial officers

are required by Article VI, Sec. 3 above to

execute a valid Oath of Office, irrespective

of any definition which excludes judicial

officers from the meaning of “civil service”.

(2) The statute at 5 U.S.C. 2104 is very

helpful where it defines “officer” to mean

a justice or judge. As such, both are

“civil officers” but not necessarily

members of the “civil service”, strictly speaking.

The controversy at hand rears its head

where that statute reads: “an individual

who is (1) required by law to be appointed

in the civil service by ... a court of the

United States ....” NB: “in the civil service”.

(2) continued

The clarification in the U.S. Code Service

is very instructive where it interprets

Section 2104 to refer to “civil officers

of the United States” and not to the

“civil service”, strictly speaking:

“The term ‘officer’ is coextensive with

and substituted for ‘Each individual

appointed hereafter as a civil officer

of the United States ... by a court

of law ...’ in view of the definition

of ‘officer’ at 5 U.S.C. 2104.” See

Notes under 5 U.S.C.S. 3332 here.

(3) Federal judges are therefore correctly

described as “officers” and as “civil

officers”, even though they are not described

as members of the “civil service” i.e. in

the Executive Branch and only in that Branch.

The controversy rears its head again, however,

when we try to describe Clerks of Court and

Deputy Clerks of Court:

Using the clarification above, a Clerk of

Court must be an “officer” because that

individual is appointed by a court of

the United States. See 28 U.S.C. 751.

Moreover, a Clerk of Court is also correctly

described as a “civil officer”, even though

that office is not in the “civil service”.

Lastly, there is authority for concluding

that Deputy Clerks of Court are also

“officers”. See Ex parte Burdell, 32 F. 681:

“He takes the same oath of office as the Clerk of Court.”

(4) A major problem at hand is to

decide if the term “officer” at 5 U.S.C. 3332

is limited to “civil officers” in the

Executive Branch, on the one hand,

or expanded with “civil officers” in the

Judicial Branch, on the other hand.

The clarification at (2) above helps

us to decide that “officer” at Section 3332

embraces both Executive and Judicial

Branch officers.

Therefore, we are justified in concluding

that the second affidavit required by

Section 3332 is an obligation that is

imposed upon justices, judges, magistrates,

clerks and deputy clerks of court. This conclusion

is justified by all of the evidence above,

notwithstanding the use of “civil service”

at 5 U.S.C. 2104(a)(1). Here, cf. OPM SF-61.

(5) The controversy at hand is further

fueled by expanding this Notice also to

examine 5 U.S.C. 3331. Some courts have

already ruled that Section 3331 applies only

to those in the “civil services” i.e. Executive

Branch, or the “uniformed services” i.e. military,

but not to judicial officers. See In re Anthony,

481 BR 602 (2012). Similarly, Miller v. Johnson,

541 F.Supp. 1165 (1982), says the same thing:

“... judges serve in the judicial branch, not

in the ‘civil or uniformed services’.” The

6^th Circuit also quoted Miller with approval

in U.S. v. Conces, 507 F.3d 1028 (2007).

(6) Another important piece of this puzzle

is the statute at 5 U.S.C. 2906, which

defines the legal custodian for the general

Oath of Office imposed by 5 U.S.C. 3331.

Specifically, that Oath is delivered to, and

preserved by, the “court to which the office pertains.”

As such, Section 2906 clearly requires

all judicial officers to deliver their 3331

Oaths to the court because their offices

pertain to the court that employs them;

their offices do not pertain to either House

of Congress, nor to any Executive Branch positions;

and, 2906 thus defines a duty for the Office of Clerk.

(7) In direct contradiction of the clear language

Congress enacted at Sec. 2906, one federal district

court has ruled otherwise. In Miller v. Johnson,

supra, the court ruled that 2906 does not

apply to judges, and Sec. 3331 only applies to

individuals who take an oath “in the civil

service or uniformed services.” The problem

here can be resolved by constructing 3331

to be maintaining the distinction between

civilian positions and military positions,

not by restricting “civil service” to Executive

Branch positions. Once again, see the clarification

at (2) above: 2104 refers to “civil officers”

not “civil service”.

(8) The Miller court also ruled that:

“The Administrative Office keeps judges’

personnel records under authority vested

in the Director by 28 U.S.C. 604.” The latter

is a curious claim, in part because of the

clear language in the reference to “court”

(8) continued

in Section 2906, and the long PAST DUE

SUBPOENA which this writer served upon

the A.O. for all Oaths of Office in the A.O.’s

custody for all justices, judges, magistrates,

clerks and deputy clerks, no exceptions.

The A.O. never produced a single Oath

in response to that SUBPOENA, in stark

contrast to the ruling in Miller, discussed

above. Moreover, there is absolutely no

mention of any oaths, or custody of any

oaths, in the A.O. Director’s duties as

defined at 28 U.S.C. 604. Compare 5 U.S.C. 2906;

it clearly designates the “court” as the legal

custodian, not the A.O. The A.O.is obviously

not a court! In practical terms, 2906

keeps oaths in the courthouses where

litigants can easily access them, not

in some distant government office building

located in the District of Columbia!

(9) This writer now feels compelled to offer

the following points, by way of settling

this Bona Fide Controversy at Law:

(a) The Fundamental Law requires an Oath

of all judicial officers;

(b) Justices, judges, magistrates, clerks

and deputy clerks are all defined as

judicial officers;

the three affidavits required by 5 U.S.C.

sections 3331, 3332 and 3333;

(d) All 3 affidavits are presently found

on a single form, known as the OPM

Standard Form 61 APPOINTMENT AFFIDAVITS;

(e) 5 U.S.C. 2906 clearly cites the court

as the legal custodian of the SF-61 for

each and every judicial officer employed

by the court;

(f) The A.O. is not a “court” and, as such,

it is not the designated legal custodian

of any oaths required of any judicial officers;

(g) The consistent practice of numerous

federal judges -- spanning many decades --

has been to execute OPM SF-61 APPOINTMENT

AFFIDAVITS; the resulting pattern has enormous weight;

(h) Clerks and Deputy Clerks of Court should

also execute SF-61 and maintain custody of same;

(i) Although judicial oaths are a

“matter of public record,” In re Anthony supra,

FOIA exempts the entire judicial branch

at 5 U.S.C. 551;

(j) Court clerks routinely refuse to honor

FOIA requests for oaths, citing 5 U.S.C. 551;

(k) Such refusals by clerks violate a

holding in Miranda v. Arizona, to wit:

“where rights secured by the Constitution

are involved, there can be no rule making

or legislation which would abrogate them”;

(l) Therefore, the FOIA exemption for the

judiciary should be amended to authorize

FOIA requests for the APPOINTMENT AFFIDAVITS

and OATHS OF OFFICE of all judicial officers;

(m) An even better solution is to publish

electronic copies of these credentials on

the Internet, in addition to maintaining

custody of the originals at the “court

to which the office pertains”; and,

(n) The Library of Congress maintains an

electronic registry of Agents for Notification

of Copyright Infringement claims. That

registry is an excellent model for

publishing judicial credentials on the

Internet. See 17 U.S.C. for copyright laws.

INCORPORATION

The Undersigned hereby incorporates the

following document by reference, as if

set forth fully here:

MEMORANDUM OF LAW RE:

CLERK OF COURT IS AN OFFICER (2/10/2014)

VERIFICATION: 28 U.S.C. 1746

I, Paul Andrew Mitchell, B.A., M.S.,

hereby verify under penalty of perjury,

under the laws of the United States of

America, without the United States

(federal government) that the above

statement of facts and laws is true

and correct, according to the best of

my current information, knowledge

and belief, so help me God.

Dated: 2/12/2014

Signed: /s/ Paul Andrew Mitchell

Printed: Paul Andrew Mitchell, Sui Juris