Time: Fri Nov 08 10:12:41 1996
To: richard@caprica.com
From: Paul Andrew Mitchell [address in tool bar]
Subject: Wray Brief
Cc: Neil Nordbrock, Dean Hines
Bcc:
attaching WRAY.DOC
the updated Wray brief
in MS-WORD for DOS Version 5.0B.
.ZIP file has all other formats
I have written to date.
/s/ Paul Mitchell
Charles Wray
c/o P.O. Box 1527
Ojai, California state
Post Office # 92034
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
Charles Wray, ) Case No. CV-96-3819-DT(VAPax)
Plaintiff )
) PLAINTIFF'S NOTICE OF MOTION AND
v. ) MOTION TO REMAND BACK TO THE
KEITH ODELL, ) CALIFORNIA SMALL CLAIMS COURT;
Defendant ) MEMORANDUM OF POINTS AND
) AUTHORITIES
)
) Hearing Date: August 26, 1996
)
_________________________) __________ a.m, Courtroom No. 880
PLEASE TAKE NOTICE, that on August 26, 1996, at ______ a.m.,
or as soon thereafter as the matter may be heard, in the
courtroom of United States District Judge Dickran Tevrizian, Jr.,
courtroom 880, United States Courthouse, Roybal Federal Building,
255 E. Temple Street, Los Angeles, California, Charles Wray,
Plaintiff, a Citizen of California state, will and does move:
1. That this honorable Court remand the above entitled
action back to the California Small Claims Court, on the grounds
that Defendant Keith Odell (hereinafter "Defendant"), as an
employee of the "Internal Revenue Service" [sic] (hereinafter
"IRS"), has alleged, but not shown, that he is a duly constituted
Motion to Remand Back to State Court: Page 1 of 8
federal employee who is entitled to the protection of sovereign
immunity, and has failed to prove standing to remove this matter
from the California Small Claims Court to the United States
District Court.
2. In order to obtain removal of this action to the United
States District Court, Defendant violated state law (California
Code of Civil Procedure ("CCP"), Section 116.540(i)). Motion for
removal may only be made by a named Defendant.
The grounds for this motion are set forth more fully in the
accompanying Memorandum of Points and Authorities, which is
incorporated by reference as if set forth fully herein.
Respectfully submitted,
/s/ Charles Wray
Citizen of California state
Motion to Remand Back to State Court: Page 2 of 8
MEMORANDUM OF POINTS AND AUTHORITIES
I. DEFENDANT HAS NOT SHOWN ESSENTIAL FACTS THAT SUPPORT
CLAIM OF BEING A DULY CONSTITUTED FEDERAL EMPLOYEE
ENTITLED TO DEFENSES ASSERTED.
Defendant claims to be an employee of "an agency of the
United States acting under authority of an Act of Congress", (see
Defendant's Notice of Removal of Civil Action, page 2, lines 25
and 26). In order to support Defendant's assertion that, as an
employee of a federal agency, he is entitled to immunity from
suit, and to transfer of this case to the United States District
Court, he must first show which Act of Congress created his
employer as a federal agency.
Claiming that his employer's status is that of a federal
agency is insufficient. As a matter of common practice, those
who oppose Defendant's employer do not question or otherwise
challenge the status of the IRS as a federal agency. However,
Plaintiff hereby challenges Defendant's claim and places the
question squarely before this honorable Court.
In 1972, the Internal Revenue Manual 1100 (IRM 1100) was
published in both the Federal Register and Cumulative Bulletin
(see 37 Fed. Reg. 20960; 1972-2 Cum. Bul. 836). The very first
page of the Bulletin's "Statement of Organization and Functions"
includes the following admission concerning the lawful creation
of the IRS:
(3) By common parlance [sic] and understanding of the time,
an office of the importance of the Office of Commissioner of
Internal Revenue was a bureau. The Secretary of the
Treasury, in his report at the close of the calendar year
1862 stated that "The Bureau of Internal Revenue has been
organized under the Action of the last session ...." Also
it can been seen that Congress intended to establish a
Bureau of Internal Revenue, or thought they had, from the
act of March 3, 1863, in which provision was made for the
President to appoint with Senate confirmation a Deputy
Commissioner of Internal Revenue "who shall be charged with
Motion to Remand Back to State Court: Page 3 of 8
the duties in the bureau of internal revenue as may be
prescribed by the Secretary of the Treasury, or as may be
require by law, and who shall act as Commissioner of
Internal Revenue in the absence of that officer, and
exercise the privilege of franking all letters and documents
pertaining to the office of internal revenue." In other
words, "the office of Internal Revenue," was the "Bureau of
Internal Revenue," and the act of July 1, 1862, is the
organic act of today's Internal Revenue Service.
[emphasis added]
This statement clearly admits the absence of any specific
statute or other legislation creating the Bureau of Internal
Revenue and its present day alter ego -- the IRS -- as a federal
agency. The Act of 1862 cited supra only created the Office of
the Commissioner, not the Bureau of Internal Revenue, or the IRS.
Furthermore, the Act of 1862 was repealed and not re-enacted
by the Revised statutes of 1873. If there was a specific Act
creating the Bureau, the publication would have so stated, rather
than to rely upon the claim that Congress "thought they had
created the Bureau".
See United States v. Germaine, 99 U.S. 508 (1879); Norton
v. Shelby County, 118 U.S. 425, 441 6 S.Ct. 1121 (1886) ("there
can be no officer, either de jure or de facto, if there be no
office to fill"); United States v. Mouat, 124 U.S. 303, 8 S.Ct.
505 (1888); United States v. Smith, 124 U.S. 525, 8 S.Ct. 595,
607, 21 S.Ct. 891 (1901) ("The law creates the office, prescribes
its duties"); Cochnower v. United States, 248 U.S. 405, 407, 39
S.Ct. 137 (1919) ("Primarily we may say that the creation of
offices and the assignment of their compensation is a legislative
function .... And we think the delegation must have clear
expression or implication"); Burnap v. United States, 252 U.S.
512, 516, 40 S.Ct. 374, 376 (1920); Metcalf & Eddy v. Mitchel,
269 U.S. 513, 46 S.Ct. 172, 173 (1926); N.L.R.B. v. Coca-Cola
Motion to Remand Back to State Court: Page 4 of 8
Bottling Co. Of Louisville, 350 U.S. 264, 269, 76 S.Ct. 383
(1956) ("'Officers' normally means those who hold defined
offices. It does not mean the boys in the back room or other
agencies of invisible government, whether in politics or in the
trade-union movement."); Crowley v. Southern Ry. Co, 139 F.851,
853 (5th Cir. 1905); Adams v. Murphy, 165 F. 304 (8th Cir.
1908); Scully v. United States, 193 F. 185, 187 (D.New. 1910)
("There can be no offices of the United States, strictly
speaking, except those which are created by the Constitution
itself, or by an act of Congress"); Commissioner v. Harlan, 80
F.2d. 660, 662 (9th Cir. 1935); Varden v. Ridings, 20 F.Supp.
495 (E.D. Ky. 1937); Annoni v. Blas Nadal's Heirs, 94 E.2d 513,
515 (1st Cir. 1938); and Pope v. Commissioner, 138 F.2d 1006,
1009 (6th Cir. 1943).
Furthermore, Defendant may not claim standing without
alleging facts to show the standing to be true:
Standing cannot be inferred argumentatively from averments
in the pleadings, but rather must affirmatively appear in
the record; it is the burden of the party who seeks the
exercise of jurisdiction in his favor clearly to allege
facts demonstrating that he is a proper party to invoke
judicial resolution of the dispute; the parties must allege
facts essential to show jurisdiction, and if they fail to
make the necessary allegations, they have not standing.
FW/PBS, Inc. v. Dallas, 493 U.S. 215, 110 S.Ct. 596, 107
L.Ed.2d. 603.
Unlike most state courts of general jurisdiction, in which
jurisdiction is generally presumed unless contrary is
demonstrated, in federal district courts absence of
jurisdiction is generally presumed unless party invoking
federal jurisdiction clearly demonstrates that it exists.
State of La. v. Sprint Communications Co., 892 F.Supp. 145.
In this matter, Defendant has cited no Act of Congress which
shows that his employer is a duly constituted federal agency
entitling him to claims of sovereign immunity. As a result,
Motion to Remand Back to State Court: Page 5 of 8
Defendant has not shown the necessary elements to entitle him to
immunity from suit, which immunity is afforded to federal
employees, or to a transfer to the United States District Court.
This Court must remove this action back to the California
Small Claims Court, inasmuch as Defendant has done nothing more
than to claim he is a federal employee of a duly authorized
federal agency. He has provided no specific legislation,
statute, or Act of Congress creating the IRS as a federal agency.
Indeed, no such legislation exists to cite in the first instance.
II. DISTRICT COURT MAY NOT ALLOW CIRCUMVENTION OF STATE LAW
AND THEREBY ACQUIRE JURISDICTION.
California Civil Code ("CCC"), Section 116.540, states:
Nothing in this section shall be construed to authorize an
attorney to participate in a small claims action except as
expressly provided in Section 116.530.
Section 116.530 makes no provision permitting participation
of Defendant's attorney in this matter to file motions of any
kind. Furthermore, Plaintiff was not afforded any opportunities
to oppose Defendant's motion for removal.
The United States District Court may not permit the
violation of state law, in order to acquire jurisdiction.
REMEDY REQUESTED
For the above stated reasons, this Court should remand the
matter back to the California Small Claims Court.
Respectfully submitted,
/s/ Charles Wray
Citizen of California state
Motion to Remand Back to State Court: Page 6 of 8
C E R T I F I C A T E O F S E R V I C E
I, _____________, under penalties of perjury, declare that I
am a Citizen of California state, domiciled in California state,
and a Citizen of the several States united by and under the
Constitution for the United States of America, Article IV,
Section 2, Clause 1, and I am not a citizen of the United States
(District of Columbia) and a subject of Congress under the 14th
Amendment (federal citizen), or a resident under the 14th
Amendment in the federal State of California.
It is hereby certified that service of this Notice of Motion
and Motion for Remand Back to the California Small Claims Court
have been made on the Defendant(s) and all interested parties by
personal service, or by mailing one copy each thereof, on this
_______ day of August, 1996, in a sealed envelope with postage
prepaid and properly addressed to them as follows:
Gregory A. Roth
Assistant United States Attorney
300 North Los Angeles Street, Room 2315
Los Angeles, California
Postal Zone <90012>
Janet Reno
Attorney General
Department of Justice
10th and Constitution, N.W.
Washington D.C.
"Internal Revenue Service"
Keith Odell
[address omitted]
Oxnard, California
Respectfully submitted,
/s/ Charles Wray
Citizen of California state
Motion to Remand Back to State Court: Page 7 of 8
The Defendant's claim that the Anti-Injunction Act applies
in this case is also without merit absent a showing by the
Defendant that Plaintiff has a liability for unpaid taxes under
the Public Salary Tax Act of 1939 as presently revised.
Defendant relies on Wages v. IRS. That case is distinguished
from this action in that the Plaintiff in Wages conceded the fact
as to obligation under the Act for taxes. Furthermore the
Plaintiff was an artificial entity that does not possess the same
rights and constitutional protections afforded a Citizen of a
state.
Motion to Remand Back to State Court: Page 8 of 8
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