Home > Uncategorized > Alan Gottlieb of the Second Amendment Foundation’s Failure with Hodgkins Case Has Improved My Standing to Sue on “Preenforcement Challenge” Grounds!

Alan Gottlieb of the Second Amendment Foundation’s Failure with Hodgkins Case Has Improved My Standing to Sue on “Preenforcement Challenge” Grounds!

Friday, January 8, 2010 Leave a comment Go to comments

WILL THIS ENTICE THE NRA AND SECOND AMDENDMENT FOUNDATION TO APPROACH ME WITH OFFER OF PRO BONO OR CONTINGENCY FEE REPRESENTATION? HMMMM. SOMETHING TO THINK ABOUT. ARE THEY IN IT TO WIN THE FULL SCOPE OF SECOND AMENDMENT RIGHTS? OR ARE THEY IN IT JUST FOR FAME AND GLORY?

   

EXCERPT FROM MY FORTHCOMING ADMIRALTY LAWSUIT


A. Preenforcement Standing Under Maxwell Hodkins, et al, v. Eric Holder, U.S. District Court for DC, No. 09-0587-JR (January 5, 1010)

The Memorandum of Judge James Robertson, U.S. District Court for DC dismissing Maxwell Hodgkins, Steven Dearth, and Second Amendment Foundation v. Eric Holder, No. 09-0587-JR (January 5, 1010) for lack of standing in any of the plaintiffs. The presented constitutional challenges to 18 U.S.C. § 922(a)(9) (does not allow any person “who does not reside in any State to receive any firearms unless such receipt is for lawful sporting purposes”) and 18 U.S.C. § 922(a)(5) (prohibits the transfer of firearms to any person “who the transferor knows or has reasonable cause to believe does not reside in . . . the State in which the transferor resides”). See ATF Form 4473, and 27 C.F.R. § 478.124(c)(1).    

In Hodgkins, [t]o have standing pursuant to Article III of the Constitution, plaintiffs must demonstrate, inter alia, “an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks and citations omitted). 

In Hodgkins, [t]o establish a right to proceed under the Declaratory Judgment Act, plaintiffs must demonstrate “a case of actual controversy.” Again citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks and citations omitted). 

Citing Medimmune, Inc. v. Genentech, Inc., et al., No. 05-608; 549 U.S. ____ (January 9, 2007) for an explanation on The Declaratory Judgment Act by the U.S. Supreme Court: 

III 

The Declaratory Judgment Act provides that, “[i]n a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U. S. C. §2201(a). 

 

The federal Declaratory Judgment Act was signed into law the following year, and we upheld its constitutionality in Aetna Life Ins. Co. v. Haworth, 300 U. S. 227 (1937). Our opinion explained that the phrase “case of actual controversy” in the Act refers to the type of “Cases and “Controversies” that are justiciable under Article III. Id., at 240. 

Aetna and the cases following it do not draw the brightest of lines between those declaratory-judgment actions that satisfy the case-or-controversy requirement and those that do not. Our decisions have required that the dispute be “definite and concrete, touching the legal relations of parties having adverse legal interests”; and that it be “real and substantial” and “admi[t] of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Id., at 240–241. In Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941), we summarized as follows: “Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” [1] 

 

As long as those payments are made, there is no risk that respondents will seek to enjoin petitioner’s sales. Petitioner’s own acts, in other words, eliminate the imminent threat of harm.[2] The question before us is whether this causes the dispute no longer to be a case or controversy within the meaning of Article III. 

Our analysis must begin with the recognition that, where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat—for example, the constitutionality of a law threatened to be enforced. The plaintiff’s own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction. For example, in Terrace v. Thompson, 263 U. S. 197 (1923), the State threatened the plaintiff with forfeiture of his farm, fines, and penalties if he entered into a lease with an alien in violation of the State’s anti-alien land law. Given this genuine threat of enforcement, we did not require, as a prerequisite to testing the validity of the law in a suit for injunction, that the plaintiff bet the farm, so to speak, by taking the violative action. Id., at 216. See also, e.g., Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Ex parte Young, 209 U. S. 123 (1908). Likewise, in Steffel v. Thompson, 415 U. S. 452 (1974), we did not require the plaintiff to proceed to distribute hand-bills and risk actual prosecution before he could seek a declaratory judgment regarding the constitutionality of a state statute prohibiting such distribution. Id., at 458–460. As then-Justice Rehnquist put it in his concurrence, “the declaratory judgment procedure is an alternative to pursuit of the arguably illegal activity.” Id., at 480. In each of these cases, the plaintiff had eliminated the imminent threat of harm by simply not doing what he claimed the right to do (enter into a lease, or distribute handbills at the shopping center). That did not preclude subject-matter jurisdiction because the threat-eliminating behavior was effectively coerced. See Terrace, supra, at 215– 216; Steffel, supra, at 459. The dilemma posed by that coercion—putting the challenger to the choice between abandoning his rights or risking prosecution—is “a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate.” Abbott Laboratories v. Gardner, 387 U. S. 136, 152 (1967). 

Supreme Court jurisprudence is more rare regarding application of the Declaratory Judgment Act to situations in which the plaintiff’s self-avoidance of imminent injury is coerced by threatened enforcement action of a private party rather than the government. Lower federal courts, however (and state courts interpreting declaratory judgment Acts requiring “actual controversy”), have long accepted jurisdiction in such cases. See, e.g., Keener Oil & Gas Co. v. Consolidated Gas Utilities Corp., 190 F. 2d 985, 989 (CA10 1951); American Machine & Metals, Inc. v. De Bothezat Impeller Co., 166 F. 2d 535 (CA2 1948); Hess v. Country Club Park, 213 Cal. 613, 614, 2 P. 2d 782, 783 (1931) (in bank); Washington-Detroit Theater Co. v. Moore, 249 Mich. 673, 675, 229 N. W. 618, 618–619 (1930); see also Advisory Committee’s Note on Fed. Rule Civ. Proc. 57.[3] 

Thompson v. Trent Maritime Co., 149 F. Supp. 468 (E.D. Pa. 1957) (Where the plaintiff has an inchoate right which will materialize if and when valid service is made on the defendant, the defendant’s motion to dismiss the complaint for lack of jurisdiction will be denied.)  The Canadian Commander, 43 F.2d 857 (E.D. N.Y. 1930) (A dismissal may also be refused where the court, acting within its powers, elects to assume jurisdiction.)  

Citing from Erwin Chemerinsky, Federal Jurisdiction (5th ed., Aspen Publishers, New York, 2007. ISBN 978-0-7355-6407-7. Library of Congress Cataloging-in-Publication Data: KF8858.C48 2007):[4] 

§ 2.3.1. Standing: Introduction. pp. 57-58.  

Standing is the determination of whether a specific person is the proper party to bring a matter to the court for adjudication. The Supreme Court has declared  that [i]n essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or particular issues.[5] 

Standing frequently has been identified by both justices and commentators as one of the most confused areas of the law. Professor Vining wrote that it is impossible to read the standing decisions without coming away with a sense of intellectual crisis. Judicial behavior is erratic, even bizarre. The opinions and justifications do not illuminate.[6] Thus, it is hardly surprising that standing has been the topic of extensive academic scholarship and that the doctrines are frequently attacked. Many factors account for the seeming incoherence of the law of standing. The requirements for standing have changed greatly in the past 25 years as the Court has formulated new standing requirements and reformulated old ones. The Court has not consistently asrticulated a test for the requirements for standing in federal court. The Court itself observed: We need not mince words when we say that the concept of Art. III standing has not been defined with complete consistency in all of the various cases decided by this Court. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 475 (1982). Moreover many comnmentators believe that the Court has manipulated standing rules based on its views of the merits of particular cases.[7]  

There is no ascertainable principle to rationalize rulings on standing for common law, constitutional rights, and statutory rights or other types of injuries that permit federal court review.[8] 

Injury plus allegation and proof that the injury is fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.[9] These requirements have been labeled Causation — the plaintiff must allege that the defendant’s conduct caused the harm; and redressability — the plaintiff must allege that a favorable court decision is likely to remedy the injury. The Supreme Court has declared that both causation and redressability are constitutional requirements for standing.[10] 

From the U.S. Attorney’s Manual, Title 4: Civil Resource Manual: 

SECTION 35: STANDING TO SUE 

The case or controversy clause of Article III of the Constitution imposes a minimal constitutional standing requirement on all litigants attempting to bring suit in federal court. In order to invoke the court’s jurisdiction, the plaintiff must demonstrate, at an irreducible minimum, that: 

(1) he/she has suffered a distinct and palpable injury as a result of the putatively illegal conduct of the defendant; 

(2) the injury is fairly traceable to the challenged conduct; and 

(3) it is likely to be redressed if the requested relief is granted. 

See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37 (1976). 

In order to have standing to sue under RICO civil liability provisions, plaintiff must show a violation of RICO, injury to business or property, and causation of the injury by the violation. Heckt v. Commerce Clearing House, Inc., C.A.2(N.Y.) 1990, 897 F.2D 21, 100A.L.R. Fed. 655. 

I am United States citizen and a U.S. Merchant Seaman, (a.k.a. Able Seaman for purposes of the U.S. Code). I reported aboard a U.S. government vessel as a new crew member. I was required to attend a small arms recertification course as a job-related requirement for the position of Able Seaman aboard that ship. Upon successful completion of that small arms training I applied to the U.S. Coast Guard to have that extra training recognized by the Coast Guard in the form of an endorsement on his Merchant Mariner’s Document to read National Open Carry Handgun in accordance with 46 U.S.C. § 7306(a)(3), General Requirements and Classifications for Able Seamen Is Qualified Professionally as Demonstrated by an Applicable Examination or Educational Requirements. 

April 19, 2002 the Coast Guard denied that application with their 46 C.F.R. § 1.03-15(j) Final Agency Action.  In June of 2002, I initiated a federal civil rights case under 28 U.S.C. § 1983 on Second Amendment grounds at the U.S. District Court for DC. That case was wrongfully denied with prejudice and I have been trying to get my Seventh Amendment civil jury trial ever since. 

B. Preenforcement Challenge of the U.S. Marshals Threat of Arrest for Exercising Constitutional and Statutory Rights.

This Complaint includes a preenforcement challenge of the U.S. Marshals threat of arrest for 18 U.S.C. § 111, Assaulting, Resisting, or Impeding Certain Officers or Employees; 18 U.S.C. § 1201(a)(1) and (2) Kidnapping; and 18 U.S.C. § 1203(a) Hostage Taking in an Act of Coercion and Retaliation for exercising the Common Law Right and the Statutory Right of Citizen’s Arrest under D.C. Code § 23-582(b)(1)(A), Arrests Without Warrant by Other Persons and D.C. Code § 23-582(c) (Any person making an arrest pursuant to this section shall deliver the person arrested to a law enforcement officer without unreasonable delay) of federal judges for probable cause evidence of felony Extortion by Officers or Employees of the United States (18 U.S.C. § 872) in violation of the Seamen’s Suit Law, (18 U.S.C. § 1916). 

C. Preenforcement Challenge to the U.S. Coast Guard and the U.S. Department of Transportation’s Threat of Arrest with Their Mutual Bar Notices of 2004 and 2006 for Exercising First, Second, Seventh, and Fourteenth Amendment Rights.

This Complaint includes a preenforcement challenge to the U.S. Coast Guard and the U.S. Department of Transportation’s mutual Bar Notices of 2004 and 2006 (see pages 30 and 31). The Bar Notice of 2004 prohibited me from entering “any of the DOT Headquarters, FAA Headquarters, or USCG Headquarters buildings for any reason without obtaining prior approval from OST Security Operations.” The Bar Notice of 2006 barred me “from entering the U.S. Coast Guard Headquarters or any U.S. Department of Transportation (DOT) Headquarters Building.” Missing from the 2006 Bar Notice is the prohibition from entering “any of the DOT Headquarters” or “FAA Headquarters.” This is an indicator of a situational Conspiracy Against Rights under 18 U.S.C. § 241 because I was not aware of the Bar Notice of 2004 in I visited the U.S. Coast Guard in 2006. 

I note that neither of the Bar Notices of 2004 or 2006 included a description of any alleged offense or any alleged breach of the peace or any alleged breach of security nor did either Bar Notice include any information on my right of appeal, whether administrative of judicial, of the Bar Notices. I also note that the Bar Notice of 2006 cited 41 C.F.R. § 102‑74.390 What is the Policy Concerning Disturbances?; and District of Columbia Code, Chapter 22-3302, Unlawful Entry onto Property. 

41 C.F.R. § 102‑74.390 What is the Policy Concerning Disturbances? 

All persons entering in or on Federal property are prohibited from loitering, exhibiting disorderly conduct or exhibiting other conduct on property that— 

(a) Creates loud or unusual noise or a nuisance; 

(b) Unreasonably obstructs the usual use of entrances, foyers, lobbies, corridors, offices, elevators, stairways, or parking lots; 

(c) Otherwise impedes or disrupts the performance of official duties by Government employees; or 

(d) Prevents the general public from obtaining the administrative services provided on the property in a timely manner. 

I note in the Bar Notice for 2006 that Michael Prendergast, Associate Director, Security Operations, U.S. Department of Transportation  incorrectly citice “District of Columbia Code, Chapter 22-3302, Unlawful Entry onto Property.” The full caption hierarchy is: 

District of Columbia Official Code 2001
Division IV. Criminal Law and Procedure and Prisoners
Title 22. Criminal Offenses and Penalties
Subtitle I. Criminal Offenses
Chapter 33. Trespass; Injuries to Property
§ 22-3302. Unlawful entry on property
 

Any person who, without lawful authority, shall enter, or attempt to enter, any public or private dwelling, building, or other property, or part of such dwelling, building, or other property, against the will of the lawful occupant or of the person lawfully in charge thereof, or being therein or thereon, without lawful authority to remain therein or thereon shall refuse to quit the same on the demand of the lawful occupant, or of the person lawfully in charge thereof, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $100 or imprisonment in the Jail for not more than 6 months, or both, in the discretion of the court. The presence of a person in any private dwelling, building, or other property that is otherwise vacant and boarded-up or otherwise secured in a manner that conveys that it is vacant and not to be entered, or displays a no trespassing sign, shall be prima facie evidence that any person found in such property has entered against the will of the person in legal possession of the property. 

I am not personally sure whether it is properly citied as DC Code or DC Statute but the WebLinks.WestLaw.com Web site for the DC Code’s notation is “DC ST § 22-3302.” 

It is my claim that the U.S. Coast Guard enlisted Michael Prendergast of the U.S. Department of Transportation in a Conspiracy Against My Rights under 18 U.S.C. § 241 and to Deprive Me of My Rights Under Color of Law, 18 U.S.C. § 242, with the issuance of the Bar Notices of 2004 and 2006 in retaliation for naming the officers of the U.S. Coast Guard as defendants in my ongoing lawsuits for seamen’s rights (just tertii doctrine) and my own rights under the Second Amendment as a function of the Common Defence Clause in the Preamble to the Constitution in what I believe was the U.S. Coast Guard’s attempt to obstruct justice because what other reason could there be in my situation when the Bar Notices of 2004 and 20067 DO NOT describe any allege offense nor advise me of my rights to appeal, whether administrative or judicial. That alone violates the Administrative Procedure Act (Pub. L. 79-404) 5 U.S.C. § 551 et al; and my Fifth Amendment right. 

It is also my claim that this Federal Court in my previous cases from 2004 to the present joined that conspiracy by refusing to rule on my Motions for permanent or even temporary injuctions against the Bar Notices of 2004 and 2007. That violates my Seventh Amendment right to a civil jury trial and the Rule of Law on Motions for Injunctive Relief. 

D.  Preenforcement Challenge Listed in ‘B.’ and ‘C.’ above Constitutes a Personal Threat of Prosecution as a “Special Priority”  under Navegar and Seegars (Plaintiff being a seaman is a ward of the Admiralty constitutions a “Special Priority”)

Citing Hodgkins again: “The Court of Appeals has since explained [Navegar, Inc. v. United States, 103 F.3d 994, at 1001 (D.C. Cir. 1997)]’s  ‘special priority’ language, holding that preenforcement standing will exist only when a plaintiff has been ‘personally threatened with prosecution or . . . his prosecution has [a] special priority for the government.’ [Seegars et al. v. Gonzales (formerly Aschroft), 396 F.3d 1248, at 1251 (D.C. Cir. 2005)], 396 F.3d at 1251.” 

 FOOTNOTES: 

[1] The dissent asserts, post, at 1, that “the declaratory judgment procedure cannot be used to obtain advanced rulings on matters that would be addressed in a future case of actual controversy.” As our preceding discussion shows, that is not so. If the dissent’s point is simply that a defense cannot be raised by means of a declaratory-judgment action where there is no “actual controversy” or where it would be “premature,” phrasing that argument as the dissent has done begs the question: whether this is an actual, ripe controversy. Coffman v. Breeze Corps., 323 U. S. 316, 323–324 (1945), cited post, at 3, does not support the dissent’s view (which is why none of the parties cited it). There, a patent owner sued to enjoin his licensee from paying accrued royalties to the Government under the Royalty Adjustment Act of 1942, and sought to attack the constitutionality of the Act. The Court held the request for declaratory judgment and injunction nonjusticiable because the patent owner asserted no right to recover the royalties and there was no indication that the licensee would even raise the Act as a defense to suit for the royalties. The other case the dissent cites for the point, Calderon v. Ashmus, 523 U. S. 740, 749 (1998), simply holds that a litigant may not use a declaratory‑judgment action to obtain piecemeal adjudication of defenses that would not finally and conclusively resolve the underlying controversy. That is, of course, not the case here.

[2] The justiciability problem that arises, when the party seeking declaratory relief is himself preventing the complained-of injury from occurring, can be described in terms of standing (whether plaintiff is threatened with “imminent” injury in fact “ ‘fairly . . . trace[able] to the challenged action of the defendant,’ ” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992)), or in terms of ripeness (whether there is sufficient “hardship to the parties [in] withholding court consideration” until there is enforcement action, Abbott Laboratories v. Gardner, 387 U. S. 136, 149 (1967)). As respondents acknowledge, standing and ripeness boil down to the same question in this case. Brief for Respondent Genentech 24; Brief for Respondent City of Hope 30–31.

[3] The dissent claims the cited cases do not “rely on the coercion inherent in making contractual payments.” Post, at 9, n. 3. That is true; they relied on (to put the matter as the dissent puts it) the coercion inherent in complying with other claimed contractual obligations. The dissent fails to explain why a contractual obligation of payment is magically different. It obviously is not. In our view, of course, the relevant coercion is not compliance with the claimed contractual obligation, but rather the consequences of failure to do so.

[4] Hereinafter refered to as Chemerinsky 2007.

[5] Warth v. Seldin 422 U.S. 490, 498 (1975).

[6] Chemerinsky 2007 citing Joseph Vining, Legal Identity 1 (1978).

[7] Chemerinsky 2007 citing: See e.g., Richard J. Pierce, Standing: Law or Politics?, 77 N.C. L. Rev. 1741 (1999); Gene Nichol, Jr., Abusing Standing: A Comment on Allen v. Wright, 133 U. Pa. L. Rev. 635, 650 (1985).

[8] Paraphrased Chemerinsky 2007, p. 73.

[9] Allen v. Wright 468 U.S. 737, at 751 (1984) (Allen also denied standing based on failure to meet causation requirement).

[10] See e.g., United States v. Hays 515 U.S. 737, 743 (1995).


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