Simon

No. ______________

4 Whinston Street Coram New York 11727 631-327-0813

______________ IN THE SUPREME COURT OF THE UNITED STATES ________________

QUESTIONS PRESENTED 1. Whether the act of filing an notice of appeal

ROBERT SIMON PRO SE PETITIONER Vs. First Continental Et al., RESPONDENT(S) ON PETITION FOR A WRIT OF MANDAMUS AND WRIT OF PROHIBITION TO

has

jurisdictional

implication,

if

so,

whether

legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. Docket 06-5304-cv(L) and 06-

UNITED STATES COURT OF APPEALS FOR SECOND CIRCUIT OF NEW YORK, 500 Pearl Street New York, New York 10007

5321-cv (com), and 07-3716. Griggs v. Provident

PETITION FOR A WRIT OF MANDAMUS AND WRIT OF PROHIBITION

Arrese v. American Academy of Ortho. Surgeons, 470

ROBERT SIMON

Consumer Discount Co., 459 U.S. 56, 58 (1982);

US 373, 379 (1985); Moses H. Cone Memorial Hosp.

v. Mercury Constr. Corp., 460 U.S. 1, 9-10 (1983);

district court as contemplated by 28 U.S.C.§1291 and

Missouri, K.& T. R. Co. v. May, 194 U.S. 267, 270;

Coopers & Lybrand v. Livesay, 437 U.S. 463, 467

Flast v. Cohen, 392 U.S. 83, 131; Byars v. U.S., 273

(1978) and William AUSTIN et al.,

U.S.28; Glidden Co. v. Zdanok, 370 U.S. 530, 552-58.

ALTMAN et al., 332 F.2d 273,

2. Whether the pronouncement of the United

v. Irving B.

at 274; Appeals

Before Final Judgment, 15 LITIG., Spring 1989, at

States District Judge orders on both cases 06-5304-cv

18, 19).

and 06-5321-cv, amounts to a final judgment under 28

4. Whether the Court of Appeal has ignore the

U.S.C. §1291 and United States v. F. & M. Schaefer

Supreme Court precedent authority herein, violated

Brewing Co., 356 U.S. 227, 232 (1958) and FirsTier

Article III of the United States Constitution and

Mortgage Co. v. Investors Mortgage Ins. Co., 498

committed extrinsic fraud and fraud upon the United

U.S. 269, 276 (1991); Appeals Before Final

States Constitution, abused its discretion and Usurp its

Judgment, 15 LITIG., Spring 1989, at 18, 19).

authority. See, United States v. F. & M. Schaefer

3. Whether on both cases 06-5304-cv and 06-

Brewing Co., 356 U.S. 227, 232 (1958) and FirsTier

5321-cv, the final orders has been issued by the

Mortgage Co. v. Investors Mortgage Ins. Co., 498

2

U.S. 269, 276 (1991); Cohens v. Virginia, 6 Wheat.

6. Whether plaintiff motion on both cases Docket

(19 U.S.) 264, 404 (1821); Osborn v. Bank of the

06-5304-cv(L) and Docket 06 5321-cv (com), for

United States, 9 Wheat (22 U.S.) 738, 866, 6 L.Ed 204

Assignment of Counsel/Attorney was not moot, if so,

(1824); Gibbons v. Oghen, 22 U.S. (9 Wheat.) 1, 199

whether the Court of Appeal abused its discretion in

(1824); Barrow v. Hunton, 99 U.S. (9 Otto) 80 (1878)

denying Assignment of Counsel/Attorney. Cooper v.

and Gaines v. Fuentes, 92 U.S. (2 Otto) 10.

A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989)

5. Whether plaintiff was deprived of the

(citing Jenkins v. Chemical Bank, 721 F.2d 876, 879

opportunity to present his appeal to the court; kept

(2d Cir. 1983)) and Bragger v. Trinity Capital Enter.

him ignorant of the facts, fraudulently prevented

Corp., 30 F.3d 14, 1994 U.S. App. LEXIS 17483, Fed.

plaintiff from fully participating in the

Sec. L. Rep. (CCH) P98322 (2d Cir. N.Y. 1994).

proceeding of appeal; preventing plaintiff from his

7. Whether the order granting defendant State of

day in court, in violation of the authority. Barrow v.

New York Attorney General motion dismiss plaintiff

Hunton, 99 U.S. (9 Otto) 80 (1878) and Gaines v.

Notice of Appeal on both cases Docket 06-5304-cv(L)

Fuentes, 92 U.S. (2 Otto) 10.

were obtained by ignore the Supreme Court precedent

3

authority and by extrinsic fraud. 28 U.S.C. §1291 and

prohibition

on

case

07-3716.

Syngenta

Crop

United States v. F. & M. Schaefer Brewing Co., 356

Protection, Inc. v. Henson, 537 U.S. 28 (2002);

U.S. 227, 232 (1958); FirsTier Mortgage Co. v.

Pennsylvania Bureau, 474 U.S. at 42; McCleskey v.

Investors Mortgage Ins. Co., 498 U.S. 269, 276

Zant, 499 U.S. 467 (1991).

(1991); Rodriguez de Quijas v. Shearson/American

9. Whether this Court has jurisdiction to issue a

Express, Inc., 490 U.S. 477, 109 S.Ct.1917, 104

writ of prohibition and writ mandamus, directed to

L.Ed.2d 526 (1989); Barrow v. Hunton, 99 U.S. (9

the Court of Appeal on the basis that it has abused its

Otto) 80 (1878) and Gaines v. Fuentes, 92 U.S. (2

discretion in declining to allow an appeal from a final

Otto).

Order of the District Court. United States v. F. & M.

8. Whether this Court should exercise its

Schaefer Brewing Co., 356 U.S. 227, 232 (1958);

jurisdiction to prevent enforcement of the order on

FirsTier Mortgage Co. v. Investors Mortgage Ins.

both cases Docket 06-5304-cv(L) and Docket 06-

Co., 498 U.S. 269, 276 (1991).

5321-cv (com),

and to compel its vacation by

10. Whether this court has subject matter

issuance of a writ of mandamus, and writ of

jurisdiction and jurisdiction over the Court of Appeal

4

and the District court, to issue a writ of prohibition

490 U.S. at 309 and Dicta and Article III, 142 U. PA.

and writ mandamus, to the District courts! for ignore

L. REV. 1997, 2035 (1994).

the Supreme Court precedent authority. City of

LIST OF

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439;

PARTIES

Carey v. Piphus, 435 U.S. 247, 259 (1978); Mathews

Plaintiff: Pro se Robert Simon

v. Eldrigdge, 424 U.S. 319, 344 (1976); Marshall v.

Defendant: First Continental Mortgage Investment

Jerrico, 446 U.S. 238, 242 (1980); Mullane v. Central

Corporation,

Hanover Trust Co., 339 U.S. 306, 314 (1950).

Defendant: AT Mortgage Inc. DBA First Capitol

11. Whether the court of appeals order is suitable

home,

for review via appellant mandamus to this court if so,

Defendant: SN Servicing Corporation,

was the court order correct granting defendant State of

Defendant: Pro se Denise Dalton ,

N.Y. Attorney General motion dismiss plaintiff Notice

Defendant: The Property know as 156-10 134th

of Appeal, and the court of appeals sua sponte dismiss

Avenue, Jamaica N.Y. 11434, lots

appeal. Cheney, 124 S. Ct. at 2587 (2004); Mallard,

4, block 12295,

5

Defendant:

United

State

Federal

Municipal

JURISDICTION…………………………………

Corporation, Defendant:

………………………… Federal

Deposit

Insurance

CONSTITUTIONAL

corporation,

AND

STATUTORY

PROVISIONS INVOLVED. ......

Defendant: The City of New York,

STATEMENT

Defendant: Federal Reserve Bank,

OF

THE

CASE

………………………………………..…

Defendant: Neighborhood Housing services,

REASON

Defendant: The State of New York Municipal

FOR

GRANTING

THE

WRIT.

…………………………….…

Corporation

CONCLUSION. TABLE OF

………………………………………………………..

CONTENTS

…

OPINIONS

INDEX TO

BELOW……………………………………………………

APPENDICES

………………, 21

6

1. Copies of the District Court’s final Orders and of

grants a FINAL extension. Applicants will now have a

the Court of Appeals’ orders are set forth in the Appendix

total of 120 days to oppose the motion to dismiss. If

to this petition, together with a copy of other Appendix’s.

applicants do not file opposition papers by DEC. 15,

2. There are also included in the Appendix the

2006 , the Court shall deem such motions as

following papers which are essential to an understanding

unopposed. If objections to the Magistrate’s orders are

of the instant petition:

not filed by Dec. 15, 2006, any objections are deemed

Appendix A. Order denying the appeal on case

waived. This is the last and final extension the

#cv-06-5304 and cv-06-5321 motion of assignment of

applicants will be granted.”

counsel Moot .

Appendix C. Order denied assignment of counsel and

Appendix B.“The application of Denise Dalton

motion to reconsider en banc.

and Robert Simon for a temporary restraining order

Appendix D. Referral Order of U.S. District judge Joanna

are DENIED. The court previously granted both

Seybert. 06-cv-3206(JS).

applicants a 90 –day extension to oppose the motions to

Appendix E. Notice of appeal and Amended notice of

dismiss. In light of applicants’ pro se status, the Court

appeal.

7

Appendix F. Motion to dismiss appeal and By: New York

May 30, 2006 docket # cv-05-4882(js)(etb) from E.

State attorney General with exhibits.

Thomas Boyle.

Appendix G. Opposing the motion to dismiss.

Appendix K.

Appendix H.

Reply Memorandum of law in support of

complaint without Scienter and set aside fraudulent

dependant- appellee state of New York motion to dismiss

conveyance and for fraud upon the constitution for the

the appeal by Andrew M. Cuomco with exhibits.

united states of America and federal and state legislature

Appendix I. Motion recall mandate or stay mandate and

statues, acts, violation of corporation charter and its by

vacate order or in alternative petition en banc. And

law and conspired to evade and overthrow lawful

Declaration in support.

authority.

Amended First and Ninth amendment

Appendix J. Objection to magistrate Judge Boyle orders

TABLE OF

dated May 30, 2006 and October 25, 2006 with certificate

AUTHORITIES CITED

of service, and with exhibits. Order dated October 25,

CASES

2006 from E. Thomas Boyle United States. Order dated

PAGE N

8

United States v Ravara, 2 US (2 Dall) 297, 298 (Cir Pa

Osborne v. Bank of the United States, 22 U.S. (9 Wheat)

1793);……………………….……., 23-24

738, 798 (1824);…….., 2, 22, 24,26, 46

Chisholm v Georgia, 2 US (2 Dall) 419, 436 (1793);

Gully v.First Nat'l Bank, 299 U.S. 109, 112-13 (1936);

…………………………..………….., 22-24

……………………………….……..22-24

Bors

v

Preston,

111

US

252,

256--61

(1884);

Cohen v. Virginia,

6 Wheaton (19 U.S.) 264 (1821);

………………………………………………., 22-24

………………………………2, 22, 24, 36

Ames v Kansas ex rel. Johnston, 111 US 449, 463- 71

Wiscort

(1884);……………………………. , 22-24

…………………………………………………………...,2

Northern Pipeline Construction Co. v Marathon Pipe Line

2, 24

Co.,

States

458

US

50,

69-70

n

23

(1982);

v.

v.

Dauchy,

More,

3

3

Dallas,

Cranch,

321;

159;

……………………………………………………………

……………………………………………………………

…………………………..,22, 24

…, 22, 24

Marbury v. Madison, 5 U.S. (1 Cranch) at 172, 177-80;

Durousseau v. The United States, 6 Cranch, 307,

………………….,22, 24, 26, 28, 57, 60

………………………………………...…,22, 24

9

United States v. F. & M. Schaefer Brewing Co., 356 U.S.

Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894 (1978);

227,

……………………………………….. 26

232

(1958),

……………………………………………………………

Scheuer v. Rhodes, 416 U.S. 232, 239, 94 S.Ct. 1683,

…………2, 3, 24, 28, 29, 31, 32, 35, 36

1687-88 (1974);……………………….. 26

Camilo-Robles v. Hoyos, 151 F.3d 1, 8 (1st Cir. 1998),

United States v. Lee, 106 U.S. 196, 220, 1 S .Ct. 249, 26 1

……………………………………….., 25

(1862); ………………………., 26, 35

Catlin v. United States, 324 U.S. 229, 233 (1945),

Littleton v. Berbling, 468 F.2d 389, 412 (7th Cir. 1972),

…………………………………………., 25, 39

………….……………………………..26

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 710

U.S. v. Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991),

(1996),……………………………………25

……………………………………….....26

Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863,

McClellan v. Carland, 217 U.S. 268, 280 (1910);

866 (1994), ……………………….,25

……………………………………………….26

FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498

Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25 (1943;

U.S. 269, 276 (1991),.2, 3, 25, 27, 28, 29, 33,35, 44, 56

………………………..15, 16, 26, 58, 61

10

In

re

Simons,

247

U.S.

231

(1918);

Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978);

…………………………………………………………..

…………2, 26, 28, 37, 38, 40, 42, 45

…, 26

Baker v. Wade, 769 F.2d 289, 298 (5th Cir. 1985);

In re Skinner & Eddy Corp., 265 U.S. 86 (1924);

………………………………………….…, 28

…………… ………………………………..., 26

Martin v. Hunter's Lessee, 14 U.S. (1 Wheat) 304, 4 L.Ed.

Soper

v.

Maryland,

270

U.S.

9

(1926);

97 (1816);………………………....,28

…………………………………………………………...2

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 460-62, 151

6

L.

Angeles Brush Mfg. Corp. v. James, 272 U.S. 701 (1927);

……………………………………………………………

…………………………………..…26

……………………………, 29

Colorado

v.

Symes,

286

U.S.

510

(1932);

Ed.

2d

908,

122

S.

Ct.

941

(2002);

United States v. Kras, 409 U.S. 434, 34 L. Ed. 2d 626, 93

……………………….…………………………….., 26

S. Ct. 631 (1973);…………………., 29

Ex parte Republic of Peru, 318 U.S. 578 (1943);

Interstate Commerce Commission v. United States ex rel.

………………………………………………., 26

Campbell,

11

289

U.S.

385,

394

(1933);

……………………………………………………………

La Buy

……………………………..………..,30

………………………………………….., 31

Rodriguez de Quijas v. Shearson/American Express, Inc.,

Schlagenhauf

490 U.S. 477, 109 S.Ct.1917, 104 L.Ed.2d 526 (1989);

…………………………………………,30, 61

……………………………………………………………

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336

……………...,3, 30

(1976);…………………………......,31

Williams v. Whitley, 438 U.S. 265, 98 S.Ct. 2733, 57

United States v. Ragen, 86 F. Supp. 382 (1949);

L.Ed.2d 750 (1978);………………….…, 30

……………………………………………...…,31

Cheney v. United States District Court, 124 S. Ct. 2576,

490

U.S.

v. Holder, 379 U.S. 104 (1964);

Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209 (1974);

2587 (2004);……………………..,4, 31 Mallard,

v. Howes Leather Co., 352 U.S. 249 (1957);

…………………………………...…,31 at

309;

Mapp

v.

Ohio,

367

U.S.

643,659

(1961);

……………………………………………………………

……………………………………………………,31, 42

………., 4, 31

Olmstead v. United States, 277 U.S. 438, 485 (1928); ……………………………………….,31,62

12

Gibbons

v.

Ogden,

9

Wheat.

1,

199;

Plessy

v.

Ferguson,

163

U.S.

537

(1896);

………………………………………………………….,2,

…………………………………………………..……,32

32

Patterson v. McLean Credit Union, 491 U.S. 164, 175 n.1

Weisbart v. United States, 222 F.3d 93 (2d Cir. 2000);

(1989);……………………………,32

………………………………………….,32

Runyon

Anastasoff

v. United States, 223 F.3d at 899-900;

v.

McCrary,

427

U.S.

160

(1976);

…………………………………………………..…..,32

…………………………………...……..,32, 33

James B. Beam Distilling Co. v. Georgia, 510 U.S. 529,

National League of Cities v. Usery. 426 U.S. 833

544, 111 S.Ct. 2439;…………,33, 34, 35

(1976);…………………………………...,32

Desist v. United States, 394 U.S. 244, 258-59 (1969);

Garcia

v.

San

Antonio

Metropolitan

…………………………………………..,34

Transit

Jones v. Anderson (1808) 4 Yeates 569, 575 (Pa. 1808);

Authority,469 U.S. 528 (1985);……………..,32

………………………………………..,34

Brown v. Board of Ed., 347 U.S. 483, 494–95 (1954);

Commonwealth v. Coxe, 4 Dall. 170, 192 (Pa. 1800);

………………………………………….,32

…………………………………………..,34

13

Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992);

……………………………………………………………

……………………………………..,35

………,36

Jacobson

v.

Massachusetts,

197

U.S.

25;

Village of Westfield v. Welch's, 170 F.3d 116, 124 (2nd

……………………………………………………….,35

Cir. 1999);……………………….…..,36

Connolly v. Union Sewer Pipe Co., 184 U.S. 556;

Barrow v. Hunton, 99 U.S. (9 Otto) 80 (1878);

…………………………………………,35, 52

………………………………………, 2, 3, 36, 61

Fidelity Savings & Loan Ass'n. v. de la Cuesta, 458 U.S.

Gaines

141, 153, 73 L. Ed. 2d 664, 102 S. Ct. 3014 (1982);

………………………………………………., 2, 3, 36, 61

……………………………………………………………

Burnet

……………………, 35

……………………………………………………..,36 , 61

Colorado River Water Conservation District v. United

Adamson

States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47

……………………………………………………...…,36,

L.Ed.2d

61

483

(1976);

14

v.

Fuentes,

v.

Brooks,

v.

92

288

California,

U.S.

(2

U.S.

332

Otto)

378,

U.S.

10;

406;

46;

Alexander v. United States, 201 U.S. 117, 121 (1906);

Byars

……………………………………….…,36

……………………………………………………………

Griggs v. Provident Consumer., 459 U.S. 56, 58,(1982);

…., 2, 37, 41

……………………………………..,2, 37

Glidden Co. v. Zdanok, 370 U.S. 530, 552-58;

Marrese v. American Academy of Ortho. Surgeons, 470

…………………………………………, 2, 37, 41

US 373, 379 (1985);……………...….,37

UNITED STATES PAROLE COMMISSION ET AL. v.

Moses H. Cone Memorial Hosp. V. Mercury Constr.

GERAGHTY,

Corp., 460 U.S. 1, 9-10 (1983);…..…..,2, 37

399;......................................................................................

Missouri, K.& T. R. Co. v. May, 194 U.S. 267, 270;

....................................................,37, 51 Poe v. Ullman,

……………………………………., 2, 37, 40

367

Flast

v.

Cohen,

392

U.S.

83,

………………………………………………………,

131;

v.

U.S.

U.S.,

445

273

U.S.

497,

U.S.28;

388,

508

at

(1961);

…………………………………………………...…., 37

2,

CHASE MANHATTAN MORTGAGE CORP., v.

37, 40

JAMES E. MOORE, No. 05-2941, May 4, 2006;

15

……………………………………………………………

Crouch v. National Association for Stock Car Auto

………………………………, 38

Racing, 845 F.2d 397 (2d Cir. 1980);.…., 39

Munson Transportation, Inc. v. Hajjar, 148 F.3d 711, 714

Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13

(7th Cir. 1998); ……………………,38

(1994);………………………………,39

Moreau v. Harris County, 158 F.3d 241, 244 (5th Cir.

United States v. Mead Corp., 533 U.S. 218, 248-49;

1998), , (1978);……………………….,38

…………………………………….……, 39

Ex

parte Bollman, 8 U.S. (Cranch)

75 (1807);

STATE OF CALIFORNIA, on behalf of the California

………………………………………………….,38

Department of Toxic Substances Control, v. WESTERN

Cobbledick v. United States 309 U.S. 323 (1940);

RESOURCES,

……………………………………………., 38

…………………………………………..…,39

Mclish

v.

Roff,

141

U.S.

66,

665,

(1891);

INC.,;138

F.3d

772;

Swint v. Chambers County Comm'n, 514 U.S. 35, 42, 131

………………………………………………………, 38

L.

St. Louis Iron Mountain and S. Ry. Co. . Southern Express

……………………………………………………………

Co., 108 U.S. 24, 28-29 (1883);…..,38

………………………………,39 JOHN W. BEHRENS,

16

Ed.

2d

60,

115

S.

Ct.

1203

(1995);

v. ROBERT J. PELLETIER, 516 U.S. 299; 116 S. Ct

TERESA

834;

COUNTY, OHIO, 527 U.S. 198; 119 S. Ct. 1915; 144 L.

133

L.

Ed.

2d

773;

L.

CUNNINGHAM,

v.

HAMILTON

……………………………………………………………

Ed.

………………….…………, 39

……………………………………………………………

Johnson v. Jones, 515 U.S. 304, 311, 132 L. Ed. 2d 238,

…………...……., 40

115 S. Ct. 2151 (1995);………., 40, 41

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541

Midland Asphalt Corp. v. United States, 489 U.S. 794,

(1949);……………………., 39, 41, 45

799, 103 L. Ed. 2d 879, 109 S. Ct. 1494 (1989);

Excimer,

……………………………………………………………

……………………………………………………………

…………………………….., 40

….………, 41

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485

Sierra Rutile Ltd. v. Katz, 937 F.2d 743, 748 (2d Cir.

U.S. 271, 276, 99 L. Ed. 2d 296, 108 S. Ct. 1133 (1988);

1991);………………………..…………, 41

……………………………………………………………

Puerto Rico Aqueduct and Sewer Authority v. Metcalf &

……………, 40, 60, 61

Eddy,

17

2d

292

Inc.,

506

184;

F.3d

U.S.

at

139,

144

138;

(1993);

……………………………………………………………

U.S.

………………………………,41

………………………………………………………,, 42

Watson

Supp

609

(1974);

Gathering, Inc., 2 F.3d 1397, 1407-08 (5th Cir. 1993);

41

…………………………………………………………… 378

U.S.

368,

U.S.

F.

…………………………………………………………….,

Weeks.

375

372

Natural Gas Pipeline Company of America v. Energy

v.

Memphis.

Caper,

526;

Jackson

v.

v.

387

n.

14;

……………………….., 42

……………………………………………………., 41

Richerson v. Jones, 551 F.2d 918, 922 (3d Cir. 1977);

Weeks v. U.S.. 232 U.S. 383;………………………...

…………………………………………,42

…………………………………………, 42

Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 n.5 (3d

People

v.

Schmidt,

216

N.Y.

324,

340;

Cir. 1992);………..…………...……., 42

………………………………………………………., 42

Cape May Greene, Inc. v. Warren, 698 F.2d 179, 185 (3d

Hirabayashi v. United States, 320 U.S. 81, 113;

Cir. 1983);……………………. ….., 42

………………………………………………, 42.

Michigan Trust Co. v. Ferry, 228 U.S. 346, 33 S.Ct. 550, 57 L.Ed. 867 (1913);………………., 42

18

Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203

Dodge

(1988);…………………………….., 43

……………………………………………………………

Coppedge v. United States, 369 U.S. 438, 442 (1962);

…., 43

…………………………………………, 43

National

Cody, Inc. v. Town of Woodbury, 179 F.3d 52, 56 (2d Cir.

………………………………………………………….,

Pippin

v.

v.

How.

Dearing,

91

U.S.

347;

35;

v.

Cole,

129

U.S.

43;

……………………………………………………………

Cir. 1997);…………………………., 43 of

Bank

Shreveport

United States v. Fitzgerald, 109 F.3d 1339, 1341-42 (8th

use

Woolsey,18

43

1999);……………………………, 43

United States

v.

…, 43

J.R. Youngdale

Davis

Construction Co., 923 F.2d 146, 148 (9th Cir. 1991);

v.

Burke,

179

U.S.

403;

……………………………………………………………

……………………………………………………………

…......, 43

………………………………, 43

19

Cooper

v.

Telfair,

4

Dall.

18;

Moe v. Dinkins, 635 F.2d 1045, 1048 n7 (2d Cir. 1980);

………………………………………………………...

………………………………………, 45

…………., 43

Lent v. Tilson, 140 U.S. 316, 35 L.ed. 419, 11 Sup. Ct.

Katris v. Immigration and Naturalization Service, 562

825;……………………………….…, 46

F.2d 866, 869-70 (2d Cir. 1977);…...…, 45

United States Smelting Co. v. Parry, 166 Fed. 407;

Boritzer v. Blum, No. 80- CV-480, 1985 WL 25022 at 5-6

……………………………………………., 46

(S.D.N.Y. April 2, 1985);……...…, 45

King v. West Virginia, 216 U.S. 92, 100, 54 L. Ed. 396,

Matter of Hendrix, 986 F.2d 195, 200-01 (7th Cir. 1993);

30 S. Ct. 225 (1910);………….……, 46

……………………………………, 45

Banco Nacional de Cuba v. Farr, 383 F.2d 166, 178 (2d

Piambino v. Bailey, 757 F.2d 1112, 1131 n. 44 (11th Cir.

Cir. 1967),cert. denied, 390 U.S. 956, 19 L. Ed. 2d 1151,

1985);……………………………...., 45

88

Sheebonnet, Ltd. v. Am. Express Bank, Ltd., 17 F.3d 46,

…………………………………………………….……,

48 (2d Cir1994);………………...…..,45

46

20

S.

Ct.

1038

(1968);

Legate v. Maloney, 348 F.2d 164, 166 (1st Cir. 1965);

Dent

………………………………………., 46

………………………………………………………….,

Chambers,

501

U.S.

at

43;

v.

West

Virgina,

129

U.S.

114;

48

……………………………………………………………

Cummings

……….., 46

………………………………………………………,

United States v. Hudson & Goodwin, 11 U.S. (7 Cranch)

48

32, 34 (1812);………………………, 46

Ex

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985);

……………………………………………………………,

……………………………………….., 46, 47, 48

25, 48

Brookfield Const. Co, v. Stewart, 284 F.Supp. 94;

New York v. United States, 342 U.S. 882, 884;

…………………………………………….., 47

…………………………………………...……, 48

United States v. Moats, 961 F.2d 1198, 1203 (5th Cir.

United States v. Wunderlich, 342 U.S. 98, 101;

1992);……………………………….., 47

………………………………………………, 48

21

parte

v.

Missouri,

Garland,

4

4

Wall.

Wall.

277; 25,

333;

System

Fed.

v.

Wright,

364

U.S.

642,

648;

Reade

v.

Ewing,

205

F.2d

630;

………………………………………………….…., 48

……………………………………………………………

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992);

….., 49

…………………………...……….., 49

Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608;

Public Citizen v. United States Dep't of Justice, 491 U.S.

……………………………………., 49

440, 449 (1989);……………………, 49

Office of Communication of United Church of Christ v.

Scripps-Howard Radio v. Comm'n, 316 U.S. 4, 14;

FCC, 123 U.S. App. D.C. 328, 359 F.2d 994;

………………………………………….., 49

……………………………………………………………

Commission v. Sanders Radio Station, 309 U.S. 470, 477 ;

………………………...………, 49

………………………………….., 49

Compare Oklahoma v. Civil Service Comm'n, 330 U.S.

Associated

Industries

v.

Ickes,

134

F.2d

694;

127, 137 -139;…………...………….., 49

…………………………………………………, 49

Marvin

v.

Trout,

199

U.S.

212,

225

…………………………………………………………., 49

22

;

United States ex rel. Marcus v. Hess, 317 U.S. 537, 546;

……………………………………………………………

……………………………………., 49

…………………………, 51

Jones v. United States,362 U.S. 257, 261 (1960);

Friends of the Earth v. Laid law Environmental Services

…………………………………………….., 50

Inc., 528 US 167, 191, 120 S.Ct. 693, 145 L.Ed.2d 610

New York ex rel. Hatch v. Reardon, 204 U.S 152, 160;

(2000);

……………………………………..., 50

……………………………………………………………

West Virginia Bd. of Education v. Barnette, 319 U.S. 624,

…………, 51

638 (1943);………………………, 50

Bridge Company v.

Arizonans for Official English v. Arizona, 520 U.S. 43,

……………………………………..…….., 51

67,

King

117

S.Ct.

1055,

137

L.Ed.2d

170

(1997);

v.

Henderson City, 173 U.S. 592;

Mullins,

171

U.S.

404;

……………………………………………………………

……………………………………………………………

……………………………., 51

…., 51

Steel Co. v. Citizens for a Better Environment, 523 U.S.

San Diego Land & Town Co., v. National City, 174 U.S.

83, 118 S. Ct. 1003, 1012, 140 L.Ed.2d 210 (1998);

754;……………………..…………., 51

23

Florida Central & c. R. R. Co, v. Reyonds, 183 U.S.

Linkons

479;……………………………….., 52

…………………………………………………………….,

Central Pacific R.R. Co., v. Evans, 111 Fed. Rep. 76;

53

………………………………………., 52

Ratcliffe

Wayman

v.

Southard,

10

Wheat.

46;

v.

v.

53

52

McCullough v.

Cunningham,

20

Grat.

………………………………………………………,

31

Grat.

Grat.

775;

105;

v.

Virginia,

172

U.S.

102;

31;

……………………………………………………...…., 53

52,

kilburn

53 Wheeling

Anderson,

28

……………………………………………………………,

…………………………………………………………..,

Griffin

Shafer,

v.

Thompson,

103

U.S.

168;

……………………………………………………………., Bridge

Case,

18

How.

421;

53

………………………………………………………., 53

Luminous Unit Co. v. Freeman-Sweet Co., 3 F.2d 577 (7thCir. 1924);…………………………,53

24

Neal v. Brown, 980 F.2d 747, 749 n.1 (D.C. Cir. 1992);

Wilton,

515

U.S.

at

289;

………………………………………, 53

……………………………………………………………

Midway Mfg. Co. v. Kruckenberg, 720 F.2d 653, 654

…………, 53

(11th Cir. 1983);………………………,53

Brillhart v. Excess Ins. Co., 316 U.S. 491, 494–95 (1942);

Greater Boston Television Corp. v. FCC, 463 F.2d 268,

………………………………….., 53

276-79 (D.C. Cir. 1971);……………, 53

United States v. Couto, 311 F.3d 179, 185 (2d Cir. 2002);

Powers v. Bethlehem Steel Corp., 483 F.2d 963, 964 (1st

……………………………………, 53

Cir. 1973);…………………………, 53

Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d

Patterson v. Crabb, 904 F.2d 1179, 1180 (7th Cir. 1990);

Cir.2001);…………………………….., 54

…………………………………….., 53

In Brown v. Allen 344 U.S. 443, 496, (1953);

Briggs v. Pa. R.R., 334 U.S. 304, 306 (1948);

…………………………………………………,54

…………………………………………………., 53

WALEED S. BEY, v.

INSIGNIA RESIDENTIAL

GROUP AND LOCAL 32B-32J, . 00 Civ. 4823 (JSR)

25

(KNF)

2000

U.S.

Dist.

LEXIS

16605;

Adkins v. DuPont Co., 335 U.S. 331, 339-40 (1948);

……………………………………………, 54

…………………………………………..,54

Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir.

Murphy v. Hunt, 455 U.S. 478, 481, 71 L. Ed. 2d 353, 102

1989);…………………………….., 3, 54

S. Ct. 1181 (1982);………………., 55

Stewart v. McMickens, 677 F. Supp. 226, 228 [S.D.N.Y.

Roe v. Wade, 410 U.S. 113, 125, 35 L. Ed. 2d 147, 93 S.

1988]);…………………………….., 54

Ct. 705 (1973);……………...………, 55

Vargas v. City of New York, 1999 U.S. Dist. LEXIS

First National Bank v. Bellotti, 435 U.S. 765, 774, 55 L.

10406, No. 97 Civ. 8426, 1999 WL 486926, at 2

Ed.

[S.D.N.Y.

……………………………………………………………

July

9,

1999]);

2d

707,

98

S.

Ct.

1407

(1978);

…………………………………………………………..

………………………………,55 Southern Pac. Terminal

………, 54

Co. v. The Interstate Commerce Commission, 219 U.S.

Hodge v. Police Officers, 802 F.2d 58, 60-61 (2d Cir.

498, 515, 55 L. Ed. 310, 31 S. Ct. 279 (1911);

1986);…………………………………., 54

……………………………………………………….. …………, 55

26

Valley Construction Co. v. Marsh, 714 F.2d 26, 28 (5th

re

Cir. 1983);…………………………., 55

……………………………………………………………

Board of Educ. Of City of New York v. City-Wide

…, 57

Committee for Integration, 342 F.2d 284, 285-286,

U.S.

C.A.2d.

……………………………………………………………

(1965);……………………...

Quarles

v.

158

Dunnington,

U.S.

532

146

U.S.

(1895);

35;

…………………………………………………….., 55

…., 57

DeFunis v. Odegaard, 416 U.S. 312, 318, 40 L. Ed. 2d

Bragger v. Trinity Capital Enter. Corp., 30 F.3d 14, 1994

164, 94 S. Ct. 1704 (1974);…………, 55

(2d Cir. N.Y. 1994);………...….., 3, 54

City of Lakewood, Ohio v. Plainview Dealership, 486 U.S.

FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966);

750, 100 L. Ed. 2d 771, 108 S. Ct. 2138

……………………………………………, 58

(1988);

……………………………………………………………

Arrow Transp. Co. v. Southern Ry., 372 U.S. 658, 671

……..……………….., 55

n.22 (1963);…………………………, 58

Screws vs. United States, 325 U.S. 91, 65 S. Ct 1031, 89 L.Ed 1495;……………………, 56

27

United

Mine

Workers,

330

U.S.

………………………………………………………,

385;

United States. v.Int'l Broth. of Teamsters, 266 F.3d 45, 49-

15,

50 (2d Cir. 2001);………………., 58

28 Baldwin-United,

Oklahoma Packing Co. v. Oklahoma Gas & Elec. Co., 309 770

F.2d

at

335;

U.S. 4, 9 (1940);…………………, 58

……………………………………………………………

Atlantic,

…., 58

……………………………………………………………

Covanta Onondaga Ltd. v. Onondaga County Resource

………….., 59

Recovery Agency, 318 F.3d 392, 396(2d Cir. 2003);

Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 641

……………………………………………………………

(1977); ...……………………………….., 59

…………………………, 58

Toucey v. New York Life Ins. Co., 314 U.S. 118,

United States v. New York Tel. Co., 434 U.S. 159, 174

135(1941);…………………………………., 59

(1977);………………………………, 58

Kline v. Burke Constr. Co., 260 U.S. 226 (1922);

Sprint Spectrum L.P. v. Mills, 283 F.3d 404, 413-14 (2d

……………………………………………., 59

Cir. 2002);…………………………..,58

28

398

U.S.

at

295;

Kerr v. United States Dist. Court, 426 U.S. 394, 402

Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35

(1976);…………………………………., 60

(1980);…………………………………, 61

Pennsylvania Bureau of Correction v. U.S. Marshals

Papandreou,

Serv., 474 U.S. 34, 41 (1985);………., 3, 60

……………………………………………………………

McClung v. Silliman, 19 U.S. (6 Wheat) 598 (1821);

…….., 61

…………………………………………., 60

Mediators, Inc. v. Manney (In re Mediators Inc.), 105 F.3d

McIntire v. Wood, 11 U.S. (7 Cranch) 504 (1813);

822, 828 (2d Cir. 1997);…………., 61

…………………………………………….., 60

Samuels v. Mann, 13 F.3d 522, 526 (2d Cir. 1993), cert.

U.S. Alkali Export Asso. v. U.S. (1945) 325 U.S. 196;

Denied, 513 U.S. 849, 130 L. Ed. 2d 85, 115 S, Ct. 145

………………………………………….,61

(1994);

Banker’s Life & Casualty Co. v. Holland (1953) 346 U.S.

……………………………………………………………

379;………………………………., 61

………..........., 61

Will

v.

United

States

(1967)

389

U.S.

90;

Brown

………………………………………...……………., 61

v.

139

Richardson,

F.3d

395

F.Supp

at

250;

185,

…………………………………………………., 62

29

190;

Legal Aid Soc. Of Hawaii v. Legal Services Corp., 961

Stein v. New York, 346 U.S. 156, 184 (1953);

F.Supp.

…………………………………………………, 33

1402,

1419

(D.Hawaii

1997);

……………………………………………………………

Brockfied Constern Co. v. Stewart, 234 F. Supp. 94;

………………………………, 62

…………………………………………., 34

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

Life & Fire Insurance Co. V. Adams, 9 Pet. (U.S.) 573,

439;……………………………… , 4, 61

9 L. Ed 234;……………………, 34

Carey

v.

Piphus,

435

U.S.

247,

259

(1978);

Johnson v. Eisentrager, 339 U.S. 763, 783, (1950);

…………………………………………………, 4, 61

……………………………………………, 62

Mathews v. Eldrigdge, 424 U.S. 319, 344 (1976);

Myers

…………………………………………, 4, 61

……………………………………………………….., 61

Marshall v. Jerrico, 446 U.S. 238, 242 (1980);

Ferreira,

………………………………………………, 4, 61

……………………………………………………………

Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314

….., 61

(1950);………………………….., 4, 61

30

v.

United

13

How.

States,

40

272

U.S.

52;

(1852);

Hayburn's

Case,

2

Dall.

409

(1792);

Eastway Construction Corp. v. New York, 762 F.2d 243,

…………………………………………………………..,

253 (2d Cir. 1985);………………..., 45

61

Oliveri v. Thompson, 803 F.2d 1265 (2d Cir. 1986);

American Communications Assn. v. Douds, 330 U.S. 382,

…………………………………………., 45

442-443 (1950);………………….., 62

Greenberg v. Hilton Int’l Co., 870 F.2d 926 (2d Cir.

Hamilton v. Regents, 293 U.S. 245, 262-263, (1934);

1989);……………………………..…….. 45

……………………………………….., 63

McMahon v. Shearson/American Exp., Inc., 896 F.2d 17

Pavelic & LeFlore v. Marvel Entertainment Group, 493

(2d Cir. 1990);………………...……, 45

U.S.

People of the State of New York, v. Alonzo Snyder, 41

, 107, L.Ed 2d 438, 110 S.Ct. 459 (1989);

……………………………………………………………

N.Y., 403;………………………….,44

…………………………….., 34

Bacharach

Business Guides v. Chromatic Com., 112 L Ed. 1140, at

…………………………………………………………..,

1152;………………………………, 34

44

31

v.

La

Grave,

1

Hun.,

695;

OWINGS v. NORWOOD'S LESSEE, 9 U.S. 344; 3 L. Ed.

Aslanidis v. United States Lines. Inc., 7 F.3d 1067, 1072-

120, (1809);……………………, 44

73 (2d Cir. 1993);…………………., 27

HARRIET

HACKLEY,

v.

JOSEPH

ADDISON

Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 254

BRADEN, 57 U.S. 635; 14 L. Ed. 1090; (1850);

(1992);………………………………., 27

……………………………………………………………

United States v. Piervinanzi, 23 F.3d 670, 677 (2d Cir.

…………………………….., 44

1994);…………………………………,27

JAMES FOSTER vs. DAVID NEILSON, 27 U.S. 253; 7

Perrin v. United States, 444 U.S. 37, 42 (1979);

L. Ed. 415, (1829);………………., 44

………………………………………………, 27

CONWAY ET AL. vs. TAYLOR'S EXECUTOR, 66 U.S.

Wein

603; 17 L. Ed. 191, (1861);……., 44

…………………………………………………………….,

Lee v. Bankers Trust Co., 166 F.3d 540, 544 (2d Cir.

57

1999);…………………………………, 27

People ex rel. Burby v Howland, 155 N.Y. 270, 281);

Greenery Rehabilitation Group, Inc. v. Hammon,150 F.3d

…………………………………………., 57

226, 231 (2d Cir. 1998);…………., 27

32

v.

New

York

,

39

N.Y.2d

136;

Saratoga County Chamber of Commerce v. Pataki,

28 U.S.C. §1291, ..…………………, 2, 3, 23, 25, 26, 27,

100N.Y.2d 801, 798 N.E.2d 1047, 766 N.Y.S.2d 654

28, 36, 38, 39, 40, 41, 43, 45, 46, 47, 48

(N.Y.

28

06/12/2003);

U.S.C.

Section

1292,

……………………………………………………………

……………………………………………………………

…, 57

…..…, 23, 47

United States v. Cogdell, 844 F.2d 179, 181 (4th Cir 1988);

28

………………………………….., 62

……………………………………………………….

United States v. Lizottte , 856 F.2d 341, 343 (1st Cir

…………, 22, 23

1988); …………………………………., 62

28

United State v. Heineman, 801 F.2d 86, 93 (2d Cir 1986),

…………………………………………………...…….,

cert

22, 23, 58

denied,

479

U.S.

1094

(1987);

U.S.C.

U.S.C.

Section

Section

1254(1),

1651(a),…...

……………………………………………………………

28

…………………………………...…..62

……………………………………………………………

STATUTES AND RULES

……….., 23, 55

33

U.S.C.

Section

1915,

28

U.S.C.

Section

1331,

FED.

R.

APP.

P.

……………………………………………………………

……………………………………………

……….., 22, 23

…………………,23, 24, 48, 54

42

U.S.C.

Section

1988,

FED.

R.

APP.

28(a)

P.

28(b)

……………………………………………………………..

……………………………………………………………

…..….., 23, 55

…………, 23, 48

42

U.S.C.

Section

1983,

FED.

R.

APP.

P.

3,

……………………………………………………………

……………………………………………………………

……….., 23, 55

…………….., 23, 47

FED.

CIV.

P.

Rule12

(b)(1)

and

12(b)(6),

FED.

R.

APP.

P.

3(c)(1),

……………………………… ………….………, 23, 41

……………………………………………………………

Fed.

….., 23, 47, 48

R.

Civ.

P.

Rule

12(c);

……………………………………………………………

Federal

….., 23, 34

………………………………………………., 23, 48

34

Rule

of

Appellate

Procedure

4(a)(1),

Federal

Rule

of

Appellate

Procedure

4(a)(2),

New

York

State

Bar

Association,

………………………...…………………, 23, 27, 43

………………………….………………., 23, 45

125

OTHER:

F.R.D.

523,

531

(1989);

……………………………………………………………

15A Wright Miller & Cooper, Federal Practice &

……...., 30

Procedure

Local

Rule

27,

2d

(West

1992)

Section

3911…………………………………………..

……………………………………………………………

…………………………………………, 25, 41, 42

………………, 23, 48

The

Rule

20

of

the

United

States

Supreme

court,

Federalist,

at

480

(B.

Wright,

ed.,

1961),

………………………….…………………, 19, 62

………………………………………………, 22, 24

Federalist No. 47, p. 301 (C. Rossiter ed., 1961);

Judiciary Act of 1789, ch 20, §13, §22, §25, 1 Stat 73, 80,

…………………………………………..…, 51

………………...……………,22, 23, 24

Federalist

DR 7-102 [A] [1], [2]) and DR 7-106(b)(1) of the ABA

…………………………………………………………….

Code of Professional Responsibility, as adopted by the

…, 51

35

No.

84,

pp.

513,

515;

G. Wood, The Creation of the American Republic 1776-

Cooley,

1787, pp. 536-543 (1969);…………..,51

……………………………………………………………

The First Congress enacted the Bill of Rights. R. Goldwin,

……, 53

From

Sedgw.

Parchment

to

Power

75-153

(1997);

Con.

Stat.

Lim.

&

87,

Const.

95,

L.

138,

174;

146,

……………………………………………………………

…………………………………………………………...

………………………….…., 51

…, 53

The Bill of Rights as a Constitution, 100 Yale L. J. 1131,

Appeals Before Final Judgment, 15 LITIG., Spring 1989,

1132 (1991);…………………...….., 51

at 18, 19),………………...…….., 2, 25

Easterbrook, Presidential Review, 40 Case W. Res. L.

Dicta and Article III, 142 U. PA. L. REV. 1997, 2035

Rev. 905, 926 (1990), ………………, 60

(1994),………………….,4, 30, 31, 61,, 62

Cooley

s

Const.

Limitations,

92,

The Original and Exclusive Jurisdiction of the United

……………………………………………………………

States

Supreme

Court,

2

…., 53

…………………………………………………………… …………………………, 22, 24

36

SLU

LJ

111

(1952),

Joan Steinman, The Scope of Appellate Jurisdiction:

171,

Pendent Appellate 49 HASTINGS L.J. 1337, 1339 (1998)

……………….., 21, 27, 48

(citing 15A CHARLES ALAN WRIGHT, ARTHUR R.

The Doctrine of Stare Decisis, 21 Wayne L. Rev. 1043,

MILLER

1046–47 (1975);…………………….., 29

& EDWARD

H.

COOPER,

FEDERAL

172

(1984),

……………………………….

PRACTICE AND PROCEDURE: JURISDICTION 2d §

The Theory of Judicial Decision, 36 Harv. L. Rev. 940,

3905.1

943 (1923); ………………...……….., 29

(1992

&

Supp.

1996));

……………………………………………………………

In Thomas E. Baker & Douglas D. McFarland, The Need

……, 25

for a New National Court, 100 HARV. L. REV. 1400,

Carleton M. Crick, The Final Judgment Rule as a Basis for

Appeal,

41

YALE

L.J.

539

1406

(1932),

(1987);

……………………………………………………………

……………………………………………………………

……., 29

…………………………………,25, 28

Samuel Estreicher, Conserving the Federal Judiciary for a

Maurice Rosenberg, Solving the Federal Finality-

Conservative Agenda, 84 MICH. L. REV. 569, 570

Appealability Problem, 47 LAW & CONTEMP. PROBS.

(1986);

37

……………………………………………………………

……………………………………………………………

………...….., 30

……., 33

Paul D. Carrington, Butterfly Effects: the Possibilities of

William O. Douglas, Stare Decisis, 49 Colum. L. Rev.

Law Teaching in a Democracy, 41 Duke L.J. 741,

735, 736 (1949);……………………., 33

754(1992) (“Official reporters of judicial decisions were

Henry Paul Monaghan, Stare Decisis And Constitutional

in place in most American jurisdictions in 1815, decades

Adjudication,

before such a function was known to England, France or

……………………………………………………………

Germany.”);

……………………………., 33

……………………………………………………………

“It is revolting to have no better reason for a rule of law

………………………, 32

than that . . . it was laid down in the time of Henry IV.”

Frederick G. Kempin, Jr., Precedent and Stare Decisis:

Oliver Wendell Holmes, The Path of the Law, 10 Harv. L.

The Critical Years 1800–1850, 3 Am. J. Legal Hist. 28, 30

Rev.

n.4

……………………………………………………………

(1959);

88

Colum.

457,

L.

Rev.

469

…………………………………, 33, 58

38

723

(1988);

(1897);

16

Am

Jur

2d

177,

178,

……………………………………………………………

……………………………………………………………

………………….,60

……..…….., 34

Hand, Learned, in Dillard, Irving, The Spirit of Liberty

Edward H. Cooper, Timing as Jurisdiction: Federal Civil

(New

Appeals in Context, 47 LAW & CONTEMP. PROBS.

……………………………………………………………

157,

……………………………...…., 58

157

(1984),

York:

Alfred

A.

Knopf,

1960).

P.

104,

……………………………………………..…………., 48

Anthony D’Amato, “The Ultimate Injustice: When the

Robert J. Martineau, Defining Finality and Appealability

Court Misstates the Facts,” Cardozo Law Review, Vol. 11:

by Court Rule: Right Problem, Wrong Solution, 54 U.

1313

PITT.

…………………………………………………...

L.

REV.

717,

738

(1993),

…………………………………………….…., 49 Richard

H.

Fallon,

Jr.,

Of

Legislative

…………….., 28 Courts,

IN THE

Administrative Agencies, and Article III, 101 Harv L Rev 916

(1989);

SUPREME COURT OF THE

(1988);

UNITED STATES

39

PETITION FOR WRIT OF MANDAMUS AND WRIT OF PROHIBITION

JURISDICTION The date on which the United States Court of

Petitioner respectfully prays that a writ of Mandamus and

Appeals decides to deny my case without brief and record

Writ of Prohibition issue to review both order Docket 06-

being submitted was March 19, 2007.

5304-cv(L) and Docket 06-5321-cv (com), of the United

The United States Court of Appeals had granted

States Second Circuit Court of Appeal below.

plaintiff/appellant motion to file out of time petition for OPINIONS

rehearing en banc. Then the court of appeal had

BELOW

reconsidered the said granted motion to file an out of time

The opinion of the United States court of appeals

motion for petition to file rehearing en banc and denied

appears at Appendix____, to the petition and is

said motion for rehearing en banc.

unpublished.

The jurisdiction of this Court is invoked under

The opinion of the United States district court

Section 1651(a), Title 28, United States Code, and Rule 20

appears at Appendix______, to the petition and is

of the Rules of this Court, 28 U.S.C. Section 1254(1); 28

unpublished.

U.S.C. Section 1331 and Judiciary Act of 1789, ch 20,

40

§13, §22, §25, 1 Stat 73, 80, Article III Section 2 cl.2, of

States, 6 Cranch, 307, See generally Wienczyslaw J.

the Constitution for United States of America, and

Wagner, The Original and Exclusive Jurisdiction of the

authority of United States v Ravara, 2 US (2 Dall) 297,

United States Supreme Court, 2 SLU LJ 111 (1952), and

298 (Cir Pa 1793); Chisholm v Georgia, 2 US (2 Dall)

to grant the writ of prohibition and writ of mandamus to

419, 436 (1793); Bors v Preston, 111 US 252, 256--61

the Court of Appeals, sought by petitioner.

(1884); Ames v Kansas ex rel. Johnston, 111 US 449,

CONSTITUTIONAL AND STATUTORY

463- 71 (1884); Northern Pipeline Construction Co. v

PROVISIONS INVOLVED

Marathon Pipe Line Co., 458 US 50, 69-70 n 23 (1982);

1.

Article III, §2, cl. 1 and cl 2, of the

Marbury v. Madison, 5 U.S. (1 Cranch) at 172, 177-80;

Constitution

Osborne v. Bank of the United States, 22 U.S. (9 Wheat)

America,

738, 798 (1824); Gully v.First Nat'l Bank, 299 U.S. 109,

………………………..…, 2, 22, 24, 28, 33,

112-13 (1936) and Cohen v. Virginia, 6 Wheaton (19

34, 35, 36, 50, 60

U.S.) 264 (1821); Wiscort v. Dauchy, 3 Dallas, 321; States

2.

v. More, 3 Cranch, 159 and Durousseau v. The United

for

the

United

States

……………………….

United States Constitution Article VI Clauses 2, and 3, …………………,31, 35, 45

41

for

3.

4.

8.

Ninth Amendment to the Constitution for

6.

7.

U.S.C.

Section

1651(a),…...….

United States for America, …………..., 55

………………………………….….….,

Equal Protection Clause of the Fourteenth

22, 58

9.

Amendment, …………, 33, 35, 36, 55, 61 5.

28

28

U.S.C.

Section

18,

1915,

28 U.S.C. §1291, ..……2, 3, 18, 25, 26, 27,

………………………………………………

28, 36, 38, 39, 40, 41, 43, 45, 46, 47, 48

………...,18, 55

28

U.S.C.

Section

10.

1292,

28

U.S.C.

Section

1331,

………………………………………………

…………………………………………….

……..…, 18, 47

…………..,18, 22

28

U.S.C.

Section

11.

1254(1),

42

U.S.C.

Section

1988,

……………………………………..….

………………………………………………

………..…, 18, 22

…..… .., 18, 55

42

12.

13.

14.

42

U.S.C.

Section

17.

1983,

APP.

P.

3,

………………………………………………

……….., 18, 55

…………….., 19, 47

18.

FED. CIV. P. Rule12 (b)(1) and 12(b)(6),

FED.

R.

APP.

P.

3(c)(1),

…………………. ………….…...…, 18, 41

………………………………………………

Fed.

….., 19, 47, 48

R.

Civ.

P.

Rule

12(c);

19.

…...., 18, 34 FED.

R.

APP.

P.

20.

28(a)

R.

APP.

Federal Rule of Appellate Procedure 4(a)(2), …………...…………………, 19, 27, 43

…………………,19, 24, 48, 54 FED.

Federal Rule of Appellate Procedure 4(a)(1), …………………………………., 19, 48

………………………………

16.

R.

………………………………………………

………………………………………………

15.

FED.

21. P.

28(b)

125

F.R.D.

523,

531

(1989);

………………………………………………

………………………………………………

…..., 19,30

…………, 19, 48

43

22.

Rule

20

Local

Rule

1.

27,

This petition is filed pursuant to the

………………………………………………

authority to issue extraordinary writ vested in this Court

…………………, 19, 48

by the provisions of Section 1651(a), Title 28, United

of

the

United

States

Supreme

States Code, and Rule 20 of the Rules of this Court, 28

court,

………………………………….………, 19, 22, 24

U.S.C. Section 1254(1); 28 U.S.C. Section 1331 and

Judiciary Act of 1789, ch 20, §13, §22, §25, 1 Stat 73, 80,

Judiciary Act of 1789, ch 20, §13, §22, §25, 1 Stat 73, 80,

………………..……………, 19, 22, 24

Article III Section 2 cl.2, of the Constitution for United

DR 7-102 [A] [1], [2]) and DR 7-106(b)(1) of the ABA

States of America, and authority of United States v

Code of Professional Responsibility, as adopted by the

Ravara, 2 US (2 Dall) 297, 298 (Cir Pa 1793); Chisholm v

New

Georgia, 2 US (2 Dall) 419, 436 (1793); Bors v Preston,

York

State

Bar

Association,

111 US 252, 256--61 (1884); Ames v Kansas ex rel.

………………………….………………., 19, 45

Johnston, 111 US 449, 463- 71 (1884); Northern Pipeline Construction Co. v Marathon Pipe Line Co., 458 US 50,

STATEMENT OF THE

69-70 n 23 (1982); Marbury

CASE.

44

v. Madison, 5 U.S. (1

Cranch) at 172, 177-80; Osborne v. Bank of the United

appellant to present in its brief a “jurisdictional statement”

States, 22 U.S. (9 Wheat) 738, 798 (1824); Gully v.First

as well as a “statement of the issues,” “statement of the

Nat'l Bank, 299 U.S. 109, 112-13 (1936) and Cohen v.

case,” “statement of facts,” and “argument”), and to

Virginia, 6 Wheaton (19 U.S.) 264 (1821); Wiscort v.

review both order Docket 06-5304-cv(L) and Docket 06-

Dauchy, 3 Dallas, 321; States v. More, 3 Cranch, 159 and

5321-cv (com), of the United States Court of Appeals for

Durousseau v. The United States, 6 Cranch, 307, See

the Second Circuit Court of New York declining to allow

generally Wienczyslaw J. Wagner, The Original and

an appeal from a final Orders of the District Court, of

Exclusive Jurisdiction of the United States Supreme

both cases Docket 06-5304-cv(L) and Docket 06-5321-cv

Court, 2 SLU LJ 111 (1952), and to grant the writ of

(com), entered on _____2007, which stated that: “The

prohibition and writ of mandamus to the Court of Appeals,

application of Denise Dalton and Robert Simon for a

sought by petitioner, and to prohibit the Second Circuit

temporary restraining order are DENIED. The court

Court of New York court of appeals from dismiss appeals

previously granted both applicants a 90 –day extension

docket 07-3716, prior to full briefing on the merits as well

to oppose the motions to dismiss. In light of applicants’

as jurisdiction FED. R. APP. P. 28(a) (requiring the

pro se status, the Court grants a FINAL extension.

45

Applicants will now have a total of 120 days to oppose

Camilo-Robles v. Hoyos, 151 F.3d 1, 8 (1st Cir. 1998). In

the motion to dismiss. If applicants do not file

the ordinary course, the United States Court of Appeals

opposition papers by DEC. 15, 2006 , the Court shall

for the Second Circuit Court of New York, jurisdiction

deem such motions as unopposed. If objections to the

extends only to appeals from "final decisions" of the

Magistrate’s orders are not filed by Dec. 15, 2006, any

district courts. 28 U.S.C. § 1291. A district court's

objections are deemed waived. This is the last and final

decision is "final" if it "ends the litigation on the merits

extension the applicants will be granted.” Appeals

and leaves nothing for the court to do but execute the

Before Final Judgment, 15 LITIG., Spring 1989, at 18,

judgment." Catlin v. United States, 324 U.S. 229, 233

19); In United States v. F. & M. Schaefer Brewing Co.,

(1945). Once such a “final decision” is reached, the

356 U.S. 227, 232 (1958), the court: “holding that a

appellate court has jurisdiction to review all previous

pronouncement amounts to a final judgment where it

district court orders that led to that final decision. See,

"clearly evidences the judge's intention that it shall be his

e.g., Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 710

final act in the case” “When the district court's order is un-

(1996) “The general rule is that ‘a party is entitled to a

illuminating, the appellate court must fend for itself.”

single appeal, to be deferred until a final judgment has

46

been entered, in which claims of district court error at any

4(a)(2) (2001). This rule allows notice of appeal from a

stage of the litigation may be ventilated.’” (quoting Digital

non-final decision to operate as an effective notice of

Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 866

appeal from a decision that would be appealable upon

(1994)); see also Joan Steinman, The Scope of Appellate

final judgment. FirsTier Mortgage Co. v. Investors

Jurisdiction: Pendent Appellate 49 HASTINGS L.J. 1337,

Mortgage Ins. Co., 498 U.S. 269, 276 (1991). Robert

1339 (1998) (citing 15A CHARLES ALAN WRIGHT,

Simon’s Plaintiff filing his notice of appeal comports with

ARTHUR R. MILLER & EDWARD H. COOPER,

Rule 4(a)(2) and the Second Circuit court Appeals of New

FEDERAL

York, therefore, has jurisdiction to hear the appeal.

PRACTICE

AND

PROCEDURE:

JURISDICTION 2d § 3905.1 (1992 & Supp. 1996)); See

2.

Legislation is not open to the charge of

Carleton M. Crick, The Final Judgment Rule as a Basis

depriving one of his rights without due process of law, if

for Appeal, 41 YALE L.J. 539 (1932). “A notice of appeal

it be general in its operation upon the subjects to which it

filed after the court announces a decision or order but

relates, and is enforceable in the usual mode established

before the entry of the judgment or order—is treated as

in the administration of government with respect to

filed on the date of and after the entry.” Fed. R. App. P.

kindred matters;

47

that is, by process or proceedings

adopted to the nature of the case. Dent v. West Virgina,

citing Osborn v. Bank of the United States, 9 Wheat (22

129 U.S. 114, distinguishing Cummings v. Missouri, 4

U.S.) 738, 866, 6 L.Ed 204 (1824); U.S. v. Simpson, 927

Wall. 277,

4 Wall. 333. The

F.2d 1088, 1090 (9th Cir. 1991). Here, the Second Circuit

Supreme Law of the Land holds that: "No man in this

Court of New York have discretion to issue out a writ

country is so high that he is above the law. No officer of

mandamus where future appellate jurisdiction “might

the law may set that law at defiance with impunity. All the

otherwise be defeated by the unauthorized action of the

officers of the government, from the highest to the lowest,

court below.” Thus, mandamus could issue upon a federal

are creatures of the law, and are bound to obey it." Butz v.

trial court refused to adjudicate a case at all (thus

Economou, 438 U.S. 478, 98 S.Ct. 2894 (1978); Scheuer

preventing a reviewable“ final decision” from ever being

v. Rhodes, 416 U.S. 232, 239, 94 S.Ct. 1683, 1687-88

reached,) See, McClellan v. Carland, 217 U.S. 268, 280

(1974); United States v. Lee, 106 U.S. 196, 220, 1 S .Ct.

(1910); Roche, 319 U.S. at 25 noting that the federal

249, 26 1 (1862); Marbury v. Madison, 1 Cranch 137

courts of appeals have authority to issue writs of

(1803). Where a judge has a duty, he has no discretion.

mandamus “in aid of” its jurisdiction because “[o]therwise

Littleton v. Berbling, 468 F.2d 389, 412 (7th Cir. 1972),

the appellate jurisdiction could be . . . thwarted by

and Ex parte Garland,

48

unauthorized action of the district court obstructing the

"clearly evidences the judge's intention that it shall be his

appeal”. See, e.g., In re Simons, 247 U.S. 231 (1918); In

final act in the case”. In addition, in FirsTier Mortgage

re Skinner & Eddy Corp., 265 U.S. 86 (1924); Soper v.

Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 276

Maryland, 270 U.S. 9 (1926); Los Angeles Brush Mfg.

(1991) “A notice of appeal filed after the court announces

Corp. v. James, 272 U.S. 701 (1927); Colorado v. Symes,

a decision or order but before the entry of the judgment or

286 U.S. 510 (1932); Ex parte Republic of Peru, 318 U.S.

order is treated as filed on the date of and after the entry.”

578 (1943).

Fed. R. App. P. 4(a)(2). This rule allows notice of appeal

3.

In both cases 06-5304-cv and 06-5321-cv,

from a non-final decision to operate as an effective notice

the final orders has been issued by the district court as

of appeal from a decision that would be appealable upon

contemplated by 28 U.S.C.1291 and Coopers & Lybrand

final judgment. Robert Simon’s Plaintiff filing of its

v. Livesay, 437 U.S. 463, 467 (1978) As stated above

notice of appeal comports with Rule 4(a)(2) and the

herein, In United States v. F. & M. Schaefer Brewing Co.,

Second Circuit court Appeals of New York, therefore, has

356 U.S. 227, 232 (1958), the court “holding that a

jurisdiction to hear the appeal under 28 U.S.C. Section

pronouncement amounts to a final judgment where it

1291. "It is axiomatic that the plain meaning of a statute

49

controls its interpretation …." Lee v. Bankers Trust Co.,

are unambiguous, this first cannon is also the last [and]

166 F.3d 540, 544 (2d Cir. 1999) (citing Greenery

judicial inquiry is complete." Piervinanzi, 23 F.3d at 677

Rehabilitation Group, Inc. v. Hammon,150 F.3d 226, 231

(quotations and citations omitted). Maurice Rosenberg,

(2d Cir. 1998)). "[W]hen looking at its language, a court

Solving the Federal Finality-Appealability Problem, 47

should presume that the statute says what it means."

LAW & CONTEMP. PROBS. 171, 172 (1984). Now, the

Aslanidis v. United States Lines. Inc., 7 F.3d 1067, 1072-

orders dated March 19, 2007 issue by the Judges/ Second

73 (2d Cir. 1993) (citing Connecticut Nat'l Bank v.

Circuit court Appeals of New York, which state that: “The

Germain, 503 U.S. 249, 254 (1992)); accord United

Defendant-Appellant State of New York moves to dismiss

States v. Piervinanzi, 23 F.3d 670, 677 (2d Cir. 1994).

the appeal docketed under 06-5304-cv because a final

"Unless otherwise defined, individual statutory words are

order has not been issued by the district court as

assumed to carry their ordinary, contemporary, common

contemplated by 28 U.S.C. 1291. The Motion is

meaning." Hammon, 150 F.3d at 231 (quotation and

GRANTED and the appeal docketed under 06-5304-cv is

citations omitted); accord Perrin v. United States, 444

DISMISSED. Furthermore, this Court has determined sua

U.S. 37, 42 (1979). "Indeed, when the words of a statute

sponte that it also lacks jurisdiction over the appeal

50

docketed under 06-5321-cv because a final order has not

This approach identifies a consistent “core idea” of

been issued by the district court as contemplated by 28

precedent that courts must consider how a similar case

U.S.C.1291.

See Coopers & Lybrand v. Livesay, 437

was decided in the past, even where there are varying

U.S. 463, 467 (1978). Therefore, it is ORDERED that the

ideas about the binding nature of that precedent. A long-

appeal docketed under 06-5321-cv is also DISMISSED.”

standing tradition has viewed precedent as a necessary

4.

Anthony

D’Amato,

“The

Ultimate

starting point for judicial decision. When a court departs

Injustice: When the Court Misstates the Facts,” Cardozo

from this core idea, it violates the essential function of the

Law Review, Vol. 11: 1313 (1989). The above orders

judiciary to treat like cases alike or explain the difference.

March 19, 2007, issued by Second Circuit court Appeals

The Supreme Court indicated that the power of judicial

of New York, is a violation Article III of the United States

review should be exercised reluctantly, only because it is

Constitution, abused its discretion and Usurp its authority,

essential to the decision of the case before a federal court

and a fraud upon the United States Constitution. Judicial

and because the Constitution and the laws of the United

power includes a doctrine of precedent, without relying

States, as the "Supreme law of the Land, " require it. See,

solely upon an original list interpretation of Article III.

Baker v. Wade, 769 F.2d 289, 298 (5th Cir. 1985)

51

(Goldberg, J., dissenting)(citing Marbury v. Madison, 5

setting and from prior interpretations of statutes in the area

U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803); Martin v.

of legislation must either be followed, distinguished, or

Hunter's Lessee, 14 U.S. (1 Wheat) 304, 4 L.Ed. 97

overruled. Binding precedent is a presumptive but not an

(1816)); See Carleton M. Crick, The Final Judgment Rule

absolute constraint on what courts may do. When the

as a Basis for Appeal, 41 YALE L.J. 539 (1932).

source of law is the common law, as opposed to

5.

The Second Circuit court Appeals of New

interpretation of a statute or a constitution, it is often said

York cannot reject, dismiss, disregard, or deny Supreme

that a case is squarely on point only if the facts of the case

Court precedent authority in United States v. F. & M.

are sufficiently similar and the general principles

Schaefer Brewing Co., 356 U.S. 227, 232 (1958) and

necessary to the decision correspond to the present case. If

FirsTier Mortgage Co. v. Investors Mortgage Ins. Co.,

not, the prior case may be “distinguished,” and there is

498 U.S. 269, 276 (1991). As usually stated, the doctrine

then said to be no precedent to follow. This is the “ case

of precedent at its core is that the holding of a case must

system game”, “the game of matching cases.” Indeed, it is

be followed in similar cases, until overruled. “Binding”

often said that the classification of a legal system as

precedent from factually similar cases in the common law

common law, as opposed to civil law, is because it is

52

based upon a system of precedent. See, The Doctrine of

Coal Co., 534 U.S. 438, 460-62, 151 L. Ed. 2d 908, 122 S.

Stare Decisis, 21 Wayne L. Rev. 1043, 1046–47 (1975);

Ct. 941 (2002), and Cf. United States v. Kras, 409 U.S.

The Theory of Judicial Decision, 36 Harv. L. Rev. 940,

434, 34 L. Ed. 2d 626, 93 S. Ct. 631 (1973). In Thomas E.

943 (1923). Yet, the Second Circuit court Appeals of

Baker & Douglas D. McFarland, The Need for a New

New York, have knowingly, willfully, and unlawfully

National Court, 100 HARV. L. REV. 1400, 1406 (1987)

ignore the United States Supreme Court precedent, which

(noting that the courts of appeals, at least for practical

state that: “a pronouncement amounts to a final judgment

purposes, have become the final expositors of federal law

where it "clearly evidences the judge's intention that it

in their geographical region in all but a miniscule number

shall be his final act in the case.” See, United States v. F.

of cases"; Samuel Estreicher, Conserving the Federal

& M. Schaefer Brewing Co., 356 U.S. 227, 232 (1958)

Judiciary for a Conservative Agenda, 84 MICH. L. REV.

and FirsTier Mortgage Co. v. Investors Mortgage Ins.

569, 570 (1986) (book review) (stating that "responsibility

Co., 498 U.S. 269, 276 (1991). The judiciary's job is to

for correction of error in federal cases lies primarily with

enforce the law Congress enacted, not write a different

the federal courts of appeals. . . and . . . these courts

one that judges think superior. See Barnhart v. Sigmon

should also assume a greater role in maintaining a uniform

53

federal law"); Report of the American Bar Ass'n Standing

6.

If “precedent” is simply the record of how

Comm. on Fed'l Judicial Improvements, The United States

previous cases were decided (so the argument goes), and

Courts of Appeals: Reexamining Structure and Process

courts are indeed bound by precedent, then how can a

After a Century of Growth, 125 F.R.D. 523, 531 (1989)

court mandate that what it has decided in the past is not

(stating that "the function of the courts of appeals in

precedent. The Supreme Court has left no doubt that as a

supervising the district judges within a circuit thus

constitutionally inferior court, we are compelled to follow

depends upon preserving the uniformity and coherence of

faithfully a directly controlling Supreme Court precedent

federal law, if not on a national level, then within each

unless and until the Supreme Court itself determines to

circuit itself"). In Interstate Commerce Commission v.

overrule

United States ex rel. Campbell, 289 U.S. 385, 394 (1933)

Shearson/American Express, Inc., 490 U.S. 477, 109

the court held: “Mandamus is an appropriate remedy to

S.Ct.1917, 104 L.Ed.2d 526 (1989). We may not reject,

compel a judicial officer to act. It may not be used as a

dismiss, disregard, or deny Supreme Court precedent,

substitute for an appeal or writ of error to dictate the

even if, in a particular case, it seems pellucidly clear to

manner of his action.”

litigants, lawyers, and lower court judges alike that, given

54

it.

See

Rodriguez

de

Quijas

v.

the opportunity, the Supreme Court would overrule its

a precedent of [the Supreme] Court has direct application

precedent. Members of this court have frequently

in a case, yet appears to rest on reasons rejected in some

"preached" against such judicial activism. In Williams v.

other line of decisions, the Court of Appeals should follow

Whitley, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750

the case which directly controls, leaving to [the Supreme]

(1978), Judge Higginbotham explained the limits placed

Court the prerogative of overruling its own decisions." Id.

on appellate courts regarding Supreme Court precedent:

at 484-85, 109 S.Ct. at 1921-22; see also id. at 486, 109

[A]bsent clear indications from the Supreme Court itself,

S.Ct. at 1923 (Brennan, J., dissenting) (describing

lower courts should not lightly assume that a prior

anticipatory overruling as "an indefensible brand of

decision has been overruled sub silentio merely because

judicial activism") . . . In these circumstances, our role as

its reasoning and result appear inconsistent with later

an inferior court counsels restraint, even if the result

cases. As [the district court] pointed out . . . the Court

otherwise appears inescapable. See, Cheney v. United

issued a reminder to this effect only a few years ago in

States District Court, 124 S. Ct. 2576, 2587 (2004); See

Rodriquez de Quijas v. Shearson/American Express, Inc.,

La Buy v. Howes Leather Co., 352 U.S. 249 (1957);

490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989): "If

Schlagenhauf v. Holder, 379 U.S. 104 (1964); Thermtron

55

Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976);

taken an oath to support the U.S. Constitution. He had a

See, Mallard, 490 U.S. at 309 and Dicta and Article III,

duty to support it, and had the solemn responsibility to

142 U. PA. L. REV. 1997, 2035 (1994).

guard, enforce, and protect every right granted or secured

7.

Under Article VI, clause 3, of the U.S.

by the Constitution of the United States for its citizens.

Constitution, every judge has taken an oath to support the

Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209 (1974).

U.S. Constitution. Whenever any judge violates the

Judge has acted contrary to his duty and to the rights of

Constitution in the course of performing his/her duties,

others, and in violation of the U.S. Constitution. In Mapp

then that judge is acting without lawful authority, has

-v- Ohio, 367 U.S. 643,659 (1961), the court held:

defrauded not only the Defendant or the Plaintiff involved,

"Nothing can destroy a government more quickly than its

but has also defrauded the government. Corruption has

failure to observe its own laws, or worse, its disregard of

been defined “as an act of an official or fiduciary person

the charter of its own existence. As Mr. Justice Brandeis,

who wrongfully acts contrary to duty and to the rights of

dissenting, said in Olmstead -v- United States, 277 U.S.

others." United States v. Ragen, 86 F. Supp. 382 (1949).

438, 485 (1928): "Our Government is the potent, the

Judge owed an allegiance to the United States and had

omnipresent teacher. For good or for ill, it teaches the

56

whole people by its example. . . . If the Government

power be granted for one purpose, it is not proper, and

becomes a lawbreaker, it breeds contempt for law; it

therefore unconstitutional. to exercise it for a purpose

invites every man to become a law unto himself; if invites

either forbidden, or not within the scope of its granted

anarchy."

powers. This is a fraud upon the Constitution of the

8.

The Second Circuit court Appeals of New

United States. It does by indirect what it cannot do by

have

knowingly,

unlawfully

direct legislation, and operates upon a subject which is put

committed fraud upon the United States Constitution, by

beyond its reach by the Constitution itself. See Judge

ignoring the United States Supreme Court precedent

Marshall In Gibbons -v- Ogden, 9 Wheat. 1, 199. See

authority, which state that: “a pronouncement amounts to

Weisbart v. United States, 222 F.3d 93 (2d Cir. 2000).

a final judgment where it "clearly evidences the judge's

Anastasoff v. United States, 223 F.3d at 899-900; National

intention that it shall be his final act in the case.” See,

League of Cities v. Usery. 426 U.S. 833 (1976); Garcia v.

United States v. F. & M. Schaefer Brewing Co., 356 U.S.

San Antonio Metropolitan Transit Authority,469 U.S. 528

227, 232 (1958) and FirsTier Mortgage Co. v. Investors

(1985); Brown v. Board of Ed., 347 U.S. 483, 494–95

Mortgage Ins. Co., 498 U.S. 269, 276 (1991). "If the

(1954), overruling Plessy v. Ferguson, 163 U.S. 537

York,

willfully,

and

57

(1896); See, e.g., Patterson v. McLean Credit Union, 491

Precedent and Stare Decisis: The Critical Years 1800–

U.S. 164, 175 n.1 (1989) (“As we have said, however, . . .

1850, 3 Am. J. Legal Hist. 28, 30 n.4 (1959); William O.

it is unnecessary for us to address this issue because we

Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 736

agree that, whether or not Runyon was correct as an initial

(1949; See generally, e.g., Henry Paul Monaghan, Stare

matter, there is no special justification for departing here

Decisis And Constitutional Adjudication, 88 Colum. L.

from the rule of stare decisis.”) (internal citations

Rev. 723 (1988); “It is revolting to have no better reason

omitted). Patterson addressed an issue of statutory

for a rule of law than that . . . it was laid down in the time

interpretation decided in Runyon v. McCrary, 427 U.S.

of Henry IV.” Oliver Wendell Holmes, The Path of the

160 (1976). Paul D. Carrington, Butterfly Effects: the

Law, 10 Harv. L. Rev. 457, 469 (1897).

Possibilities of Law Teaching in a Democracy, 41 Duke

9.

By ignoring the United States Supreme

L.J. 741, 754(1992) (“Official reporters of judicial

Court

decisions were in place in most American jurisdictions in

pronouncement amounts to a final judgment where it

1815, decades before such a function was known to

"clearly evidences the judge's intention that it shall be his

England, France or Germany.”); Frederick G. Kempin, Jr.,

final act in the case.” See, United States v. F. & M.

58

precedent

authority,

which

state

that:

“a

Schaefer Brewing Co., 356 U.S. 227, 232 (1958) and

898 (8th Cir. 2000). The Circuit herein impermissibly

FirsTier Mortgage Co. v. Investors Mortgage Ins. Co.,

creates restraints on the ability of litigant Robert Simon to

498 U.S. 269, 276 (1991), the Second Circuit court

exercise their constitutional rights to petition the

Appeals of New York, have knowingly, willfully, and

government for redress of grievances by disallowing the

unlawfully Violated the (1) Article III of the United States

use of judicial acts as binding authority. This also

Constitution; (2) separation of powers; (3) equal

trammels his free speech rights before the very tribunals

protection and due process guaranteed by the Fifth and

that are constitutionally charged with protecting free

Fourteenth Amendments to the United States Constitution;

speech. Every judicial decision and act in this Circuit is an

(4) the freedom of speech and the right to petition the

interpretation and declaration of a general principle or rule

government for redress of grievances guaranteed by the

of law which is authoritative to the extent necessary for

First Amendment to the United States Constitution; and

each particular decision and which should be applied in

(5) the doctrine of stare decisis. See James B. Beam

subsequent decisions to similarly situated parties. To the

Distilling Co. v. Georgia, 510 U.S. 529, 544, 111 S.Ct.

extent the courts of this circuit avoid the precedential

2439, Anastasoff v. United States of America, 223 F.3d

authority effect of prior decisions and allow publication of

59

only certain dispositions of the court, the law is applied

breaches the principle that litigants in similar situations

inequitably and unequally, and the judicial power is

should be treated the same, a fundamental component of

expanded beyond the constitutional bounds of Article III

stare decisis and the rule of law generally." [Citation

of the United States Constitution. Regardless of the level

omitted.] "We depart from this basic judicial tradition

of judicial expediency intended or obtained by the Rule or

when we simply pick and choose from among similarly

statutes, it cannot be justified within the bounds of the

situated defendants those who alone will receive the

United States Constitution; judicial expediency may be

benefit of a new rule of constitutional law." Id. at 537-38

obtained through less intrusive means. In James B. Beam

(quoting Desist v. United States, 394 U.S. 244, 258-59

Distilling Co., the Supreme Court recognized that new

(1969)).

rules of law may or may not be given retroactive effect,

10.

In Stein -v- New York, 346 U.S. 156, 184

but once a Court has applied the law to one litigant, it

(1953), the court held: "The duty to disclose knowledge of

must, as a matter of due process and equal protection,

crime rests upon all citizents. Fed. R. Civ. P. 12(c)

apply that rule to all litigants. James B. Beam Distilling

expressly states: “...all parties shall be given reasonable

Co., 501 U.S. at 535-36. "[S]elective prospectivity also

opportunity to present all material made pertinent to such

60

a motion by Rule 56” " The court stated that: “We give the

acts under mistaken belief he was authorize to act." Life

Federal Rules of Civil Procedure their plain meaning.’

& Fire Insurance Co. V. Adams, 9 Pet. (U.S.) 573, 9

Pavelic & LeFlore v. Marvel Entertainment Group, 493

L. Ed 234. Unless the rule of stare decisis is adhered to in

U.S.

, 107, L.Ed 2d 438, 110 S.Ct. 459 (1989). As with

the administration of justice under a government of laws,

a statute, our inquiry is complete if we find the text of the

all property must be rendered insecure. See, Jones v.

Rule to be clear and unambiguous.”, Business Guides v.

Anderson (1808) 4 Yeates 569, 575 (Pa. 1808); See, e.g.,

Chromatic Com., 112 L Ed. 1140, at 1152. "When any

Commonwealth v. Coxe, 4 Dall. 170, 192 (Pa. 1800)

court violates the clean and unambiguous language of the

“Stare decisis, is a maxim to be held forever sacred, on

Constitution, a fraud is perpetrated, and no one is bound

questions of property.” Equal protection and due process

to obey it." [16 Am Jur 2d 177, 178]. " ... an official who

rest on the doctrines of precedent and stare decisis

acts in execess of his statutory authority or in violation of

because they combine to insure that all citizens will be

the Constitution ... ceases to represent the Government."

subject to the same laws. See James B. Beam Distilling

Brockfied Constern Co. v. Stewart, 234 F. Supp. 94.

Co., 501 U.S. at 535-38, Planned Parenthood v. Casey,

" ... individually liable to any person injured/damaged by

505 U.S. 833, 854 (1992).

61

11.

Under Article VI, clause 3, of the U.S.

Appeals of New York, have knowingly, willfully, and

Constitution, every judge has taken an oath to support the

unlawfully abused their discretion and violated the

U.S. Constitution. Whenever any judge violates the

Supremacy Clause of the United States Constitution

Constitution in the course of performing his/her duties,

Article VI, Cl. 2, and authority in Jacobson v.

then that judge is acting without lawful authority, has

Massachusetts, 197 U.S. 25; Connolly v. Union Sewer

defrauded not only the Defendant or the Plaintiff involved,

Pipe Co., 184 U.S. 556, and United States v. Lee 106 U.S.

but has also defrauded the government. By ignoring the

196, 220 (1882), and the constitutional principles

United States Supreme Court precedent authority which

embodied in Article III, when it ignore the precedent

state that: “a pronouncement amounts to a final judgment

authority of United States v. F. & M. Schaefer Brewing

where it "clearly evidences the judge's intention that it

Co., 356 U.S. 227, 232 (1958) and FirsTier Mortgage

shall be his final act in the case.” See, United States v. F.

Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 276

& M. Schaefer Brewing Co., 356 U.S. 227, 232 (1958)

(1991), and granted defendant-Appellant State of New

and FirsTier Mortgage Co. v. Investors Mortgage Ins.

York motion to dismiss the appeal docketed under 06-

Co., 498 U.S. 269, 276 (1991), the Second Circuit court

5304-cv and sua sponte dismiss the appeal docketed under

62

06-5321-cv. “This Constitution, and the Laws of the

12.

The United States Court of Appeals for

United States which shall be made in Pursuance

the Second Circuit Court of New York have an unflagging

thereof . . . . shall be the Supreme Law of the Land . . . .

obligation to exercise the jurisdiction given to them

the Constitution or Laws of any State to the Contrary

pursuant to 28 U.S.C. § 1291 and Article III, §2, cl. 1 of

notwithstanding.” While the Framers of the Constitution

the Constitution for the United States. Colorado River

could not have envisioned the burgeoning of modern

Water Conservation District v. United States, 424 U.S.

administrative

has

800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976).

interpreted “laws” under the Supremacy Clause to

The Supreme Court observed that "the presence of

embrace

administrative

federal-law issues must always be a major consideration

regulations. Fidelity Savings & Loan Ass'n. v. de la

weighing against surrender of federal jurisdiction.” When

Cuesta, 458 U.S. 141, 153, 73 L. Ed. 2d 664, 102 S. Ct.

applicable substantive law is federal, abstention is

3014 (1982) “Federal regulations have no less pre--

disfavored. Village of Westfield v. Welch's, 170 F.3d 116,

emptive effect than federal statutes.”

124 (2nd Cir. 1999). The Court of Appeal for the Second

both

procedure,

federal

the

Supreme

statutes

and

Court

Circuit Court of New York has fails to obey its own rules,

63

denial plaintiff of due-process, further abused its

Adamson v. California, 332 U.S. 46; In Alexander v.

discretion, committing extrinsic fraud, in violation of the

United States, 201 U.S. 117, 121 (1906) “In a certain

authority in Barrow v. Hunton, 99 U.S. (9 Otto) 80 (1878)

sense finality can be asserted of the orders under review;

and Gaines v. Fuentes, 92 U.S. (2 Otto) 10,an deprived

so, in a certain sense, finality can be asserted of any order

plaintiff of the opportunity to present his appeal to the

of a court.” In Cohens: the court held that: “We Judges

court; kept him ignorant of the facts, fraudulently

have no more right to decline the exercise of jurisdiction

prevented plaintiff from fully participating in the

which is given, than to usurp that which is not given. The

proceeding of appeal; preventing plaintiff from his day in

one or the other would be treason to the constitution”. See

court, on both cases Docket 06-5304-cv(L) and Docket

Cohens v. Virginia, 6 Wheat. (19 U.S.) 264, 404 (1821).

06-5321-cv (com). “It is a denial of due-process if an

13.

On November 15 2006, Plaintiff Pro se

agency fails to obey its own rule,” See, Burnet v. Brooks,

Robert Simon herein filed a Notice of Motion for

288 U.S. 378, 406; Equal Protection Clause of the

Enlargement time to file objection to the Magistrate Judge

Fourteenth Amendment mandates that all individuals

Boyle Orders dated May 30, 2006 and October 25, 2006,

similarly situated receive like treatment under the law, See

and

64

Stay

and

Temporary

Restraining

Order

and

Preliminary, with declaration support of said motion and

her the Judge Joanna Seybert, and by which she the

with a memorandum of law. Seeing that, irreparable ham

Judge forward to the United States Court of Appeals

is showing on the face of the motion at issue presented. At

for the Second Circuit Court of New York, and

this point, on October 31, 2006, Plaintiff Pro se Robert

transfer the case Docket 05-CV-4882, record to the

Simon herein, submitted an Notice of Appeal date

United States Court of Appeals for the Second Circuit

October 31, 2006, and Filed October 31, 2006, and to

Court of New York.

Judge Joanna Seybert for the United States District

14.

The Court of appeals abused its discretion

Court, Easter District of New York., involving

in disregarding the act of filing an appeal on both

Magistrate Judge Boyle Orders dated May 30, 2006

cases 06-5304-cv and 06-5321-cv, has jurisdictional

and October 25, 2006. Thereafter, On November 16,

implication, Griggs v. Provident Consumer., 459 U.S.

2006, Judge Joanna Seybert for the United States

56, 58,(1982), in general, filing of a notice of appeal

District Court, Easter District of New York, had

confers jurisdiction on the court of appeals and divests

Plaintiff Pro se Robert Simon Notice of Appeal date

the district court of control over those aspects of the

October 31, 2006, and Filed October 31, 2006, and to

case involved in the appeal.” Marrese v. American

65

Academy of Ortho. Surgeons, 470 US 373, 379

“if the decision 'ends the litigation [of that claim] on the

(1985); Moses H. Cone Memorial Hosp. V. Mercury

merits and leaves nothing for the court to do but execute

Constr. Corp., 460 U.S. 1, 9-10 (1983); Missouri, K.&

the judgment' entered on that claim,” See, Coopers &

T. R. Co. v. May, 194 U.S. 267, 270; Flast v. Cohen,

Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454,

392 U.S. 83, 131; Byars v. U.S., 273 U.S.28; Glidden

2457, 57 L.Ed.2d 351 (1978). As there is nothing left for

Co. v. Zdanok, 370 U.S. 530, 552-58.

the court to do here but execute its judgment, the first

15.

In

UNITED

STATES

PAROLE

claim is finally decided within the meaning of §1291.

COMMISSION ET AL. v. GERAGHTY, 445 U.S. 388,

16.

Judge Joanna Seybert for the United

at 399, the court held: “ Art. III justiciability is "not a

States District Court, Easter District of New York, issued

legal concept with a fixed content or susceptible of

a out a final order which state: “The application of

scientific verification." Poe v. Ullman, 367 U.S. 497,

Denise Dalton and Robert Simon for a temporary

508 (1961) (plurality opinion). "[The] justiciability

restraining order are DENIED. The court previously

doctrine [is] one of uncertain and shifting contours."

granted both applicants a 90 –day extension to oppose

Flast v. Cohen, 392 U.S. at 97. A claim is finally decided

the motions to dismiss. In light of applicants’ pro se

66

status,

the

Court

FINAL

has finished with the case. If it has, ending the lawsuit, the

extension. . . . . . . . . . . . This is the last and final

judgment can be appealed, for otherwise a plaintiff who

extension the applicants will be granted.” This part of

had received a favorable ruling but no relief would have to

Judge Joanna Seybert final order fall within the appeal-

ask the court of appeals to mandamus the district judge.

able collateral order under Cohen, which a district court

And so in Munson Transportation, Inc. v. Hajjar, 148 F.3d

order must (1) "conclusively determine the disputed

711, 714 (7th Cir. 1998), we concluded that the district

question," (2) "resolve an important issue completely

court 's order was final, despite not addressing all the

separate from the merits of the action," and (3) "be

claims before the court, because it contained language

effectively

final

"calculated to conclude all the claims before the district

judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463,

court" and indeed said "this case is terminated." Similarly,

468 (1978). In CHASE MANHATTAN MORTGAGE

Moreau v. Harris County, 158 F.3d 241, 244 (5th Cir.

CORP., v. JAMES E. MOORE, No. 05-2941, May 4,

1998), explains that a judgment is final when it is

2006, Decided, the court held that: “the test is not the

"couched in language calculated to conclude all claims

adequacy of the judgment but whether the district court

before [the district court]." The statement in Coopers &

unreviewable

grants

on

appeal

a

from

a

67

Lybrand v. Livesay, 437 U.S. 463, 467, (1978), quoting

Express Co., 108 U.S. 24, 28-29 (1883); In Crouch -v-

Catlin v. United States, 324 U.S. 229, 233, (1945).

National Association for Stock Car Auto Racing, 845 F.2d

17.

In Ex parte Bollman, 8 U.S. (Cranch) 75

397 (2d Cir. 1980, the court held that: “Under the

(1807), Chief Justice Marshall noted in principle, “Courts

Supremacy clause, of course, federal law is part of the law

which originate in the common law . . .; but Courts which

of every state and a valid source of reasoning, whether or

are created by written law, and whose Jurisdiction is

not applicable as a command.”

defined

by

Jurisdiction.”

written

Law,

Transcending

cannot that

transcend

Jurisdiction

that

18.

In Rivers v. Roadway Express, Inc., 511

would

U.S. 298, 312-13 (1994), the court stated that “[J]udicial

effectively be an invitation to anarchy. Moreover, the final

construction of a statute is an authoritative statement of

order doctrine, Whose historical origins can be found in

what the statute meant before as well as after the decision

the common law. See Catlin v. United States, 324 U.S.

of the case giving rise to that construction.” (emphasis

229, 233-34 (945); Cobbledick v. United States 309 U.S.

added); accord United States v. Mead Corp., 533 U.S.

323 (1940); Mclish v. Roff, 141 U.S. 66, 665, (1891); See,

218, 248-49 (Scalia, J., dissenting) and stated that: “I

also, St. Louis Iron Mountain and S. Ry. Co. . Southern

know of no case, in the entire history of the federal courts,

68

in which we have allowed a judicial interpretation of a

514 U.S. 35, 42, 131 L. Ed. 2d 60, 115 S. Ct. 1203 (1995)

statute to be set aside by an agency or have allowed a

(citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

lower court to render an interpretation of a statute subject

541, 546, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949)). This

to

OF

small category of decisions "includes only decisions that

CALIFORNIA, on behalf of the California Department of

are conclusive, that resolve important questions separate

Toxic Substances Control, v. WESTERN RESOURCES,

from the merits, and that are effectively unreviewable on

INC., Receiver of the Victor Muscat Testamentary Trusts,

appeal from the final judgment in the underlying action."

Intervening, 138 F.3d 772; the court stated: “The

Id. (citing Cohen, 337 U.S. at 546).

correction

by

an

agency.”

See,

STATE

Supreme Court has recognized that " 28 U.S.C. § 1291

19.

In JOHN W. BEHRENS, v. ROBERT

permits appeals not only from a final decision by

J. PELLETIER, 516 U.S. 299; 116 S. Ct 834; 133 L. Ed.

which a district court disassociates itself from a case,

2d 773, the court held that: “These requirements explain

but also from a small category of decisions that, although

why the courts have created the "collateral order"

they do not end the litigation, must nonetheless be

exception. The "effective unreviewability" requirement

considered 'final.'" Swint v. Chambers County Comm'n,

means that failure to review the order on appeal now may

69

cause a litigant permanent harm. The "conclusive

20.

In TERESA L. CUNNINGHAM, v.

determination" requirement means that appellate review

HAMILTON COUNTY, OHIO, 527 U.S. 198; 119 S.

now is likely needed to avoid that harm. The "separability"

Ct. 1915; 144 L. Ed. 2d 184; It is stated that: “The Court

requirement means that review now will not likely force

has interpreted the term "final decision" in 28 U.S.C.S. §

an appellate court to consider the same (or quite similar)

1291, to permit jurisdiction over appeals from a small

questions more than once. Johnson v. Jones, 515 U.S.

category of orders that do not terminate the litigation. That

304, 311, 132 L. Ed. 2d 238, 115 S. Ct. 2151 (1995).

small category includes only decisions that are conclusive,

Taken together, these requirements, as set forth in the

that resolve important questions separate from the merits,

Court's cases, see, e. g., ibid.; Midland Asphalt Corp. v.

and that are effectively unreviewable on appeal from the

United States, 489 U.S. 794, 799, 103 L. Ed. 2d 879, 109

final judgment in the underlying action. See also,

S. Ct. 1494 (1989); Gulfstream Aerospace Corp. v.

Midland Asphalt Corp. v. United States, 489 U.S. 794,

Mayacamas Corp., 485 U.S. 271, 276, 99 L. Ed. 2d 296,

798, 103 L. Ed. 2d 879, 109 S. Ct. 1494, this Court has

108 S. Ct. 1133 (1988).”

interpreted § 1291 to permit jurisdiction over appeals that meet the conditions of the collateral order doctrine.

70

21.

In Missouri, K.& T. R. Co. v. May, 194

objections are deemed waived. This is the last and

U.S. 267, 270, that: “It must be remembered that

final extension the applicants will be granted.” Judge

legislatures are ultimate guardians of the liberties and

Joanna Seybert, have made it clear that, even do she rule

welfare of the people in quite as great a degree as the

on the Magistrate’s orders, which denying Plaintiff full

courts”; also, Flast v. Cohen, 392 U.S. 83, 131; The Court

discovery, the issue would be moot, upon the facts that

has also stated that: “It is the duty of the courts to be

Judge have deem defendants 12 (b)(1) and 12(b)(6)

watchful for the constitutional rights of the Citizen, and

motions unopposed. It has long been established by the

against any stealthy encroachment thereon”. See Byars v.

United States Supreme Court that “[a]ppeals are

U.S.; 273 U.S.28; Glidden Co. v. Zdanok, 370 U.S. 530,

allowed from orders characterized as final under the

552-58. Now, the Judge Joanna Seybert, other part of her

[“collateral issue”] doctrine even though it may be

order stated: “. . . . . . . If applicants do not file

clear that they do not terminate the action.” 15A

opposition papers by DEC. 15, 2006 , the Court shall

Wright’s Federal Practice and Procedure §3911 at 329,

deem such motions as unopposed. If objections to the

(citing Cohen v. Beneficial Industrial Loan Corp., 337

Magistrate’s orders are not filed by Dec. 15, 2006, any

U.S. 541 (1949)). The United States Second Circuit Court

71

of Appeal has jurisdiction over this appeal under 28

appellate court to hear an otherwise nonappealable

U.S.C. § 1291 pursuant to the "collateral order" doctrine

judgment ‘if the order conclusively determine[s] the

of Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949).

disputed question, resolve[s] an

The "collateral order" doctrine applies here because the

completely separate from the merits of the action, and

Order (i) "conclusively determines" the Plaintiff Robert

is effectively unreviewable on appeal from a final

Simon right of access to pretrial depositions in this case,

judgment.’” Excimer, 292 F.3d at 138 (quoting Sierra

(ii) resolves an important issue totally separate from and

Rutile Ltd. v. Katz, 937 F.2d 743, 748 (2d Cir. 1991)).

collateral to the merits of the case, and (iii) will not be

22.

important issue

The Court restated the doctrine in

"effectively reviewable" after final judgment given that

Coopers & Lybrand v. Livesay: “To come within the

the issue raised by this appeal will become moot once the

“small class” of decision excepted from the final judgment

court rule on the defendants 12 (b)(1) and 12(b)(6)

rule by Cohen, the order must [1] conclusive determine

motions unopposed. The district court’s order is

the

reviewable as a collateral final order under 28 U.S.C. §

completely separate from the merits of the action, and [3]

1291. The collateral order doctrine “allows an

be effectively unreviewable on appeal from the final

72

disputed question, [2] resolve an important issue

judgment. See 437 U.S. 463, 468 (1978)(brackets

24.

“. . . disobedience to the Constitution on

inserted). See also Puerto Rico Aqueduct and Sewer

the part of all the participants and violates " the imperative

Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 144

of judicial integrity." Mapp v. Ohio, 367 U.S.643, at 657-

(1993); Johnson v. Jones, 515 U.S. 304, 310 (1995), See

660. “While this Court sits, it has the inescapable duty of

also 15A Wright Miller & Cooper, Federal Practice &

seeing that the mandates of the Constitution are obeyed”.

Procedure 2d (West 1992) Section 3911.

See Murphy: Hirabayashi v. United States, 320 U.S. 81,

23.

In

Watson

v.

Memphis.

375

U.S.

113.

526. ..."Disobedience or evasion of a Constitutional

25.

The Second Circuit Court of Appeal have

mandate may not be tolerated, even though such

knowingly, willfully, disobey its rules and statues. In U.S.

disobedience may... promote in some respects the best

v. Caper, 372 F. Supp 609 (1974), the court held: “It is a

interests of the public." See also Jackson v. Weeks. 378

denial of due-process if an agency fail to obey its own

U.S. 368, 387 n. 14; Weeks v. U.S.. 232 U.S. 383. In

rules.” “[A] court may .... not do that which the Rules

People v. Schmidt, 216 N.Y. 324, 340, the court held:

plainly forbid. Congress has the power to abrogate a lower

“Obedience to the law is itself a moral duty.”

court's inherent authority, .... a court ‘may not exercise its

73

inherent authority in a manner inconsistent with rule or

jurisdiction over the appeal from the denied final order

statute’.” Natural Gas Pipeline Company of America v.

under 28 U.S.C. § 1291.“Once jurisdiction is acquired, it

Energy Gathering, Inc., 2 F.3d 1397, 1407-08 (5th Cir.

continues throughout the same litigation.” See Michigan

1993) (citations omitted).

Trust Co. v. Ferry, 228 U.S. 346, 33 S.Ct. 550, 57 L.Ed.

26.

Ancillary case.

It is, of course, well

867 (1913).

established that "a premature appeal taken from an order

27.

Plaintiff/Appellant have timely filed an

which is not final but which is followed by an order that

Appeals within 30 days of the Court orders, on both cases

is final may be regarded as an appeal from the final order

Docket 06-5304-cv(L) and Docket 06-5321-cv (com), at

in the absence of a showing of prejudice to the other

issue herein. In U.S. v. Caper, 372 F.Supp 609 (1974), the

party." Richerson v. Jones, 551 F.2d 918, 922 (3d Cir.

court held: “It is a denial of due-process if an agency fails

1977) (emphasis in original); see also Batoff v. State Farm

to obey its own rules.” Judges/ Second Circuit court

Ins. Co., 977 F.2d 848, 851 n.5 (3d Cir. 1992); Cape May

Appeals of New York, have frequently stated that time

Greene, Inc. v. Warren, 698 F.2d 179, 185 (3d Cir. 1983).

limits for filing a notice of appeal are jurisdictional. See,

Consequently, as the denied order is a final, the court have

e.g., Budinich v. Becton Dickinson & Co., 486 U.S. 196,

74

203 (1988) (“[T]he taking of an appeal within the

from a non-final decision to operate as an effective notice

prescribed time is mandatory and jurisdictional....”);

of appeal from a decision that would be appealable upon

Coppedge v. United States, 369 U.S. 438, 442 (1962)

final judgment.

(“[A] timely notice of appeal must be filed in the District

28.

“The

United

States

Constitution

is

Court to confer jurisdiction upon the Court of Appeals

supreme over all the departments of the National

over the case.”) (footnote omitted); Cody, Inc. v. Town of

Government, and, to the extent of the powers delegated,

Woodbury, 179 F.3d 52, 56 (2d Cir. 1999); United States

over all who made themselves parties to it, States as well

v. Fitzgerald, 109 F.3d 1339, 1341-42 (8th Cir. 1997);

as persons; it is supreme over the people of the United

United States

J.R. Youngdale

States aggregately and in their separate sovereignties. It

Construction Co., 923 F.2d 146, 148 (9th Cir. 1991). A

constitutes a part of the law of each State, and is binding

notice of appeal filed after the court announces a decision

upon the people and authorities of the State.” See Dodge

or order—but before the entry of the judgment or order—

-v- Woolsey,18 How. 347; National Bank -v- Dearing, 91

is treated as filed on the date of and after the entry. Fed. R.

U.S. 35; Shreveport -v- Cole, 129 U.S. 43; Davis -v-

App. P. 4(a)(2) (2001). This rule allows notice of appeal

Burke, 179 U.S. 403; Cooper -v- Telfair, 4 Dall. 18.

use

of

Pippin

v.

75

FirsTier Mortgage Co. v.Investors Mortgage Ins. Co., 498

which shall appear to them to be unjust, nor any

U.S. 269, 276 (1991). The Second Circuit Court of

defense except such as he believe to be honestly

Appeal

permitting

debatable under the law of the land; he will employ

defendant State of New York Attorney General to file

for the purpose of maintaining the causes confided to

a frivolous motion to its Court, and the Second

him such means only as are consistent with truth and

Circuit Court of Appeal have knowingly, willfully,

honor, and will never seek to mislead the Judge or

and unlawfully permit defendant State of New York

jury by any artifice or false statement of fact or law;

Attorney General to violated its Oath to support the

they will maintain the confidence and preserve

Constitution; Which he sworn, he will support the

inviolate the secrets of his client, and will accept no

Constitution of the United States and the Constitution

compensation in connection with they business

of the States of New York; he will maintain the

except from him or with his knowledge and approval;

respect due to Courts of Justice and judicial officers;

he will abstain from all offensive personality, and

he will not counsel or maintain any suit or proceeding

advance no fact prejudicial to the honor or reputation

have

knowingly,

willfully,

76

of a party or witness, unless required by the justice of

TAYLOR'S EXECUTOR, 66 U.S. 603; 17 L. Ed. 191;

the cause with which he are Charged. He will never

(1861); Am. L. R., 604; 6 Op., 291; and New York

reject, from any consideration personal to him-self,

State Constitution Article XIII; and New York Public

the cause of the defenseless or oppressed, or delay

Service Law Section 9.

any mans cause for lucre or malice.

29.

So help me

Defendant State of New York Attorney

General had clearly engaged in an abuse of the judicial

GOD. See United States Constitution Article VI

process, had violated federal statute, rule, United States

Clauses 2,3, and People of the State of New York, v.

Constitution and ignore the Supreme Court precedent

Alonzo Snyder, 41 N.Y., 403; Bacharach v. La Grave, 1

authorities Code of Professional Responsibility, DR 7-102

Hun., 695; OWINGS v. NORWOOD'S LESSEE, 9 U.S.

[A] [1], [2]) and DR 7-106(b)(1) of the ABA Code of

344; 3 L. Ed. 120, (1809); HARRIET HACKLEY, v.

Professional Responsibility, as adopted by the New York

JOSEPH ADDISON BRADEN, 57 U.S. 635; 14 L. Ed.

State Bar Association, requires that in presenting a matter

1090; (1850); JAMES FOSTER vs. DAVID NEILSON,

to a tribunal, a lawyer shall disclose controlling legal

27 U.S. 253; 7 L. Ed. 415; (1829); CONWAY ET AL. vs.

authority known to the lawyer to be directly adverse to the

77

position of the client and which is not disclosed by

New York motion to dismiss the plaintiff/Appellant

opposing counsel. N.Y. Jud. Law Appendix, Code of

appeals docketed under 06-5304-cv and sua sponte

Professional Responsibility DR 7-106(b)(1) (McKinney

dismiss the appeal docketed under 06-5321-cv, which fall

1992). Courts have held that an attorney's failure to

within the statute 28 U.S.C Section 1291, and

apprise the court of authority contrary to his or her client's

authority of Coopers & Lybrand v. Livesay, 437 U.S. 463,

position can give rise to sanctions. See Katris v.

467, and of Cohen v. Beneficial Indus. Loan Corp., 337

Immigration and Naturalization Service, 562 F.2d 866,

U.S. 541, 546. The importance of sanctions to deter and

869-70 (2d Cir. 1977); Boritzer v. Blum, No. 80- CV-480,

punish conduct that defiles the integrity of the judicial

1985 WL 25022 at 5-6 (S.D.N.Y. April 2, 1985); see also

process and the wide range of sanctioning devices

Matter of Hendrix, 986 F.2d 195, 200-01 (7th Cir. 1993);

available to a court has been the subject of important

Piambino v. Bailey, 757 F.2d 1112, 1131 n. 44 (11th Cir.

decisions by the U.S. Supreme Court and by this Circuit.

1985). Judges/ Second Circuit court Appeals of New

Among this Circuit’s decisions, which incorporate those

York, have usurp their authority/power, abuse their

of the Supreme Court and discuss the standards governing

Discretion, by granting the Defendant-Appellant State of

imposition of sanctions, are Eastway Construction Corp.

78

the

v. New York, 762 F.2d 243, 253 (2d Cir. 1985); Oliveri v.

the will of the Law.”; see also, Sheebonnet, Ltd. v. Am.

Thompson, 803 F.2d 1265 (2d Cir. 1986); Greenberg v.

Express Bank, Ltd., 17 F.3d 46, 48 (2d Cir1994), and Moe

Hilton Int’l Co., 870 F.2d 926 (2d Cir. 1989); McMahon

v. Dinkins, 635 F.2d 1045, 1048 n7 (2d Cir. 1980); The

v. Shearson/American Exp., Inc., 896 F.2d 17 (2d Cir.

court has stated: "Under the 'discretion' vested in him, no

1990).

judge has authority to disregard or even to impair any 30.

In Osborn v. The Bank of the United

acknowledged and established right of a party by its

States, 22 7U.S. 738, 866 (1824), the court held that

exercise, and if he does so, it would seem to follow as a

Judges: “When they are said to exercise a discretion, it is

necessary consequence that he abuses that discretion" see

mere legal discretion a discretion to be exercised in

Lent v. Tilson, 140 U.S. 316, 35 L.ed. 419, 11 Sup. Ct.

discovering the course prescribed by law; and when that is

825; United States Smelting Co. v. Parry, 166 Fed. 407.

discovered, it is the duty of the Court to follow it. Judicial

31.

In King v. West Virginia, 216 U.S. 92,

power is never exercised for the purpose of giving effect

100, 54 L. Ed. 396, 30 S. Ct. 225 (1910), A federal statute,

to the will of the judge; always for the purpose of giving

on the other hand, is an assertion of its constitutional

effect to the will of the legislature; or, in other words, to

power by Congress and is entitled to respect as the

79

supreme law of the land. See, 28 U.S.C. § 1291, when an

demonstrably wrong, a motion to recall mandate might be

intervening statute conflicts with the mandate of an

entertained." We note that a supervening Supreme Court

appellate court, the statute prevails. In Banco Nacional de

decision has led to recall of mandate of an appellate court

Cuba v. Farr, 383 F.2d 166, 178 (2d Cir. 1967), cert.

decision even where the substantive rights of the parties

denied, 390 U.S. 956, 19 L. Ed. 2d 1151, 88 S. Ct. 1038

were involved. Recall the Court's own reasoning that

(1968), the court recognized that courts in applying the

inherent powers are those "powers 'which cannot be

law of the case rule have held that a lower court is not

dispensed with in a Court, because they are necessary to

bound to follow the mandate of an appellate court if the

the exercise of all others.'" Chambers, 501 U.S. at 43

mandate is, in the interim, affected by an authority

(quoting United States v. Hudson & Goodwin, 11 U.S. (7

superior to the court issuing the mandate . . . . In Legate v.

Cranch) 32, 34 (1812)).

Maloney, 348 F.2d 164, 166 (1st Cir. 1965), we also

32.

An order that satisfies the requirements of

refused to recall mandate, but said, "If a situation arose,

the collateral order doctrine is appealable as of right. Such

such as a subsequent decision by the Supreme Court,

an order is deemed to be a “final decision” over which the

which

court of appeals “shall have jurisdiction” under 28 U.S.C.

showed

that

our

original

judgment

was

80

§ 1291 (emphasis added); see also Mitchell v. Forsyth,

526 (1985), a litigant invoking the collateral order

472 U.S. 511, 526 (1985). Thus, unlike other sources of

doctrine must simply file a notice of appeal. FED. R. APP.

interlocutory appellate jurisdiction (such as section

P. 3. The notice of appeal states only the parties who are

1292(b)), neither the district court nor the appellate court

appealing, the judgment or order being appealed, and the

have discretion to prevent or decline review of

court to which the appeal is being taken. FED. R. APP. P.

interlocutory rulings that qualify under the collateral

3(c)(1). The notice of appeal does not even need to specify

orders doctrine. The judge of this court took an oath to

that the collateral order doctrine is the basis for appellate

uphold and support the constitution of New York, and his

jurisdiction. Unless the party opposing the appeal files a

blatant disregard of that obligation can only result in an

preliminary motion to dismiss the appeal for lack of

act of treason”; “An officer who acts in violation of the

jurisdiction, See, Second Circuit Court of New York,

Constitution ceases to represent the government.” See

Local Rule 27, (allowing dispositive motions to be filed

Brookfield Const. Co, v. Stewart, 284 F.Supp. 94.

within 14 days of an appeal being docketed and deferring

33.

The collateral order doctrine provides an

merits-briefing until motion is decided), the appeal will

appeal of right, See, Mitchell v. Forsyth, 472 U.S. 511,

proceed to full briefing on the merits as well as

81

jurisdiction, and the jurisdictional issue will not be

Federal Civil Appeals in Context, 47 LAW & CONTEMP.

resolved until full briefing is complete. A notice of appeal

PROBS. 157, 157 (1984).

must be filed within the time limits set by Federal Rule of

34.

Moreover, section 1291 provides for an

Appellate Procedure 4; for civil appeals, the deadline is

appeal as of right, a party relying on the collateral order

typically 30 days after the district court enters the order

doctrine needs to file only a notice of appeal under

being appealed. United States v. Moats, 961 F.2d 1198,

Appellate Rule 3. See, Mitchell v. Forsyth, 472 U.S. 511,

1203 (5th Cir. 1992) (“An appeal taken under the

526 (1985). A notice of appeal, however, is not required

collateral order doctrine is subject to all the usual

even to state what the basis for appellate jurisdiction is.

appellate rules and time periods, including Rule 4 of the

FED. R. APP. P. 3(c)(1). And it is certainly not a

Federal Rules of Appellate Procedure.”). Under Appellate

procedural vehicle for convincing the appellate court that

Rule 4, the deadline in civil cases is 30 days after entry of

it should exercise its discretion to hear a particular

the judgment or order, unless the United States is a party,

interlocutory appeal. Ordinarily, collateral order doctrine

in which case the deadline is 60 days. FED. R. APP. P.

appeals proceed to full briefing, not only on the issue of

4(a)(1); see, Edward H. Cooper, Timing as Jurisdiction:

appellate jurisdiction but also on the substantive merits of

82

the appeal. See FED. R. APP. P. 28(a) (requiring the

Martineau, Defining Finality and Appealability by Court

appellant to present in its brief a “jurisdictional statement”

Rule: Right Problem, Wrong Solution, 54 U. PITT. L.

as well as a “statement of the issues,” “statement of the

REV. 717, 738 (1993). Legislation is not open to the

case,” “statement of facts,” and “argument”); FED. R.

charge of depriving one of his rights without due process

APP. P. 28(b) (requiring the appellee to present the same

of law, if it be general in its operation upon the subjects to

in its brief, unless it is satisfied with the appellant’s

which it relates, and is enforceable in the usual mode

statements). Thus, the applicability of the collateral order

established in the administration of government with

doctrine is usually not resolved until full briefing is

respect to

complete. If, however, the applicability of the collateral

proceedings adopted to the nature of the case. Dent v.

order doctrine depends in many cases on the appellate

West Virgina, 129 U.S. 114, distinguishing Cummings v.

court’s discretionary (and hence unpredictable) balancing

Missouri, 4 Wall. 277, and Ex parte Garland, 4 Wall.

of concerns, this procedure creates a risk that substantial

333. Absolute discretion, like corruption, marks the

energy and expense will be incurred briefing, arguing, and

beginning of the end of liberty. Douglas: New York v.

considering the merits of an appeal that will ultimately be

United States, 342 U.S. 882, 884. Absolute discretion is a

dismissed for lack of jurisdiction. See, Robert J.

83

kindred matters;

that is, by process or

ruthless master. It is more destructive of freedom than any

litigant

of man’s other inventions.

Douglas: United States v.

governmental action of a sort that, if taken by a private

Wunderlich, 342 U.S. 98, 101. Discretion is never without

person, would create a right of action cognizable by the

limits. Harlan: System Fed. v. Wright, 364 U.S. 642, 648.

courts. Or standing may be based on an interest created by

35.

ordinarily

has

standing

to

challenge

a

An "injury" occurs for purposes of

the Constitution or a statute." Joint Anti-Fascist Refugee

standing whenever the defendant invades a "legally

Committee v. McGrath, 341 U.S. 123, 152 (1951)

cognizable interest." See Lujan v. Defenders of Wildlife,

(concurring opinion) (citations omitted). In identifying the

504 U.S. 555, 560 (1992). The "injury required by

types of injuries that might be recognized in private law

Art[icle] III may exist solely by virtue of statutes creating

actions as a basis for suits against the Government, Justice

legal rights, the invasion of which creates standing." Id. at

Frankfurter felt free to draw on principles of "common

578; accord Public Citizen v. United States Dep't of

law." Id., at 152-153, 157-160.

Justice, 491 U.S. 440, 449 (1989). 36.

37.

“Case or controversy” clause of Article III

Justice Frankfurter identified two sources

of the Constitution from the jurisdiction of the federal

to assist in the definitional inquiry concerning injury: "A

courts. This and other federal courts have repeatedly held

84

that individual litigants, acting as private attorneys-

38.

The "case and controversy" limitation of

general, may have standing as "representatives of the

Art. III overrides no other provision of the Constitution.

public interest." Scripps-Howard Radio v. Comm'n, 316

When the Constitution makes it clear that a particular

U.S. 4, 14 . See also Commission v. Sanders Radio

person is to be protected from a particular form of

Station, 309 U.S. 470, 477 ; Associated Industries v.

government action, then that person has a "right" to be

Ickes, 134 F.2d 694; Reade v. Ewing, 205 F.2d 630;

free of that action; when that right is infringed, then there

Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608;

is injury, and a personal stake, within the meaning of Art.

Office of Communication of United Church of Christ v.

III. To construe that Article to deny standing "`to the class

FCC, 123 U.S. App. D.C. 328, 359 F.2d 994. Compare

for whose sake [a] constitutional protection is given,'"

Oklahoma v. Civil Service Comm'n, 330 U.S. 127, 137

Jones v. United States, 362 U.S. 257, 261,(1960), quoting

-139. And see, on actions qui tam, Marvin v. Trout, 199

New York ex rel. Hatch v. Reardon, 204 u.s. 152, 160,

U.S. 212, 225 ; United States ex rel. Marcus v. Hess, 317

(1907), simply turns the Constitution on its head. Article

U.S. 537, 546.

III was designed to provide a hospitable forum in which persons enjoying rights under the Constitution could assert

85

those rights. How are we to discern whether a particular

rights." 1 Annals of Cong. 439 (1789). See West Virginia

person is to be afforded a right of action in the courts. The

Bd. of Education v. Barnette, 319 U.S. 624, 638 (1943).

Framers did not, of course, employ the modern vocabulary

39.

Liberty is always at stake when one or

of standing. But this much is clear: The drafters of the Bill

more of the branches seek to transgress the separation of

of Rights surely intended that the particular beneficiaries

powers. Separation of powers was designed to implement

of their legacy should enjoy rights legally enforceable in

a fundamental insight: concentration of power in the hands

courts of law. As James Madison noted, if a bill of rights

of a single branch is a threat to liberty. The Federalist

were "incorporated into the Constitution, independent

states

tribunals of justice will consider themselves in a peculiar

accumulation of all powers, legislative, executive, and

manner the guardians of those rights; they will be an

judiciary, in the same hands . . . may justly be pronounced

impenetrable bulwark against every assumption of power

the very definition of tyranny." The Federalist No. 47, p.

in the Legislative or Executive; they will be naturally led

301 (C. Rossiter ed., 1961). So convinced were the

to resist every encroachment upon rights expressly

Framers that liberty of the person inheres in structure that

stipulated for in the Constitution by the declaration of

at first they did not consider a Bill of Rights necessary.

86

the

axiom

in

these

explicit

terms:

"The

The Federalist No. 84, pp. 513, 515; G. Wood, The

170 (1997) (standing must exist at commencement of

Creation of the American Republic 1776-1787, pp. 536-

litigation) (citing United States Parole Comm’n v.

543 (1969). It was at Madison's insistence that the First

Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d

Congress enacted the Bill of Rights. R. Goldwin, From

479 (1980)); White v. Lee, supra, at 1243 (standing

Parchment to Power 75-153 (1997). It would be a grave

evaluated as of facts extant at commencement of

mistake, however, to think a Bill of Rights in Madison's

litigation); Steel Co. v. Citizens for a Better Environment,

scheme then or in sound constitutional theory now renders

523 U.S. 83, 118 S. Ct. 1003, 1012, 140 L.Ed.2d 210

separation of powers of lesser importance. See Amar, The

(1998) (requirement that jurisdiction be established as a

Bill of Rights as a Constitution, 100 Yale L. J. 1131, 1132

threshold matter "spring[s] from the nature and limits of

(1991).

the judicial power of the United States" and is "inflexible 40.

Standing is an absolute jurisdictional

and without exception”); Friends of the Earth v. Laid law

requirement that cannot be waived or ignored on grounds

Environmental Services Inc., 528 US 167, 191, 120 S.Ct.

of convenience. See e.g. Arizonans for Official English v.

693, 145 L.Ed.2d 610 (2000) (unlike mootness, standing

Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d

requirement admits of no exception: if a plaintiff lacks

87

standing at the commencement of an action, other

plaintiff went out and performed acts that might have

considerations cannot validate exercise of jurisdiction); Id

given him standing had they performed pre-filing).

at 213 (because the requirement of a case or controversy

41.

W1ere a ... system clearly and palpably

derives from the Constitution, it cannot be ignored when

violates the fundamental law, that law will be held invalid.

inconvenient); Paradise Creations Inc. v. UV Sales, Inc.,

Bridge Company v. Henderson City, 173 U.S. 592; King

supra at 1308, 1309-1310 (jurisdiction of the court

v. Mullins,

depends on the state of things at the time action brought--

Pipe Co., 184 U.S. 540; San Diego Land & Town Co., v.

plaintiff’s post filing actions cannot retroactively confer

National City, 174 U.S. 754; Florida Central & c. R. R.

standing); Steger v. Franco, Inc., supra at 892-893

Co,

(standing is determined as of the lawsuit’s commencement

Co., v. Evans, 111 Fed. Rep. 76.

—court reviewing standing must consider facts as they

171 U.S. 404; Connolly v. Union Sewer

v. Reyonds, 183 U.S. 479;

42.

Central Pacific R.R.

1The legislature only can make laws; the

existed at that time—complaint was properly dismissed

courts construe the laws; the executive enforces the laws.

notwithstanding fact that after complaint was filed

This is the general statement, because the Constitution divides the American government into three great

88

departments, Legislative, Executive, and Judicial, in order

it affects them without due process, in violation of state

to lodge great powers-dangerous powers, if improperly

constitutions and the Fourteenth Amendment. The

used-in different hands, and thereby lessen the danger of

difference between the departments undoubtedly is that

their misuse, and to preserve liberty. This is one of the

the legislature makes, the executive executes, and the

basic principles of American republican government

judiciary construes the laws, said Chief-Justice Marshall

found in all our constitutions. The line of demarkation

in Wayman -v- Southard, 10 Wheat. 46; and likewise

between the respective functions of these several

Chief Justice Gibson. See also, Greenough -v- Greenough,

departments is in theory, if not in practice, very marked.

11 Pa. St. 494; In the Virginia Supreme Court is a very

The fathers of the republic looked to this as the polar star

luminous discussion in able opinions by Judges Christian,

and sure guaranty of governmental freedom. Therefore, if

Anderson, Staples, Moncure and Joynes upon the

an act of a state legislature is not in its nature purely

distinction between the different departments and their

legislative, but is is in its nature judicial, the legislature

functions. Also see, Griffin -v- Cunningham, 20 Grat. 31;

has usurped judicial power, and under state constitutions

Judge Christian said : No particular definition of judicial

that act would be void, and if it affect liberty or property,

power is given in the constitution; and, considering the

89

general nature of the instrument, none was to be expected.

appeal, or continuance, or declares a past contract or

But the terms used are still sufficient to designate, with

conveyance invalid, or pass any act operative upon liberty,

clearness, that department which should interpret and

life or property, which is judicial in its essence, it is

administer laws from that department which should make

contrary to the due process demand of the Constitution,

laws. The former decides upon the legality of claims and

and void. See Griffin -v- Cunningham, 20 Grat. 31, 51;

conduct; the latter makes rules upon which those decisions

Wheeling Bridge Case, 18 How. 421; Linkons -v- Shafer,

should be founded. The law is applied by the one, and is

28 Grat. 775; Ratcliffe -v- Anderson, 31 Grat. 105;

made by the other. Cooley s Const. Limitations, 92, To

McCullough -v- Virginia, 172 U.S. 102; kilburn -v-

declare what the law is, or has been, is judicial power; to

Thompson, 103 U.S. 168.

declare what the law shall be, is legislative. See Cooley,

43.

The Second Circuit court Appeals of

Con. Lim. 87, 95, 174; Sedgw. Stat. & Const. L. 138, 146.

New York have knowingly, willfully, unlawfully absolute

Under these principles, if a legislature undertakes to

abuse their discretion by issuing out a wrong mandate

nullify a judgment, reopen a case by granting a new trial,

under on both cases Docket 06-5304-cv(L) and Docket

or directing or authorizing a court to do so, or grants an

06-5321-cv (com), in Luminous Unit Co. v. Freeman-

90

Sweet Co., 3 F.2d 577 (7thCir. 1924). See, e.g., Neal v.

this reasoning, "while power to act on its mandate after the

Brown, 980 F.2d 747, 749 n.1 (D.C. Cir. 1992) (per

term expires survives to protect the integrity of the court's

curiam); Midway Mfg. Co. v. Kruckenberg, 720 F.2d 653,

own processes, it has not been held to survive for the

654 (11th Cir. 1983) (per curiam). "Even after a case

convenience of litigants." Briggs v. Pa. R.R., 334 U.S.

becomes moot, ... courts of appeals always have

304, 306 (1948) (citation omitted). The Supreme Court

jurisdiction to determine mootness and recall their

has also made it clear that this broad discretion is

mandates." Greater Boston Television Corp. v. FCC, 463

reviewed deferentially, for abuse of discretion. See

F.2d 268, 276-79 (D.C. Cir. 1971) (recall mandate to

Wilton, 515 U.S. at 289; Brillhart v. Excess Ins. Co., 316

prevent injustice). Powers v. Bethlehem Steel Corp., 483

U.S. 491, 494–95 (1942); see also.

F.2d 963, 964 (1st Cir. 1973) (citing Greater Boston

abuses its discretion if it bases its ruling on a mistaken

Television Corp. v. FCC, 463 F.2d 268, 276-77 (D.C. Cir.

application of the law or a clearly erroneous finding of

1971)); see also Patterson v. Crabb, 904 F.2d 1179, 1180

fact.” United States v. Couto, 311 F.3d 179, 185 (2d Cir.

(7th Cir. 1990) (citing cases applying the supervisory

2002) (quoting Milanese v. Rust-Oleum Corp., 244 F.3d

power in "exceptional circumstances"). Congruent with

104, 110 (2d Cir.2001)). In Brown -v- Allen 344 U.S.

91

“A district court

443, 496, (1953), the court held: “Discretion without a criterion

for

its

exercise

is

authorization

45.

of

INSIGNIA

RESIDENTIAL GROUP AND LOCAL 32B-32J, . 00

arbitrariness.” 44.

In WALEED S. BEY, v.

Civ. 4823 (JSR)(KNF) 2000 U.S. Dist. LEXIS 16605, Plaintiff-petition Robert Simon, has

the court held that: “ When an application is made for

filed new notice of appeal on August 24, 2007,

the appointment of counsel by an indigent civil litigant,

involving docket # 07-3716, said order is related to

the following criteria are to be applied by the court in

docket 05-CV-4882, docket cases 06-5304-cv and

determining whether to grant the application: (1) the

docket case 06-5321-cv which the Second Circuit Court

merits of the party's claim(s); (2) the party's ability to pay;

of Appeal will dismiss said appeals prior to full

(3) the party's effort to obtain a lawyer; (4) the availability

briefing on the merits as well as jurisdiction FED. R.

of a lawyer; and (5) the party's ability to gather and use

APP. P. 28(a) (requiring the appellant to present in its

the relevant facts in the prosecution of the action. See

brief a “jurisdictional statement” as well as a “statement of

Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir.

the issues,” “statement of the case,” “statement of facts,”

1989). With respect to the merits of a plaintiff's claim(s),

and “argument”).

it must appear to the Court, "from the face of the

92

pleadings," (see Stewart v. McMickens, 677 F. Supp. 226,

authority of Adkins v. DuPont Co., 335 U.S. 331, 339-40

228 [S.D.N.Y. 1988]), that the claim(s) asserted by the

(1948), by submitting a Financial Affidavit, the Court of

plaintiff "may have merit," (see Vargas v. City of New

Appeal for the Second Circuit Court of New York have

York, 1999 U.S. Dist. LEXIS 10406, No. 97 Civ. 8426,

violated Plaintiff First Amendment, Equal Access to the

1999 WL 486926, at 2 [S.D.N.Y. July 9, 1999]), or that

Court,

the

of

Amendment to the Constitution for United States for

success . . . ." See Hodge v. Police Officers, 802 F.2d 58,

America, of Equal Protection of the laws, Right to Due

60-61 (2d Cir. 1986).

Process and proceeding Due Process and its Statutory

plaintiff

46.

"appears

to

have

some

chance

Fifth

and

Fourteenth

Amendment,

Ninth

In Bragger v. Trinity Capital Enter. Corp.,

Rights, 28 U.S.C. Section 1915, 42 U.S.C. Section 1988,

30 F.3d 14, 1994 (2d Cir. N.Y. 1994), the court held:

42 U.S.C. Section 1983, on both cases Docket 06-5304-

“How mootness came about must be examined before an

cv(L) and Docket 06-5321-cv (com), plaintiff have a

appellate court exercises its discretion.” Plaintiff is a

Fourteenth Amendment and Four Amendment Privileges,

Black minority Indigents whom have come within the

on both cases Docket 06-5304-cv(L) and Docket 06-5321-

terms of the statute 28 U.S.C. Section 1915, and the

cv (com), not to go before the full En Banc Court and

93

submit a petition

for Rehearing en banc, without an

Bellotti, 435 U.S. 765, 774, 55 L. Ed. 2d 707, 98 S. Ct.

Attorney representing plaintiff, the Court of Appeal for

1407 (1978); Southern Pac. Terminal Co. v. The

the Second Circuit Court of New York abused its

Interstate Commerce Commission, 219 U.S. 498, 515, 55

discretion, when it consider plaintiff first motion on both

L. Ed. 310, 31 S. Ct. 279 (1911); Valley Construction Co.

cases Docket 06-5304-cv(L) and Docket 06-5321-cv

v. Marsh, 714 F.2d 26, 28 (5th Cir. 1983). In Board of

(com), for Assignment of Counsel/Attorney as moot, then

Educ. Of City of New York v. City-Wide Committee for

move, denied said “motion and stated that the motion will

Integration, 342 F.2d 284, 285-286, C.A.2d. (1965), The

also be deem as a motion to reconsider.”

court also finds that the issue is not moot. See DeFunis v.

47.

A case becomes moot "when the issues

Odegaard, 416 U.S. 312, 318, 40 L. Ed. 2d 164, 94 S. Ct.

presented are no longer 'live' or the parties lack a legally

1704 (1974) (cessation of practices complained of could

cognizable interest in the outcome." Murphy v. Hunt, 455

make case moot only if it could be said with assurance

U.S. 478, 481, 71 L. Ed. 2d 353, 102 S. Ct. 1181 (1982).

that there is no reasonable expectation that wrong will be

See, e.g. Roe v. Wade, 410 U.S. 113, 125, 35 L. Ed. 2d

repeated); see also City of Lakewood, Ohio v. Plainview

147, 93 S. Ct. 705 (1973); In First National Bank v.

94

Dealership, 486 U.S. 750, 100 L. Ed. 2d 771, 108 S. Ct.

authority which state that: “a pronouncement amounts to a

2138 (1988).

final judgment where it "clearly evidences the judge's REASONS RELIED ON FOR

intention that it shall be his final act in the case.” See,

ALLOWANCE OF THE WRITS 1.

United States v. F. & M. Schaefer Brewing Co., 356

The United States court of appeals has so

U.S. 227, 232 (1958) and FirsTier Mortgage Co. v.

far departed from the accepted and usual course of judicial

Investors Mortgage Ins. Co., 498 U.S. 269, 276 (1991),

proceedings, sanctioned such a departure by a lower court,

herein are continuing daily, and are causing grievous harm

as to call for an exercise of this Court’s supervisory

to numerous litigants, including Plaintiff/Petitioner herein,

power. Plaintiff/Petitioner has no adequate remedy in the

and the harm caused is not compensable in damages as it

ordinary course of law, other than the relief sought in this

deprives litigants of the fundamental right to be heard. The

petition, in that there is no other means to challenge the

continued constitutional violations by The Second Circuit

validity of Circuit. The violations of the United States

court Appeals of New York, are causing irreparable

Constitution by the Second Circuit court Appeals of New

damage to the operation of our system of law and to the

York, ignoring the United States Supreme Court precedent

body politic that relies on our courts of law to dispense

95

justice fairly, equally, and uniformly to all litigants. The

consistently, and uniformly applied under the doctrine of

people cannot know the manner in which their enacted

stare decisis. In Screws vs. United States, 325 U.S. 91, 65

laws are being applied if they are unaware of the manner

S. Ct 1031, 89 L.Ed 1495, the court held: “He who defiles

in which the courts of the circuit are enforcing those laws.

a decision interpreting the constitution knows precisely

By ignoring the United States Supreme Court precedent

what he is doing. If sane, he hardly may be heard to say

authority, failing to publish all dispositions and by failing

that he knew not what he did. Of course, willful conduct

to give each disposition precedential value, the Second

cannot be made definite that which is not defined. But

Circuit court Appeals of New York, sever the mechanism

willful violators of

by which the public cannot monitor the application of law.

have been defined, certainly are in no position to say that

It is essential in preserving our democracy and our

they had no adequate advance notice that they would be

representative form of government that the separation of

visited with punishment. When they act willfully in the

powers be maintained and that the courts of this circuit

sense to which we use the word, they act in open defiance

uphold the right of the people to have justice by the

or reckless disregard of constitutional requirement ...” in

application of known laws that are fairly, equally,

Wein v. New York , 39 N.Y.2d 136, “The State

96

Constitutional requirements, which

Constitution is the fundamental and paramount law of this

2.

In re Quarles 158 U.S. 532 (1895), the

State. The courts cannot close their eyes to the

court held: "the people have the right to inform the United

Constitution and see only the acts and doings of the

States authorities of violation of its laws." In U.S. -v-

Legislature. (See Marbury v. Madison, 1 Cranch [5 U.S.]

Dunnington, 146 U.S. 351, the court held: “The Federal

137, 178.) Otherwise, the Constitution would offer but a

courts are in no sense agencies of the Federal

frail protection and citizens would "be at the mercy of

Government, and the Federal Government can not be held

ingenious efforts to circumvent its object and to defeat its

liable for their errors.” “The law is the command of the

commands.” (People ex rel. Burby v Howland, 155 N.Y.

government, and it must be ascertainable in some form if

270, 281) Normally as a co-equal branch of government

it is to be enforced at all.” See Hand, Learned, in Dillard,

the

the

Irving, The Spirit of Liberty (New York: Alfred A. Knopf,

pronouncement of the State’s highest court in Saratoga

1960). P. 104, furthermore, the relief sought is available,

County Chamber of Commerce v. Pataki, 100N.Y.2d 801,

and there is an adequate remedy, by way of appeal to the

798 N.E.2d 1047, 766 N.Y.S.2d 654 (N.Y. 06/12/2003)

Court of Appeals for the second Circuit, and writ of

voluntarily.

Certiorari to this Court. However, the Court of Appeals

Governor

should

have

complied

with

97

has dismissed petitioner’s appeal before it is heard,

The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897).

claiming that it has discretionary power to do so.

28 U.S.C. § 1651(a). The Supreme Court has held that

Petitioner, therefore, has no recourse to obtain review of

use of this statutory power extends to "`those cases which

the District Court’s final order other than by application

are within [a court's] appellate jurisdiction although no

for issuance by this Court of writ of prohibition and writ

appeal has been perfected.'" FTC v. Dean Foods Co., 384

mandamus to the Court of Appeals to entertain petitioner’s

U.S. 597, 603 (1966) (quoting Roche v. Evaporated Milk

appeal and, in the event of an unfavorable decision, a

Ass'n, 319 U.S. 21, 25 (1943)). See Arrow Transp. Co. v.

subsequent application to this Court for writ of certiorari.

Southern Ry., 372 U.S. 658, 671 n.22 (1963); In United

The Supreme Court and all courts established by Act of

Mine Workers, 330 U.S. 385, the court held: “No right is

Congress may issue all writs necessary or appropriate in

absolute. Nor is any power, governmental or other, in our

aid of their respective jurisdictions and agreeable to the

system. . . . [U]nder “a government of laws and not of

usages and principles of law. “It is revolting to have no

men” such as we possess, power must be exercised

better reason for a rule of law than that . . . it was laid

according to law; and government, including the courts, as

down in the time of Henry IV.” Oliver Wendell Holmes,

well as the governed, must move within its limitation.”

98

3. When a federal court has jurisdiction over an

York Tel. Co., 434 U.S. 159, 174 (1977)(citation omitted).

action, "the All-Writs Act grants it ancillary jurisdiction to

See also Sprint Spectrum L.P. v. Mills, 283 F.3d 404, 413-

issue writs' necessary or appropriate in aid of’ that

14 (2d Cir. 2002); United States. v.Int'l Broth. of

jurisdiction." Baldwin-United, 770 F.2d at 335. See also

Teamsters, 266 F.3d 45, 49-50 (2d Cir. 2001). Consistent

Covanta Onondaga Ltd. v. Onondaga County Resource

with these principles, the Anti-Injunction Act works “to

Recovery Agency, 318 F.3d 392, 396(2d Cir. 2003). That

prevent needless friction between state and federal

includes the power to issue writs affecting third parties.

courts.” Oklahoma Packing Co. v. Oklahoma Gas & Elec.

The power conferred by the Act extends, under

Co., 309 U.S. 4, 9 (1940). Because these principles

appropriate circumstances, to persons who, though not

emanate from our very system of government, the

parties to the original action or engaged in wrongdoing,

exceptions provided within the Anti-Injunction Act to its

are in a position to frustrate the implementation of a court

prohibition are construed narrowly. Although seemingly

order or the proper administration of justice, and

broad, the phrase “necessary in aid of jurisdiction” should

encompasses even those who have not taken any

be understood to imply “something similar to the concept

affirmative action to hinder justice. United States v. New

of injunctions to ‘protect or effectuate’ judgments.”

99

Atlantic, 398 U.S. at 295. An injunction is necessary in aid

Court contrasted the power of a lower federal court to

of a court’s jurisdiction only if “some federal injunctive

issue a writ affecting state court proceedings in the context

relief may be necessary to prevent a state court from so

of an in rem action as compared to an in personam action.

interfering with a federal court’s consideration or

It noted that, if a federal court is the first to acquire

disposition of a case as to seriously impair the federal

jurisdiction over the subject matter of the case, “it may

court’s flexibility and authority to decide that case.” Id.

enjoin the parties from proceeding in a state court of

While the Anti-Injunction Act presents significant

concurrent jurisdiction where the effect of the action

impediments to enjoining a state court in the context of

would be to defeat or impair the jurisdiction of the federal

ordinary litigation, its exception permitting injunctions

court.” Id. at 229. In contrast, where the issue is a question

“where necessary in aid of jurisdiction” is more readily

of personal liability, and does not involve the “possession

met in the context of in rem actions. Vendo Co. v. Lektro-

or control of a thing”, each court “is free to proceed in its

Vend Corp., 433 U.S. 623, 641 (1977); Toucey v. New

own way and in its own time, without reference to the

York Life Ins. Co., 314 U.S. 118, 135(1941). In Kline v.

proceedings in the other court.” Id. at 230.

Burke Constr. Co., 260 U.S. 226 (1922), the Supreme

100

4. Article III establishes a "judicial department" with

extraordinary situations." Gulfstream Aerospace Corp. v.

the "province and duty . . . to say what the law is" in

Mayacamas Corp., 485 U.S. 271, 289 (1988) (citing Kerr

particular cases and controversies. Marbury v. Madison, 1

v. United States Dist. Court, 426 U.S. 394, 402 (1976));

Cranch 137, 177 (1803). The record of history shows that

Compare Northern Pipeline Construction Co. v Marathon

the Framers crafted this charter of the judicial department

Pipe Line Co., 458 US 50, 69-70 n 23 (1982) (plurality

with an expressed understanding that it gives the Federal

opinion) and, see Richard H. Fallon, Jr., Of Legislative

Judiciary the power, not merely to rule on cases, but to

Courts, Administrative Agencies, and Article III, 101

decide them, subject to review only by superior courts in

Harv L Rev 916 (1988).

the Article III hierarchy - with an understanding, in short,

5. Here, the Court of Appeals for the second Circuit

that "a judgment conclusively resolves the case" because

of New York have become a instrument of judiciary fraud,

"a `judicial Power' is one to render dispositive judgments."

corruption upon the Constitution for United States for

Easterbrook, Presidential Review, 40 Case W. Res. L.

America the courts and stepped beyond the powers

Rev. 905, 926 (1990). The writ of mandamus has been

enumerated in the Constitution, and the federal statutes.

described as "an extraordinary remedy, to be reserved for

The issuance of the "extraordinary" writ is limited to cases

101

where "the party seeking issuance of the writ ha[s] no

violation of the precedent authority in Barrow v. Hunton,

other adequate means to obtain the relief he desires." Kerr,

99 U.S. (9 Otto) 80 (1878) and Gaines v. Fuentes, 92 U.S.

426 U.S. at 403. "[T]he scope of the all writs provision

(2 Otto) 10, and ignore said precedent authority which

confine[s] it to filling the interstices of federal judicial

state that: “Extrinsic fraud occurs when a party is deprived

power when these gaps threaten[] to thwart the otherwise

of the opportunity to present his claim or defense to the

proper

jurisdiction."

court; where he was kept ignorant or, other than from his

Pennsylvania Bureau of Correction v. U.S. Marshals

own negligence, fraudulently prevented from fully

Serv., 474 U.S. 34, 41 (1985) (citing McClung v. Silliman,

participating in the proceeding. [Citation.] Examples of

19 U.S. (6 Wheat) 598 (1821); McIntire v. Wood, 11 U.S.

extrinsic fraud are: concealment of the existence of a

(7 Cranch) 504 (1813)), and Dicta and Article III, 142 U.

community property asset, failure to give notice of the

PA. L. REV. 1997, 2035 (1994).

action to the other party, and convincing the other party

exercise

of

federal

courts'

6. This is the second time that this Court of Appeals

not to obtain counsel because the matter will not proceed

for the second Circuit of New York have knowingly,

(and then it does proceed). [Citation.] The essence of

willfully, unlawfully committing extrinsic fraud, in

extrinsic fraud is one party's preventing the other from

102

having his day in court.” “It is a denial of due-process if

& Casualty Co. –v- Holland (1953) 346 U.S. 379; Will –

an agency fails to obey its own rule,” See, Burnet v.

v- United States (1967) 389 U.S. 90; see also

Brooks, 288 U.S. 378, 406; Equal Protection Clause of the

Schlasenhavf –v- Holder 379 U.S. 104; Gulfstream

Fourteenth Amendment mandates that all individuals

Aerospace Corp, -v- Macayamas Corp, (1988) 99 L.Ed2d

similarly situated receive like treatment under the law, See

296, 108 S.Ct 1133, and that "no other adequate means to

Adamson v. California, 332 U.S. 46; City of Cleburne v.

attain the relief" exist, Allied Chem. Corp. v. Daiflon,

Cleburne Living Ctr., 473 U.S. 432, 439; Carey v. Piphus,

Inc., 449 U.S. 33, 35 (1980). See Papandreou, 139 F.3d at

435 U.S. 247, 259 (1978); Mathews v. Eldrigdge, 424

250. This court should grant the Writ sought by the

U.S. 319, 344 (1976); Marshall v. Jerrico, 446 U.S. 238,

plaintiff Robert Simon and should it self determine the

242 (1980); Mullane v. Central Hanover Trust Co., 339

merits of the questions raised by plaintiff Robert Simone

U.S. 306, 314 (1950). The inferior court must be held to a

petitioner in order to resolve conflicts between the two

lawful exercise of their prescribed jurisdiction. See, Roche

approaches and to protect its original and appellate

v. Evaporate milk Asso. (1943) 319 U.S. 21; U.S. Alkali

jurisdiction. See, Dicta and Article III, 142 U. PA. L.

Export Asso. –v- U.S. (1945) 325 U.S. 196; Banker’s Life

REV. 1997, 2035 (1994)

103

7. Here, Justice Brandeis once explained, the

526 (2d Cir. 1993), cert. Denied, 513 U.S. 849, 130 L. Ed.

principle of separation of powers "left to each [Branch]

2d 85, 115 S, Ct. 145 (1994). Yet even so, if a public

power to exercise, in some respects, functions in their

authority breaks the law, it is the court’s obligation to

nature executive, legislative and judicial." See Myers -v-

order it to follow the law, even if this involves financial

United States, 272 U.S. 52. The purpose of this limitation

expenditure. See The Federalist, at 480 (B. Wright, ed.,

is to help ensure the independence of the Judicial Branch

1961). In Brown v. Richardson, 395 F.Supp 185,

and to prevent the Judiciary from encroaching into Ares

190. ..."Administrative agencies are bound by the statutes

reserved for the other branches. See Ferreira, 13 How. 40

under which they operate.” “[P]erhaps no greater public

(1852); Hayburn's Case, 2 Dall. 409 (1792). Prior decision

interest exists than protecting a citizen’s rights under the

of a panel of the Court of Appeals for the second Circuit

constitution.” Legal Aid Soc. Of Hawaii v. Legal Services

New York may not be overruled except by way of in banc

Corp., 961 F.Supp. 1402, 1419 (D.Hawaii 1997); See also

review or a change in the law by higher authority. See,

Olmstead v. United States, 277 U.S. 438, 485. The public

Mediators, Inc. v. Manney (In re Mediators Inc.), 105 F.3d

are to no that the Federal court will protect all citizen’s

822, 828 (2d Cir. 1997); Samuels v. Mann, 13 F.3d 522,

constitutional rights. The court held: “Deliberately closing

104

one’s eyes to information otherwise obvious may be

the vacate of the prior order dated March 19, 2007, which

treated as equivalent to knowledge.” See, United States v.

denied petitioner’s appeals on both cases Docket 06-5304-

Cogdell, 844 F.2d 179, 181 (4th Cir 1988); United States v.

cv(L) and Docket 06-5321-cv (com), petitioner, also seek

Lizottte , 856 F.2d 341, 343 (1st Cir 1988); United State v.

recall of the mandate on both cases Docket 06-5304-cv(L)

Heineman, 801 F.2d 86, 93 (2d Cir 1986), cert denied, 479

and

U.S. 1094 (1987).

Counsel/Attorney on both cases Docket 06-5304-cv(L)

Wherefore, petitioner prays that this Court issue a writ

Docket

06-5321-cv

(com),

and

assigned

of

and Docket 06-5321-cv (com), and grant any such other,

of mandamus and writ prohibition to the Court of Appeals

further relief as this Court deem just and

to entertain petitioner’s appeals under both cases Docket

Johnson -v- Eisentrager, 339 U.S. 763, 783, (1950), the

06-5304-cv(L) and Docket 06-5321-cv (com), and not to

court held: "It would be a paradox indeed if what the

dismiss the notice of appeals filed under docket # 07-

Amendment denied to American it guaranteed to

3716, as Appendix_____, proceed to full briefing, not

enemies." In American Communications Assn. v. Douds,

only on the issue of appellate jurisdiction but also on the

330 U.S. 382, 442-443 (1950), the court held: "It is not the

substantive merits of the appeal, and Petitioner also seek

function of our Government to Keep the citizen from

105

proper. In

falling into error; it is the function of the citizen to keep

4 Whinston Street Coram N.Y. 11727; Phone# 631-327-0813 Date:_________________________

the Government from falling into error." "Government, federal and state, each in its own sphere owes a duty to the people (within its jurisdiction) to preserve itself in adequate strength to maintain peace and order and to assure the just enforcement of law. And every citizen owes the reciprocal duty, according to his capacity, to support and defend government against all enemies." See, Hamilton v. Regents, 293 U.S. 245, 262-263, (1934). CONCLUSION The petition for a writ of mandamus and writ prohibition should be granted. Respectfully submitted, _____________________________ Pro se Petitioner Robert Simon

106