Charles R. Pixley, Sui Juris
Citizen of New York state
c/o general delivery
Rochester [zip code exempt]
NEW YORK STATE
In Propria Persona
Under Protest and Without Prejudice
By Special Visitation Only
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
UNITED STATES OF AMERICA [sic], ) Case Number 96-1476
)
Plaintiffs/Appellees, ) AFFIDAVIT OF DEFAULT IN RE
) DOCUMENTS REQUESTED UNDER THE
v. ) FREEDOM OF INFORMATION ACT:
)
CHARLES R. PIXLEY [sic], ) 5 USC 552(a)(1), (a)(4)(B);
) 18 USC 1513; 28 USC 1746(1);
Defendant/Appellant. ) 44 USC 1501 et seq.;
) Rule 201(d), Federal Rules
) of Evidence
________________________________)
COMES NOW Charles R. Pixley, Sui Juris, Citizen of New York
state, expressly not a citizen of the United States ("federal
citizen"), federal witness, and Defendant in the above entitled
case (hereinafter "Appellant"), to provide formal Notice to all
interested party(s), and to demand mandatory judicial by this
honorable Court, pursuant to Rule 201(d) of the Federal Rules of
Evidence, of this, Appellant's AFFIDAVIT OF DEFAULT IN RE
DOCUMENTS REQUESTED UNDER THE FREEDOM OF INFORMATION ACT.
AFFIDAVIT OF DEFAULT
I, Charles R. Pixley, Citizen of New York state, federal
witness, expressly not a federal citizen, and Appellant in the
above entitled matter, hereby testify as follows, to wit:
Affidavit of Default in re FOIA Documents:
Page 1 of 7
On June 19, 1997, Appellant submitted proper and lawful
requests under the Freedom of Information Act ("FOIA"), pursuant
to 5 U.S.C. 552 et seq. Said FOIA requests sought to obtain,
inter alia, certified copies of the formal regulations, as
published in the Federal Register pursuant to the Federal
Register Act ("FRA"), if any, which promulgate the statutes at 18
U.S.C. sections 371 and 3231, and 28 U.S.C. 1861 et seq., also
known as the Jury Selection and Service Act ("JSSA"). Appellant
submitted said FOIA requests after making an initial
determination that no such regulations have ever been published.
On June 25, 1997, in a pleading entitled MOTION TO STAY
MANDATE AND PROCEEDINGS, PENDING DISCOVERY OF DOCUMENTS REQUESTED
UNDER THE FOIA, AND FINAL RESOLUTION OF CHALLENGE TO
CONSTITUTIONALITY OF THE JURY SELECTION AND SERVICE ACT,
Appellant demanded mandatory judicial notice by this Court,
pursuant to Rule 201(d) of the Federal Rules of Evidence, of all
FOIA requests described supra.
On July 2, 1997, Appellant exercised procedural remedies,
enacted in the FOIA, by submitting proper and timely appeals for
the documents previously requested.
At no time between then and now have the agencies in
question produced certified copies of any regulations which have
been published in the Federal Register, pursuant to the FRA,
promulgating the statutes at 18 U.S.C. sections 371, 3231, and
the JSSA. Administrative remedies are, thus, not yet exhausted.
Appellant is an interested Person who has never been
provided with an opportunity to participate in the making,
revising, or repealing of rules for the statutes itemized supra.
Affidavit of Default in re FOIA Documents:
Page 2 of 7
Appellant has been denied general notice(s) of proposed rule
making, which notices are required to be published in the Federal
Register, pursuant to the Administrative Procedures Act ("APA").
Appellant has been denied general notice(s) and service of
final substantive rules at least thirty (30) days before their
effective dates, as required by the APA.
Concurrently with the instant AFFIDAVIT, Appellant has
invoked the APA against the United States Department of Justice
("DOJ") by submitting a formal petition for issuance of rules
promulgating the statutes at 18 U.S.C. 371, 3231, and the JSSA,
pursuant to 5 U.S.C. 553(e).
Appellant believes that the APA contains an explicit
provision which bars this honorable Court from issuing any
mandates or other ORDER's which could result in the loss of
Appellant's liberty and/or in the deprivation of Appellant's life
or property, in violation of the Fifth Amendment. Said provision
is 5 U.S.C. 552(a)(1), which states, in part:
... [A] person may not in any manner be required to resort
to, or be adversely affected by, a matter required to be
published in the Federal Register and not so published.
[5 U.S.C. 552(a)(1)]
Appellant also believes that the FRA itself contains
provisions for the protection of the Public at large, which
provisions bear directly on the instant case. Specifically, all
documents having general applicability and legal effect [sic]
must be published in the Federal Register. See 44 U.S.C. 1505.
For purposes of the FRA, 44 U.S.C. 1501 et seq., every document
or order which prescribes a penalty has general applicability and
legal effect [sic].
Affidavit of Default in re FOIA Documents:
Page 3 of 7
The statute at 18 U.S.C. 371 prescribes a penalty which
Appellees are attempting to impose upon Appellant.
Appellant invokes the explicit Public protection provision
of the FRA which is found at section 1507 of that Act, to wit:
A document required to be published in the Federal Register
is not valid as against a person who has not had actual
knowledge of it until the duplicate originals or certified
copies of the document have been filed with the Office of
the Federal Register and a copy made available for public
inspection.
[44 U.S.C. 1507]
The FRA also requires all documents to be published in the
Federal Register, if they are documents which are required to be
published by Congress. Appellant believes that regulations
promulgating the JSSA and 18 U.S.C. sections 371 and 3231 clearly
fall within the scope of documents which are required to be
published by Congress.
REMEDY REQUESTED
Wherefore, all premises having been duly considered,
Appellant respectfully demands mandatory judicial Notice, by this
honorable Court, of this, Appellant's AFFIDAVIT OF DEFAULT IN RE
DOCUMENTS REQUESTED UNDER THE FREEDOM OF INFORMATION ACT.
Thank you very much for your consideration.
VERIFICATION
I, Charles R. Pixley, Sui Juris, Citizen of New York state,
federal witness, and expressly not a federal citizen, 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 laws and facts is true
and correct, according to the best of My current information,
knowledge, and belief, so help Me God, per 28 U.S.C. 1746(1).
Affidavit of Default in re FOIA Documents:
Page 4 of 7
Executed on __________________________________
Respectfully submitted,
/s/ Charles R. Pixley
______________________________________________
Charles R. Pixley, Sui Juris
Citizen of New York state, federal witness
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
Affidavit of Default in re FOIA Documents:
Page 5 of 7
PROOF OF SERVICE
I, Charles R. Pixley, Sui Juris, 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):
AFFIDAVIT OF DEFAULT IN RE DOCUMENTS REQUESTED
UNDER THE FREEDOM OF INFORMATION ACT:
5 U.S.C. 552(a)(1), (a)(4)(B); 18 U.S.C. 1513;
28 U.S.C. 1746(1); 44 U.S.C. 1501 et seq.
Rule 201(d), Federal Rules of Evidence
by placing one true and correct copy of said document(s) in first
class U.S. Mail, with postage prepaid and properly addressed to:
Attorney General Michael A. Telesca
Department of Justice United States District Court
10th & Constitution, N.W. 100 States Street
Washington [zip code exempt] Rochester [zip code exempt]
DISTRICT OF COLUMBIA NEW YORK STATE
Solicitor General
Department of Justice
10th & Constitution, N.W.
Washington [zip code exempt]
DISTRICT OF COLUMBIA
Christopher Taffe
United States Attorneys
620 Federal Building
Rochester [zip code exempt]
NEW YORK STATE
[See USPS Publication #221 for addressing instructions.]
Dated: ______________________________________
/s/ Charles R. Pixley
______________________________________________
Charles R. Pixley, Sui Juris
Citizen of New York state, federal witness
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
Affidavit of Default in re FOIA Documents:
Page 6 of 7
Exhibit "A":
COPIES OF OFFICIAL RESPONSES TO
APPELLANT'S FOIA REQUESTS AND APPEALS
to
Office of Attorney General
U.S. Department of Justice
Washington, D.C.
from
Charles R. Pixley, Sui Juris
Citizen of New York state, federal witness
Rochester, New York state
(incorporated by reference)
Affidavit of Default in re FOIA Documents:
Page 7 of 7
# # #
Return to Table of Contents for
U.S.A. v. Pixley