Opposition to Defendants' Motion in Opposition To Plaintiff's Motion For Leave 2 Include FTCA Claims by Julian Raven

1 U.S. DISTRICT COURT FOR DISTRICT OF COLUMBIA (WASHINGTON D.C.) 2 7.16.18 3 4 5 Julian Marcus Raven ] 6 ] 7 v. ] 8 ] Docket # 1:17-cv-01240-TNM 9 Kim Sajet & Richard Kurin ] Hon. Judge McFadden 10 & The U.S.A. ] 11 12 13 14 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN OPPOSITION TO 15 PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT WITH JOINDER 16 OF FTCA CLAIMS 17 18 To the honorable Judge McFadden, Plaintiff ‘pro se’ Julian Marcus Raven requests the 19 Court to deny Defendants’ Motion for the following reasons: 20 21 “I AM THE DIRECTOR OF THE NATIONAL PORTRAIT GALLERY, YOUR 22 APPLICATION WILL GO NO FURTHER, YOU CAN APPEAL IT ALL YOU 23 WANT!” Smithsonian National Portrait Gallery Director, Kim Sajet, December 1st, 2016. 24 25

“The Portrait Gallery’s treatment of plaintiff’s request to have his portrait displayed cannot

be considered “extreme or outrageous” conduct…”? Page 5 Defs’ Motion before the Court.

This ‘extreme and outrageous’ final declaration in the 11 minute phone call argument which

Defendant Sajet made to Plaintiff is a crystal clear portrait of the “extreme and outrageous”

conduct by Defendant Sajet and the treatment Plaintiff endured.

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“Rather, "[t]he conduct must be 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Id. (quoting Homan v. Goyal, 711 A.2d 812, 818 (D.C. 1998)).” Kowalevicz v. United States, Case No. 1:16-cv-2494-TNM (D.D.C. Mar. 13, 2018) “There is no doubt that the United States serves in a fiduciary capacity with respect to these (Smithsonian Trust beneficiaries, added for effect.) Indians, and that, as such, it is duty bound to exercise great care in administering its trust. United States v. Mason 398 F. 412 U.S. (1973)(Bold added.) “Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior (bold added). As to this there has developed a

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tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions ( Wendt v. Fischer, 243 N.Y. 439, 444). Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.” (Bold added.) Meinhard v. Salmon, 249 N.Y. 458, 464 (N.Y. 1928)

7 “The Smithsonian was established by the United States Congress to carry out the fiduciary 8 responsibility assumed by the United States in accepting the bequest of James Smithson…” 9 Statement of Values and Code of Ethics, Smithsonian Institution, 2007 10 11 12 13

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Defendant Sajet in a hostile tone deceptively twisted and distorted existing written standards in order to accomplish Defendant Sajet’s unlawful premeditated objective under the influence of anti-Trump animus and bias.

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Defendant Sajet lied when Defendant was confronted with the facts and subsequently argued, raising her voice to bolster her lie as she defiantly insisted on her set of ‘facts’.

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Defendant Sajet invented her own set of standards of portraiture acceptance which she then cited as reason for refusing Plaintiff’s lawfully presented application.

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Defendant Sajet’s desperate attempts to injure Plaintiff came towards the end of the 11 minute argument as Defendant had clearly lost control having had her arguments refuted resorted to insulting Plaintiff’s art.

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Defendant Sajet, the sworn director of the Smithsonian National Portrait Gallery, sworn to uphold the laws and Constitution of the United States and the standards, procedures, values and ethics of the Smithsonian Institution, bound by the strictest fiduciary duties to trust beneficiaries, the American People, having had her arbitrary, false, deceptive and hostile objections refuted, resorted to abusing her power by aggressively proclaiming her authority and position as the Director of the National Portrait Gallery to end Plaintiff’s arguments and hang up the phone.

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(7)"Liability will not be imposed for mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." District of Columbia v. Tulin, 994 A.2d 788, 800 (D.C. 2010) (citation omitted). Rather, "[t]he conduct must be 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Id. (quoting Homan v. Goyal, 711 A.2d 812, 818 (D.C. 1998)). "Whether the conduct complained of is sufficiently outrageous is a question of law that should be decided by the court on a motion to dismiss." Smith v. United States, 121 F. Supp. 3d 112, 124 (D.D.C. 2015), aff'd, 843 F.3d 509 (D.C. Cir. 2016).

37 Kowalevicz v. United States, Case No. 1:16-cv-2494-TNM (D.D.C. Mar. 13, 2018) 38 39 Defendants argue that Defendant Sajet’s conduct was not outrageous or extreme, did not go 40 beyond the bounds of decency, was not atrocious and was tolerable in a civilized community! 41

1 This disturbing defense by Defendants of the conduct of Smithsonian Federal Officials in the 2 instant case is as outrageous as FBI agent Peter Strzok’s claims before Congress on July 12th, 3 2018, that his blatant anti-Trump animus displayed in multiple texts recorded on a 4 Government issued device were not evidence of anti-Trump bias and had no impact on his 5 work and decisions! 6 7 Defendants have refused to defend against, refute or deny Plaintiff’s claims by choosing not to 8 answer Plaintiff’s legitimate claims recorded in the Amended Complaint but instead choosing 9 to motion the Court to dismiss Plaintiff’s Amended Complaint. 10 11 For Defendants now to attempt to defend Defendants’ actions in a single broad brush 12 statement minimizing and sanitizing Defendants’ actions without ever having addressed 13 Plaintiff’s claims to mental injury is reason enough for the denial of Defendants’ motion that 14 is before the Court. 15 16 If Defendant Sajet’s deliberate hostile actions and and the resulting detrimental effects on 17 Plaintiff’s personal life do not constitute mental injuries in tort then we must conclude that 18 Peter Strzok was and is not biased against Donald Trump and that this plague of anti-Trump 19 animus and bias that has infected the Federal Government is just the new accepted normal. 20 21 Defendants have argued extensively that they do not owe anybody the duty of care, especially 22 Plaintiff, which is the basis for an FTCA claim. Defendants’ arguments continue to fly in the 23 face of a clearly established Congressional act, the Smithsonian Act of 1846 in which a ‘trust’ 24 was created. Defendants’ have continued to reject this clearly established fact because it is the 25 very thing that creates the fiduciary duties that govern the administration of a trust, the ‘duty 26 of care’ to trust beneficiaries being preeminent in the administration of a trust.

1 2 The ‘disintegration of erosion’ cited often by Plaintiff, spoken by Judge Cardozo is plainly on 3 view. Not even the attorneys at the Smithsonian Institution are conscious of any fiduciary 4 duties owed the beneficiaries. The level of disconnect from the fiduciary duties incumbent 5 upon Smithsonian employees especially the Trustees and Directors is truly incredible. It 6 really is shocking that not once throughout the instant case have Defendants acknowledged 7 their fiduciary duties. Both the attorneys for the Smithsonian Institution and Defendants argue 8 the “claim is not cognizable under the FTCA.” and again that is because when fiduciary duties 9 are denied then the duty is not owed according to their theory and as such a tort of negligence 10 cannot occur. 11 12 It may be that it is Defendant Sajet’s actions alone constitute ‘mental injuries’ in tort and thus 13 comports under the FTCA and that the breaches of trust committed by the other defendants 14 comports to the Uniform Trust Code for the District of Columbia. In that event, Plaintiff lays 15 out the case for Breach of Trust as the basis for claims against Defendants Sajet, Kurin, 16 Fortune, St. Thomas etc. for Breaches of Trust. 17 18

FTCA JUDGEMENT BAR

19 20 Since the FTCA has a judgment bar (28 U.S. Code § 2676 ) Plaintiff would have to choose at 21 some point to drop either the Bivens Action or the FTCA since any FTCA judgment would 22 bar and vacate any other favorable or non favorable judgment Plaintiff would receive in any 23 other action against Defendants. 24 25 26

UNIFORM TRUST CODE OVER FTCA AS THE PREFERRED LEGAL REMEDY

2 3 As such Plaintiff requests the Court to allow the claims in the FTCA portion of Plaintiff’s 4 present Motion for Leave to Amend Complaint with Joinder of FTCA claims and to file those 5 claims under the UNIFORM TRUST CODE for the District Of Columbia, since the claims are 6 for breaches of trust by all of the Defendants there in. Throughout the FTCA claims Plaintiff 7 cites 15 U.S. Code § 80a-35 for Breach of Fiduciary Duty and 29 U.S. Code § 1109, 1105 for 8 Liability for Breach of fiduciary duty. 9 10 That Defendants must respond to all claims as breaches of trust under the Uniform Trust Code 11 for the District of Columbia. The tortious claims against Defendants in the FTCA claims are 12 unable to be litigated due to the FTCA judgment bar. Plaintiff believes that the 13 constitutionality of the Bivens Action and the Fiduciary Duties of the Breach of Trust action 14 trumps the FTCA, since the public will be better served by a victorious outcome. 15 16

STANDING TO SUE SMITHSONIAN TRUSTEES AND THEIR OFFICERS FOR

BREACH OF TRUST – LEGAL STANDARD

The Smithsonian Institution, thus the Smithsonian National Portrait Gallery should be

treated as a charitable trust under the Uniform Trust Code for the District of Columbia:

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“The great weight of authority supports the view that, if a gift is made expressly or by necessary implication for the public benefit, such bequest is a charity and is to be governed by the rules applicable to charitable trusts. Bequests to establish and maintain art galleries as a public benefit have been sustained as charities. Mason, Ex'r, v. Bloomington Library Association, 237 Ill. 442, 86 N.E. 1044, 15 Ann. Cas. 603; Almy, Administrator, v. Jones, 17 R.I. 265,21 A. 616, 12L.R.A. 414; 11 C.J. 319, § 22. We are of opinion that the gift to the Dallas Art League was intended as a public benefit, and must be sustained as a public charity. Tarver v. Weaver, 130 So. 209, 666 (Ala. 1930) “So also are trusts for the advancement of knowledge by research or otherwise. So too are trusts for the dissemination of knowledge or beliefs through the distribution of books

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or pamphlets, or the delivery of lectures.” Scott And Ascher on Trusts, Vol 6 pages 2520, 2521 “A trust for the promotion of public education is plainly charitable…Such trusts are charitable not merely because they promote education, but also because they assist the government in performing one of its governmental functions.”, Scott and Ascher on Trusts, Vol 6, page 2528 PRIVATE INDIVIDUALS WHO HAVE A SPECIAL INTEREST MAY BRING SUITS TO ENFORCE CHARITABLE TRUSTS If Kapiolani Park is the subject of a charitable trust, then the City is the trustee by virtue of the executive order of the governor turning the property over to it. Where a trustee of a public charitable trust is a governmental agency, such as the City, and that agency does not file periodic accounts of its stewardship, and will not seek instructions of the court as to its duties, even though there is a genuine controversy as to its power to enter into a particular transaction, and where, in such a case, the attorney general as parens patriae, has actively joined in supporting the alleged breach of trust, the citizens of this State would be left without protection, or a remedy, unless we hold, as we do, that members of the public, as beneficiaries of the trust, have standing to bring the matter to the attention of the court.(Bold added.) Kapiolani Park Preservation Society v. City County, 751 P.2d 1022, 572 (Haw. 1988)

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Were we to hold otherwise, the City, with the concurrence of the attorney general, would be free to dispose, by lease or deed, of all, or parts of, the trust comprising Kapiolani Park, as it chose, without the citizens of the City and State having any recourse to the courts. Such a result is contrary to all principles of equity and shocking to the conscience of the court.(Bold added.) Kapiolani Park Preservation Society v. City County, 751 P.2d 1022, 572-73 (Haw. 1988)

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“While public supervision of the administration of charities remains inadequate, a liberal rule as to the standing of a plaintiff to complain about the administration of a charitable trust or charitable corporation seems decidedly in the public interest.” Paterson v. Paterson Gen. Hospital, 235 A.2d 487, 528 (N.J. Super. App. Div. 1967)(Bold added.)

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NOTE REGARDING HOOKER v EDES HOME: “Based on the unusually comprehensive and refined, and fundamentally sound reasoning of the foregoing case, one can identify illustrative situations in which special-interest standing of this type should be appropriate.” Standing to Enforce Trusts: Renewing and Expanding Professor Gaubatz 's 1984 Discussion of Settlor Enforcement Edward C. Halbach Jr Berkeley Law

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Because the will, charter, and by-laws of the corporation establish a set of criteria identifying a limited class of potential beneficiaries of the charitable trust, we conclude that members of that class have a "special interest" in the trust distinct from that of members of the public at large, notwithstanding the Trustees' discretion to exclude them from the trust benefits.

Hooker v. Edes Home, 579 A.2d 608, 609 (D.C. 1990)

As argued above and as can be seen in Hooker, “the will, charter, and by-laws of the

corporation establish a set of criteria identifying a limited class of potential beneficiaries of

the charitable trust”, which is identical to the instant case. The ‘set of criteria’ specifically

in the visual arts and specifically in the Smithsonian National Portrait Gallery for the

consideration and participation of trust beneficiaries who qualify, in this case artists who

have painted specific and relevant historical portraits by default become a “limited class”

and the Court of Appeals concludes: “..that members of that class have a "special interest" in

the trust distinct from that of members of the public at large…” Hooker v. Edes Home, 579

A.2d 608, 609 (D.C. 1990)

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EDES HOME CHARTERED BY CONGRESS AS WITH THE SMITHSONIAN Pursuant to instructions in the will directing establishment of a charitable corporation under the laws of the District of Columbia, on May 1, 1906, Congress chartered the Edes Home, providing for its perpetual succession" for the purpose of "erect[ing] and forever maintain[ing] and support[ing] in [Georgetown], a home for aged and indigent widows. . . ." Hooker v. Edes Home, 579 A.2d 608, 609 (D.C. 1990)

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The Edes Home Board of Trustees established additional criteria beyond those set out in the will as in the case of the Smithsonian Institution’s National Portrait Gallery. “In the by-laws, the Board of Trustees established additional admission criteria beyond those set out in the will and charter,” Hooker v. Edes Home, 579 A.2d 608, 609 (D.C. 1990) BREACH OF FIDUCIARY DUTY “As later amended, the complaint named all four trustees in their individual capacity, alleging breach of fiduciary duty, ultra vires acts by the Trustees, and failure to act in the best interests of the trust beneficiaries.” Hooker v. Edes Home, 579 A.2d 608, 610 (D.C. 1990)

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“Although Edes Home is technically a charitable corporation chartered by Act of Congress, the trial court concluded, and the parties agree, that rules applying to charitable trusts govern the standing issue.” Hooker v. Edes Home, 579 A.2d 608, 611 n.8 (D.C. 1990) THE SPECIAL INTEREST EXCEPTION B. The "Special Interest" Exception An exception to the general rule, recognized by this court, exists in situations where an individual seeking enforcement of the trust has a "special interest" in continued performance of the trust distinguishable from that of the public at large. YMCA v. Covington, supra, 484 A.2d at 591-92; RESTATEMENT (SECOND) OF TRUSTS, supra, § 391 comment c. In these situations, though the private beneficiary is the "conduit" through which broader community benefits flow, the plaintiff sues to secure an individualized interest in the trust, and the problems presented by suits from a "practically limitless and wholly indefinite group of persons," Mount Vernon Mortgage Corp., supra note 9, 98 U.S.App.D.C. at 430, 236 F.2d at 725, are less pronounced.

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Hooker v. Edes Home, 579 A.2d 608, 612 (D.C. 1990)

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In the present case, however, persons for whose benefit the Edes trust was created are not identified with that degree of particularity, but instead categorically. In these situations, the general rule is that "one who is merely a possible beneficiary . . . or a member of a class of possible beneficiaries, is not entitled to sue for enforcement of the trust." Alco Gravure, Inc. v. Knapp Found., 64 N.Y.2d 458, 465,490 N.Y.S.2d 116, 119,479 N.E.2d 752, 755 (1985); RESTATEMENT (SECOND) OF TRUSTS, supra, § 391 comment c; Kania v. Chatham, 297 N.C. 290, 291-93,254 S.E.2d 528, 530 (1979). Older cases treat persons who fairly represent a class of identifiable (but not identified) beneficiaries as mere "possible" beneficiaries, denying them standing. See, e.g., Revici v. Conference of Jewish Material Claims Against Germany, 11 Misc.2d 354,174 N.Y.S.2d 825 (N.Y.Sup.Ct. 1958) (where trust was to benefit persons suffering damage as a result of Nazi persecution, suit could only be maintained by Attorney General; person injured by Nazis lacked standing).

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Hooker v. Edes Home, 579 A.2d 608, 612 (D.C. 1990)

While "special interest" is a term of uncertain scope, it appears that at least a clearly identified intended beneficiary has a justiciable interest in enforcement of the trust. Comment c of section 391 of the Restatement sets out examples of what constitutes a "special interest" within the meaning of the exception.

In support of their arguments, both sides cite YMCA v. Covington, supra, in which this court held that members of a YMCA branch which the YMCA proposed to relocate had a "special interest" in the trust distinct from that of other members of the public. 484 A.2d at 592. According to the Trustees, YMCAcompels the conclusion that standing is limited to persons with a current right to enjoy the trust benefits.Appellants counter that YMCA does not limit standing to current beneficiaries, and that there we conferred

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standing on the members not because they were members per se but because of the nature of their interest in the particular facility,

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Hooker v. Edes Home, 579 A.2d 608, 613 (D.C. 1990)

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Hooker v. Edes Home, 579 A.2d 608, 613 (D.C. 1990)

For our purposes YMCA merely underscores that the essence of a "special interest" in a charitable trust is a particularized interest distinct from that of members of the general public. See Lokey v. Texas Methodist Found., 479 S.W.2d 260, 265 (Tex. 1972), cited with approval in YMCA v. Covington, supra, 484 A.2d at 591.

A ‘SMALL CLASS OF PERSONS’ The better reasoned view — consistent with the Restatement's recognition of representative standing for a member of a "small class of persons" — is that a particular class of potential beneficiaries has a special interest in enforcing a trust if the class is sharply defined and its members are limited in number. Alco Gravure, supra, 64 N.Y.2d at 465,490 N.Y.S.2d at 119,479 N.E.2d at 755. See also St. John's-St. Luke Evangelical Church v. National Bank, 92 Mich. App. 1, 13-19,283 N.W.2d 852, 858-60 (1979) (where class of beneficiaries not "uncertain and indefinite," standing should not be denied), distinguishing Oleksy v. Sisters of Mercy, 74 Mich. App. 374,253 N.W.2d 772 (1977); Gray v. St. Matthews Cathedral Endowment Fund, 544 S.W.2d 488, 491 (Tex.Ct.Civ.App. 1976) ("problems of identification of beneficiaries and of undue harassment are not present when the class of persons to be benefited is a small, identifiable group, as distinguished from the public generally"). Hooker v. Edes Home, 579 A.2d 608, 614 (D.C. 1990)

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“Nevertheless, we must decide whether the standards established in the Edes will, the charter, and the by-laws sufficiently narrow the class of potential beneficiaries. We conclude that they do.” Hooker v. Edes Home, 579 A.2d 608, 615 (D.C. 1990)

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“Moreover, the Trustees' own representations provide evidence that the class of potential beneficiaries is limited.” Hooker v. Edes Home, 579 A.2d 608, 615 (D.C. 1990) COLLECTIVE INTEREST IS THE END RESULT OF PLAINTIFF’S SUIT “A suit by a representative of a class of potential beneficiaries should aim to vindicate the interests of the entire class and should be addressed to trustee action that impairs those interests, not the interests of a given individual.” Hooker v. Edes Home, 579 A.2d 608, 615 (D.C. 1990) “Since the suit here is to vindicate a collective interest in the continued availability of that benefit — an interest affected by a proposed exercise of discretion that will change the nature of the institution — the prospect of recurrent, vexatious litigation is minimal.” Hooker v. Edes Home, 579 A.2d 608, 617 (D.C. 1990)

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THE NATURE OF THE CHALLENGE

Plaintiff’s claims do not challenge discretionary decision making by any of the Defendants.

All of the challenges are for clear statutory breaches of trust according to the clearly written

codified Uniform Trust Code of the District of Columbia. The breaches are clearly see in

the clear violations of Smithsonian written procedures, standards and ethics. The Court in

Hooker was naturally concerned with the ramifications of rulings which expose trustees to

arbitrary challenges to any legitimate decisions that, in this case Smithsonian Officials

would be made in the course of officiating their duties. This is not the case with Plaintiff’s

case. The end result of a victorious outcome will be to compel the Smithsonian Institution

and its officials to acknowledge its trust status and thus treat all beneficiaries especially

those actively participating in the Will of Smithson with the utmost duty of care by abiding

by the rule of law controlling the Smithsonian Institution.

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By contrast, where the challenge is to an ordinary exercise of discretion on a matter expressly committed to the trustees, recurring litigation is much more probable. For example, in Kania v. Chatham, supra, the appellate court denied standing to a student who had been nominated for a scholarship (but not selected by the trustees) to sue the trustees for abuse of discretion. 297 N.C. at 291-93,254 S.E.2d at 530. The court emphasized the large size of the class of nominees for the scholarship, and recognized the danger that, if standing were conferred on this plaintiff, every spurned nominee (some 930 in number) could file an action challenging a decision committed to the trustees' discretion. The court was unwilling to allow rejected potential beneficiaries to clog court dockets and dissipate trust assets with attacks on ordinary exercises of trustees' judgment. Hooker v. Edes Home, 579 A.2d 608, 615 (D.C. 1990) We go further, however, and adopt another limiting factor as well. Even when a class of potential beneficiaries is small and distinct enough that its members appear to have an interest distinguishable from the public's, the problem of subjecting the trustees to recurring vexatious litigation may exist. Where potential beneficiaries are identified categorically (for example, as elderly indigent widows), the eligible class by nature will expand and contract continuously, and recognizing a representative member's right to challenge any action by the trustees

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raises the danger of proliferation of wasteful lawsuits which the exclusivity rule avoids. Thus, in addition to the nature of the class, we think it necessary — in the case of potential beneficiaries — also to consider the nature of the challenge to the trustees' acts in deciding whether to apply the special interest exception.

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“Appellants argue vigorously that they are not alleging a simple abuse of discretion by the Trustees, and that the prospect of recurring vexatious litigation predicated on ordinary exercises of the Trustees' judgment is not present here. ” Hooker v. Edes Home, 579 A.2d 608, 616 (D.C. 1990)

Hooker v. Edes Home, 579 A.2d 608, 614 (D.C. 1990)

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We conclude, therefore, that elderly, indigent widows satisfying the Trustees' own eligibility requirements have standing to challenge the actions proposed by the Board here, which may affect their "special interest" as a class in the continued administration of the Edes trust in a manner consistent with the will and charter. All such members have a present opportunity to enjoy a direct benefit differing markedly from the incidental and indirect benefit the public realizes from the housing of indigent elderly widows. Since the suit here is to vindicate a collective interest in the continued availability of that benefit — an interest affected by a proposed exercise of discretion that will change the nature of the institution — the prospect of recurrent, vexatious litigation is minimal. Hooker v. Edes Home, 579 A.2d 608, 617 (D.C. 1990)

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PLAINTIFF HAS ‘SPECIAL INTEREST’ STANDING IN THE PARTICIPATION AND ENFORCEMENT OF THE WILL OF SMITHSON

THE WILL OF SMITHSON

ARTISTS AS CREATORS AND DIFFUSERS OF KNOWLEDGE

1. The plain reading of the will of James Smithson is for the establishment of an institution

for the increase and diffusion of knowledge among men.” Will of Smithson. The will

specifically calls for the 1. increase and 2. diffusion of knowledge. Without specifying who

could or could not participate in the will(active or passive will), the instructions for the

increase of knowledge creates participation rights for those who actually can actively

‘create’ or ‘produce’ an increase of knowledge.

Artists are a particular type of knowledge creator. Artists take a ‘blank’ canvas for example

which has ‘0’ knowledge, then the creative process produces ‘knowledge’ from nothing into

a visual/pictorial form. A painting created by an artist is packed with graphic knowledge, as

the old adage goes, “a picture says a thousand words.” This paintings are a form of

knowledge creation.

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The visual manner in which art, paintings communicate knowledge fulfills the second part

of the will for the diffusion of knowledge. Art is one of the most powerful types of

knowledge communication as testified by mankind’s record of history which has graphically

depicted human history over the last 5000 years. You may not read ancient Egyptian

hieroglyphics, but you can understand a great deal by looking at the multitude of ancient

Egyptian pictorial records. Just imagine what learning ancient Egyptian history would have

been like without pictures? This powerfully depicts how art is essential for the increase and

diffusion of knowledge! Paintings and sculptures are always diffusing knowledge, they are

always switched on. Books need to be opened and read, music happens and then is quiet,

but the painting keeps on diffusing.

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Christian history and the communication of the gospels has been accomplished through

stained glass windows and religious art for the last 2000 years. Imagine what the history of

the Christian world would be like without ancient mosaics or paintings or sculptures like Da

Vinci’s ‘Last Supper’, Michael Angelo’s Sistine Chapel or statues of David, Moses or the

Pieta?

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Thus artists have always played a vital role in the increase and diffusion of knowledge for

mankind and in the instant case, artists play an vital role in the fulfillment of the Will of

James Smithson for the increase and diffusion of knowledge.

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As the first secretary of the Smithsonian Institution Joseph Henry declared in the

“Programme of Organization”:…5. These two objects should not be confounded with one

another. The first is to enlarge the existing stock of knowledge by the addition of new truths;

and the second, to disseminate knowledge, thus increased, among men. 6. The will makes no

restriction in favor of any particular kind of knowledge; hence all branches are entitled to a

share of attention. 7. Knowledge can be increased by different methods of facilitating and

promoting the discovery of new truths; and can be most extensively diffused among men by

means of the press.”

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The better reasoned view — consistent with the Restatement's recognition of representative standing for a member of a "small class of persons" — is that a particular class of potential beneficiaries has a special interest in enforcing a trust if the class is sharply defined and its members are limited in number. Hooker v. Edes Home, 579 A.2d 608, 614 (D.C. 1990)

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THE SMITHSONIAN ACT OF CONGRESS

ART A SPECIFIC CATEGORY

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2. The Smithsonian Act of Congress of 1846 created specifically the ‘Art’ category as a

critical component of the ‘knowledge’ that was to be increased and diffused through the

Smithsonian Institution.

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“Where potential beneficiaries are identified categorically (for example, as elderly indigent widows), the eligible class ” Hooker v. Edes Home, 579 A.2d 608, 614 (D.C. 1990)

In Section 5 of the Smithsonian Act of 1846 we read: “And be it further enacted, That, so

soon as the board of regents shall have selected the said site, they shall cause to be erected a

suitable building, of plain and durable materials and structure, without unnecessary

ornament, and of sufficient size, and with suitable rooms or halls, for the reception and

arrangement, upon a liberal scale, of objects of natural history, including a geological and

mineralogical cabinet; also a chemical laboratory, a library, a gallery of art,…”

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In Section 6 of the Smithsonian Act of 1846 we read: “And be it further enacted, That, in

proportion as suitable arrangements can be made for their reception, all objects of art…”

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Thus since the establishment of the Smithsonian Institution ‘Art’ was recognized as a vital

component for the fulfillment of the Will of Smithson. By Congressionally establishing this

category of knowledge, Congress decreed that art and thus the artists who create the art have

a ‘special interest’ in the Smithsonian Institution. The ‘special interest’ is “different than or

different from those to which members of the public are entitled to generally.” Scott And

Asher on Trusts, Vol 5. Page 2441

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SMITHSONIAN TRUSTEE RECOMMENDATION

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3. It was Congress who accepted in trust the will and property of James Smithson: “…and

the United States having, by an act of Congress, received said property and accepted said

trust;…” Smithsonian Act of Congress 1846

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As such, Congress remains the principal trustee of the will of Smithson. Thus members of

Congress are all trustees of the will and property of James Smithson. In the Smithsonian

Act of Congress we read: “SEC. 11. And be it further enacted, That there is reserved to

Congress the right of altering, amending, adding to, or repealing, any of the provisions of

this act. Provided, That no contract, or individual right, made or acquired under such

provisions, shall be thereby divested or impaired.”

Congressman Tom Reed, of the 23 congressional district in New York officially

recommended Plaintiff’s portrait for ‘exhibition and study’ at the inauguration of the

President Elect Donald Trump. Congressman Reed wrote: “I would ask the selection

committee to give your work every consideration…”(Bold added.)

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Thus by official recognition and recommendation of Congressman Reed, a Trustee of the

Will of Smithson, Plaintiff was recognized as having a ‘special interest’ in the fulfillment of

the “…increase and diffusion of knowledge.”

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Congressman Reed’s official written request was not even acknowledged or honored.

Defendants’ refused to honor Smithsonian procedures and guidelines for portraiture

consideration and refused to honor a Smithsonian Institution congressional trustee’s request

that Plaintiff’s application receive ‘every consideration.’!

14 15

At the trial court in the District of Columbia Defendants in Hooker v. Edes Home prevailed

before being overturned at the appeals court level. Thus Congressman Reed’s

recommendation does count if for anything in affirming Plaintiff’s status as a member of a

specific group in this case ‘artists’ who do have special interests in the participation and

enforcement of the trust.

20 21 22 23 24

The Trustees state the legal proposition on which they prevailed below as follows: "when trustees are invested with discretion to choose the beneficiaries of a trust from potential candidates, a person has no standing to sue the trust unless he or she has been chosen as a beneficiary, even though he or she may meet the threshold requirements of eligibility."

Hooker v. Edes Home, 579 A.2d 608, 613 (D.C. 1990)

26 27 28 29

“According to the Trustees, YMCA compels the conclusion that standing is limited to persons with a current right to enjoy the trust benefits.” Hooker v. Edes Home, 579 A.2d 608, 613 (D.C. 1990)

1 2 3

THE NATURE OF THE CHALLENGE

4 5 6 7

“By contrast, where the challenge is to an ordinary exercise of discretion on a matter expressly committed to the trustees, recurring litigation is much more probable.” Hooker v. Edes Home, 579 A.2d 608, 615 (D.C. 1990)

4. Plaintiff’s case is about egregious breaches of trust and outrageous conduct by

Smithsonian Officials. Were the Court to decide that Defendants’ actions and conduct were

merely the exercise of discretion, then every applicable codified law in the Uniform Trust

Code of the District of Columbia identifying the obligations and duties of trustees and their

agents might as well not exist.

13 14

The nature of the challenge in Plaintiff’s case alone gives grounds for enforcement of the

will of Smithson because of the egregious nature of the conduct and actions.

16 17

NATIONAL PORTRAIT GALLERY COMMISSION CREATION OF

ELEGIBILITY STANDARDS

19 20

5. Smithsonian National Portrait Commission guidelines created in 1962 gives Plaintiff

‘special interests’ standing. The Commission was given by the Board of Regents: “the

power to make such rules and regulations” one of which dictates that “…In every instance

the historical significance(of the portrait. Added) is judged before the artistic merit of the

prominence of the Artist.”

25 26

Clearly Plaintiff’s totally unique historic portrait gave Plaintiff ‘special interests’ in the

fulfillment of the Will of Smithson and the purpose of the Smithsonian National Portrait

Gallery since there was no other comparable work of Art in existence at the time that

captured/reflected such a historic individual and event. The uniqueness of the painting was

attested to by Yosi Sergant, former White House liaison for the arts under President Obama

and patron of the Obama ‘Hope’ poster by Shepherd Fairey. He declared that Plaintiff’s

painting was the ‘only one out there’ since he had made a vigorous search for pro-Trump

campaign related portraits to be shown in Los Angeles at Politicon 2016 thus establishing

the required “historical significance” of the portrait.

8 9

Following along this line of reasoning we read in USC20§75e. Powers of Board

“For the purpose of carrying out any function authorized by section 75b of this title, the

Board may—

(1) purchase, accept, borrow, or otherwise acquire portraiture, statuary, and other items for

preservation, exhibition, or study. The Board may acquire any such item on the basis of its

general historical interest, its artistic merit, or the historical significance of the

individual to which it relates, or any combination of any such factors.”(Bold added.)

16 17

Plaintiff’s painting qualified as having ‘general historic interest’, ‘artistic merit’ and the

‘historic significance of the individual’ meeting all three of these ‘factors’ thus giving

Plaintiff again ‘special interest’ in participating, fulfilling and enforcing the will of James

Smithson and the purposes of the Smithsonian National Portrait Gallery.

21 22 23 24 25

26 27

1 2 3

THE SMITHSONIAN NATIONAL PORTRAIT GALLERY

A SPECIFIC MUSEUM CREATED FOR A SPECIFIC & LIMITED CATEGORY

OF ACTIVE BENEFICIARIES AND THEIR PARTCIPATION IN THE TRUST

6 7

6. Establishment of the Smithsonian National Portrait Gallery USC 20 §75b

“(b) The Gallery shall function as a free public museum for the exhibition and study of

portraiture and statuary depicting men and women who have made significant contributions

to the history, development, and culture of the people of the United States and of the

ARTISTS who created such portraiture and statuary.”(Bold added.)

12 13

Congress proceeded to amplify the specific ‘Art’ category by the addition of specific

museums dedicated to the increase and diffusion of knowledge through ‘Art’. What is made

clear now in the National Portrait Gallery is that not only was the gallery to exist for the

‘exhibition and study’ of the portraits and subjects in the portraits but also ‘of the ARTISTS

who created such portraiture and statuary.” thus creating a specific, limited beneficiary

group with ‘special interests.’

19 20

Section 75b clearly establishes ‘artists’ as having ‘special interests’ in the fulfillment of the

Will of Smithson in the area of pictorial knowledge and thus the purpose and function of the

National Portrait Gallery.

23 24 25

“Moreover, the Trustees' own representations provide evidence that the class of potential beneficiaries is limited.” Hooker v. Edes Home, 579 A.2d 608, 615 (D.C. 1990)

26 27 28

1 2 3 4 5 6 7 8 9 10 11

if the class is sharply defined and its members are limited in number. Alco Gravure, supra, 64 N.Y.2d at 465,490 N.Y.S.2d at 119,479 N.E.2d at 755. See also St. John's-St. Luke Evangelical Church v. National Bank, 92 Mich. App. 1, 13-19,283 N.W.2d 852, 858-60 (1979) (where class of beneficiaries not "uncertain and indefinite," standing should not be denied), distinguishing Oleksy v. Sisters of Mercy, 74 Mich. App. 374,253 N.W.2d 772 (1977); Gray v. St. Matthews Cathedral Endowment Fund, 544 S.W.2d 488, 491 (Tex.Ct.Civ.App. 1976) ("problems of identification of beneficiaries and of undue harassment are not present when the class of persons to be benefited is a small, identifiable group, as distinguished from the public generally"). Hooker v. Edes Home, 579 A.2d 608, 614 (D.C. 1990)

12 13 14 15 16 17 18 19 20

Where potential beneficiaries are identified categorically (for example, as elderly indigent widows), the eligible class by nature will expand and contract continuously, and recognizing a representative member's right to challenge any action by the trustees raises the danger of proliferation of wasteful lawsuits which the exclusivity rule avoids. Thus, in addition to the nature of the class, we think it necessary — in the case of potential beneficiaries — also to consider the nature of the challenge to the trustees' acts in deciding whether to apply the special interest exception. (Bold added.) Hooker v. Edes Home, 579 A.2d 608, 614 (D.C. 1990)

21 22 23 24 25 26

27 28

THE SMITHSONIAN INSTITUTION IS A TRUST

29 30 31 32 33 34 35 36 37

“James Smithson, esquire, of London, in the Kingdom of Great Britain, having by his last will and testament given the whole of his property to the United States of America, to found at Washington, under the name of the "Smithsonian Institution," an establishment for the increase and diffusion of knowledge among men; and the United States having, by an act of Congress, received said property and accepted said trust; Therefore, For the faithful execution of said trust, according to the will of the liberal and enlightened donor,…”(Bold added.) Preamble to the Smithsonian Act of Congress August 10th, 1846,

Hunter v. United States, 30 U.S. 173, 188 (1831) (“It is the peculiar province of equity, to

compel the execution of trusts.”), Hopkins v. Granger, 52 Ill. 504, 510 (1869) “It is one of

the oldest heads of chancery jurisdiction, to execute and control trusts and trust

funds.” The Court’s role and discretion when dealing with trustees and trusts is broad and

plenary.

(Please see article on discretionary powers of the Courts in trust cases.

https://www.americanbar.org/publications/probate_property_magazine_2012/2013/january_

february_2013/article_ebner_shutting_down_fiduciary.html)

6 7

THE SMITHSONIAN INSTITUTION ACKNOWLEDGES ITS TRUST STATUS

AND FIDUCIARY DUTY TO TRUST BENEFICIARIES

9 10

In striking contrast to the actions and arguments of Defendants Sajet and Kurin, the

Smithsonian Institution does publically acknowledge its fiduciary duties, which binds and

submits the Smithsonian Institution to the common law of trusts, in the instant case, the

Uniform Trust Code for the District of Columbia: “The Smithsonian Institution is a public

trust whose mission is the increase and diffusion of knowledge. The Smithsonian was

established by the United States Congress to carry out the fiduciary responsibility assumed

by the United States in accepting the bequest of James Smithson to create the Smithsonian

Institution. We are accountable to the general public as well as to the Smithsonian’s

multiple stakeholders in carrying out this responsibility. We recognize that the public

interest is paramount.” Statement of Values and Code of Ethics, Smithsonian Institution,

2007

21 22

THE ROLE OF THE COURTS IN THE EXECUTION OF TRUSTS RUN BY

THE FEDERAL GOVERNMENT

24 25

Below are a series of citations from authorities and case law concerning the administration

of Indian lands held in trust by the Federal Government. These quotes shed light on the issue

of the relationship between the Federal Government and the beneficiaries in the

administration of a trust in which the government is trustee. Just replacing the word

‘Indians’ with the ‘American People’ or ‘Citizen Beneficiaries of the Will of Smithson’ or

even Plaintiff in this case, illuminates marvelously, the entire case which is before the Court.

5 6

American Indian Policy Commission Final Report, Department of the Interior

https://www.doi.gov/sites/doi.gov/files/migrated/cobell/commission/upload/6-1-

AmIndianPolicyComm_FinRpt_Chp-4-Trust-Responsibility_May1977.pdf

9 10

“…It should be noted that many of the 11 Commission task forces discussed factors in the

development of the Federal Trust relation.1 Moreover several excellent law review articles

and general essays have examined Federal judicial decisions, statutory and treaty law, and

the historical evolution of the trust doctrine.2

14 15 COMMON LAW TRUST PRINCIPLES APPLY TO THE FEDERAL GOVERNMENT 16 17

“In addition to good faith and loyalty, the fiduciary relationship also requires that the

trustee exercise the care, diligence and skill of a prudent person in managing the trust assets

of the beneficiary. The common law principle has been directly applied to the Federal trust

responsibility to Indians. United States v. Mason, 412 U.S. 391(1973): Menominee Tribe

v. United States, 101 Ct. Cl. 10 (1944): Manchester Band of Pomo Indians, Inc. v.

United States, 363 F. Supp. 1238 (N..D. Cal. 1973)” American Indian Policy – Trust

Responsibility, Page 128 (Department of the Interior.gov) (Please read pages 125-138)

24 1 See U.S. Congress, American Indian Policy Commission, Final Report of Task 2 For example R. Chambers, Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 Stanford L.R. 1218 (1975) 21

“The United States holds legal title to the Indian Lands, yet those lands cannot be disposed

of or managed contrary to the equitable title resting with the Indians. This means that while

the United States Government has the appearance of title as the nominal owner of Indian

Trust lands, it is actually holding title entirely for the benefit and use of the Indian

owners.” Page 126 (Bold added.)

6 7

“TRUSTEE’ DUTY OF CARE

The Federal duty can also be likened to the “implied trust” in common law whereby a trust

is created by operation of law. Generally, such trusts are recognized by the courts on the

basis of an implied intention to the parties to a transaction (resulting trust) or on the basis

that recognition of a trust is necessary in order to prevent the unjust enrichment of one

party who committed fraud, deception or some other wrongdoing(constructive trust)3. In

such circumstances, the requirements and restrictions imposed on a trustee are

recognized though no formal trust document creates them.” (Bold added.)

15 16

FEDERAL GOVERNMENT ACTIONS MEASURED AGAINST COMMON LAW

17 18

“This analysis of the United States duty to Indians as that of a trustee to his beneficiary

is supported by many judicial decisions where common law trust principles were used to

measure the actions of the Federal Government toward the Indians.4 Whether the

creation of the responsibility is deemed an express trust or implied trust and whether the

nature of the duty is identified as an active trust or a passive trust, the results are the same:

the Federal Government is a fiduciary and as such is “judged by the most exacting

3 5 A. Scott, Law of Trusts 3013-‐3216 (3d ed. 1967) 4 E.g. United States v. Mason, 412 U.S. 391(1973): Manchester Band of Pomo Indians, Inc. v. United States, 263 F. Supp. 1288 (N.D. Cal. 1973).

fiduciary standards” 5 This means that it must act with good faith and utter loyalty to the

best interests of the beneficiary.6 It must keep the beneficiary informed of all significant

matters concerning the trust and must not engage in “self dealing”7. Under common law

principles, if the trustee manages the trust property in such a way that he may benefit (such

as, for example, buying property for himself) and the beneficiary has not been fully

informed of the transaction and consented to it, the transaction is voidable by the

beneficiary, even though the trustee may have acted in good faith and the bargain was fair

and reasonable. And even if the beneficiary did consent to the transaction prior to its taking

place, he may still be able to void it if the trustee can be shown to have failed to disclose

essential facts which he knew or should have known, or if he fraudulently induced consent,

or if the bargain was not fair or reasonable.”8 Page 128 (Bold added.)

12 13

SUPREME COURT OPINION ON THE MATTER

14 15

“There is no doubt that the United States serves in a fiduciary capacity with respect to

these Indians, and that, as such, it is duty bound to exercise great care in administering

its trust. See, e.g., Seminole Nation v. United States, 316 U.S. 286, 296-297(1942)…As

Professor Scott has written, “A trustee is under a duty in administering the trust to exercise

5 “the Government is something more than a mere contracting party. Under a humane and self-‐imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards.” (Bold added.) Seminole Nation v. United States, 316 U.S. 297 (N.D. Cal. 1973) 6 Manchester Band of Pomo Indians Inc. v. United States, 363 F. Supp. 1238(N.D. Cal. 1973) For further elaboration on this standard or performance, see 5 A. Scott, Law of Trusts 1298 (3rd Ed. 1967) 7 5 A. Scott, Law of Trusts 1277-‐1299 (3d ed. 1967) 8 Id. at 1298 23

such case and skill as a man of ordinary prudence would exercise in dealing with his own

property.” United States v. Mason 398 F. 412 U.S. (1973)(Bold added.)

3 4

ESTEEMED JUDGE CARDOZO ON THE MATTER OF

UNBENDING FIDUCIARY DUTY

“Many forms of conduct permissible in a workaday world for those acting at arm's length,

are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than

the morals of the market place. Not honesty alone, but the punctilio of an honor the most

sensitive, is then the standard of behavior (bold added). As to this there has developed a

tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude

of courts of equity when petitioned to undermine the rule of undivided loyalty by the

‘disintegrating erosion’ of particular exceptions ( Wendt v. Fischer, 243 N.Y. 439, 444).

Only thus has the level of conduct for fiduciaries been kept at a level higher than that

trodden by the crowd. It will not consciously be lowered by any judgment of this court.”

(Bold added.) Meinhard v. Salmon, 249 N.Y. 458, 464 (N.Y. 1928)

16 17

SMITHSONIAN BOARD OF REGENT’S IRC REPORT DECLARES OFFICIALS

AND DIRECTORS OWE FIDUCIARY DUTIES AND ARE SUBJECT TO

THE COMMON LAW OF TRUST

20 21

In the Independent Review Committee Report (IRC) commissioned by the Board of Regents

in 2007 to investigate allegations of corruption at the Smithsonian Institution,

committee on pages 28-31 clearly submits the Smithsonian Institution as a trust to common

law regulating trusts. The insightful report states: “The duties required of one in such a

fiduciary capacity are well established in the law. The duty of care generally describes the

level of attention required of a director in all matters related to the organization. This duty of

the IRC

care is perhaps more accurately described as a “duty to be informed.” A director has the

responsibility to become informed about an issue before making a business decision relating

to the issue. A director will fulfill the duty of care if, prior to making a decision, he or

she seeks out and considers all material information reasonably available to him or

her. To fulfill the duty of care, the directors should follow deliberate procedures and

consult with appropriate committees, officers or employees of the organization or other

outside experts in making corporate decisions. This often means going beyond what is

provided to the board by in-house staff, including consulting with outside experts, talking

directly to, and questioning, employees with knowledge of the facts and, above all, asking

thoughtful and probing questions. Board members may not simply rely on the word of

senior management without further inquiry.

12 13

The duty of loyalty requires a director to act in the interest of the entity rather than in the

personal interest of the director or some other person or organization. More importantly, the

duty of loyalty encompasses an obligation of directors and key employees with financial or

other decision-making authority to avoid conflicts of interest. For a director, a violation

of this duty may result in personal liability for a breach of fiduciary duty. For the

organization, such a breach may allow a court to void the corporate transaction in

which a conflict was present.” (Bold added.) IRC Report Pages 30,31

https://www.si.edu/content/governance/pdf/IRC_report.pdf

21 22

INDIVIDUAL SMITHSONIAN OFFICIAL ACTIONS AND DECISIONS MUST BE

MEASURED AGAINST THE COMMON LAW OF TRUSTS

24 25

1. The Duty to Administer Trust: “Upon acceptance of a trusteeship, the trustee shall

administer the trust in good faith, in accordance with its terms and purposes and the interests

of the beneficiaries, and in accordance with this chapter.” § 19–1308.01., Uniform Trust

Code, District of Columbia

2. The Duty of loyalty: “(a) A trustee shall administer the trust solely in the interests of the

beneficiaries.(b) Subject to the rights of persons dealing with or assisting the trustee as

provided in section 19-1310.12, a sale, encumbrance, or other transaction involving the

investment or management of trust property entered into by the trustee for the trustee’s

own personal account or which is otherwise affected by a conflict between the trustee’s

fiduciary and personal interests is voidable by a beneficiary affected by the transaction

unless: (1) The transaction was authorized by the terms of the trust; (2) The transaction

was approved by the court; (3) The beneficiary did not commence a judicial proceeding

within the time allowed by section 19-1310.05;

(4) The beneficiary consented to the trustee’s conduct, ratified the transaction, or released

the trustee in compliance with section 19-1310.9; or…” § 19–1308.02. Uniform Trust

Code, District of Columbia

15 16

3. The Duty of Impartiality. If a trust has 2 or more beneficiaries, the trustee shall act

impartially in investing, managing, and distributing the trust property, giving due regard to

the beneficiaries’ respective interests. § 19–1308.03. Uniform Trust Code, District of

Columbia

20 21

4. The Duty of Prudent Administration: “A trustee shall administer the trust as a prudent

person would, by considering the purposes, terms, distributional requirements, and other

circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable

care, skill, and caution.” § 19–1308.04. Uniform Trust Code, District of Columbia

5. The Duty of Record Keeping: “(a) A trustee shall keep adequate records of the

administration of the trust.” § 19–1308.10. Uniform Trust Code, District of Columbia

3 4

SMITHSONIAN FEDERAL OFFICIAL’S ACTIONS AND DECISIONS

CONSTITUTE BREACHES OF TRUST

6 7

(On their faces, both the Sajet decision and Kurin decision violate the terms of the

Smithsonian Institution’s governing and controlling will of James Smithson. The will states

that the object of the Smithsonian will expressed in the Smithsonian Institution is

categorically, specifically and solely for the “…increase and diffusion of knowledge among

men.” Smithsonian Act of Congress, 1846. The will of James Smithson, held in trust by

the United States, declares: “…In the case of the death of my said Nephew without leaving a

child or children, or the death of the child or children he may have had under the age of

twenty-one years or intestate, I then bequeath the whole of my property subject to the

Annuity of One Hundred pounds to John Fitall, & for the security & payment of which I

mean Stock to remain in this Country, to the United States of America, to found at

Washington, under the name of the Smithsonian Institution, an Establishment for the

increase & diffusion of knowledge among men.”

19 20

The details of the decisions are clearly laid out in Plaintiff’s ‘Amended Complaint’ and

‘Motion in Opposition to Defendant’s Motion to Dismiss’.

Defendants’ decisions is that of the complete absence of any adherence, compliance or

obedience to the will of James Smithson. Thus facially, Defendant’s actions constitute a

breach of trust. Every decision by the defendants was made to hinder, resist, stifle and

distort knowledge, rather than fulfilling the will of the testator. This is evinced by the

complete absence of any reference in both the 11 minute arbitrary phone call from

Defendant Sajet to Plaintiff and the written refusal by Dr. Richard Kurin to the will of James 27

What is crystal clear in

Smithson, the terms of the will, the Congressional Act of 1846, Smithsonian Institution’s

standards & procedures or portraiture consideration, ethics or values or any sense of any of

the common law duties owed the beneficiaries of the will of the James Smithson.

4 5

Multiple fiduciary duties were completely violated by Defendant Sajet’s personal anti-

Trump animus which tainted all of Defendant Sajet’s decisions. The duties of Loyalty,

Care, Impartiality, Administration and Recordkeeping were completely violated constituting

egregious breaches of trust and fiduciary duty.

9 10

Defendant Sajet personally called Plaintiff off the record, argued with Plaintiff, fabricated

arbitrary standards, distorted established standards, lied when confronted with the facts,

insulted Plaintiff’s art and then ended the argument by flexing Defendant Sajet’s authority

as the Director of a government institution authoritatively declared: “I am the Director of the

Smithsonian National Portrait Gallery, your application will go no further, you can appeal

my decision all you want!”

16 17

No effort by Defendant Sajet or Defendant Kurin was made as ‘agents’, ‘functional

fiduciaries’ or ‘trustee delegates’ to abide by the fiduciary duty of loyalty to the will of

Smithson and its beneficiaries, in this case, Plaintiff. No effort was made by either defendant

to abide by the fiduciary duty of care to abide by the clearly written will and the codified

and constituted Smithsonian Institution’s policies and procedures for the consideration,

processing and historical analysis of portrait consideration whether for donation, acquisition

or loan, since neither forms of contributing to the ‘increase and diffusion of knowledge’ are

distinguished in written policy.

In Defendant Kurin’s third of a page, or just over 100 word reply to Plaintiff’s 44 page

appeal, he refused to hear, acknowledge or respond to the contents of the appeal. The 44

page appeal document consisted of: the appeal letter to the trustees, the Smithsonian Board

of Regents detailing the arbitrary and capricious actions of Defendant Sajet, the 20 page

original Smithsonian application and the multiple official letters of recommendation from

lawfully elected public representatives of upwards of 200,000 members the American

People who are also beneficiaries of the will of James Smithson. There were letters from art

collectors and regional radio host Frank Acomb. There were also 18 copies of a 18x30” full

color print of the painting. The official elected representative’s opinions, reflected the will

of The People, the voices of upwards of 200,000 beneficiaries of the will of Smithson were

completely ignored and not even even considered. (Please see the letter attached.) It is clear

that Defendant Kurin was either incapable, unqualified or unwilling to lawfully consider

Plaintiff’s appeal.

14 15

Defendants Kurin’s refusal to cite the Will of Smithson, established procedures, policies and

standards, but rather apply the vague and arbitrary recently created ‘tradition’ as a reason for

denial and undocumented deliberations with Defendant Sajet, coupled by the refusal to

acknowledge Plaintiff’s appeal or give Plaintiff a chance to be heard all constitute violation

of clearly established fiduciary duties:

20 21

PLAINTIFF’S REQUESTS MADE TO DEFENDANT KURIN WERE IGNORED

22 23

Plaintiff’s letter in response to Defendant Kurin’s letter(Please see Letter in Response

attached.) was completely ignored by Defendant Kurin. In Plaintiff’s response, Plaintiff

requested answers to Defendant Kurin’s arbitrary letter to which Plaintiff never received a

reply. Defendant Kurin by refusing Plaintiff’s request has stated that Defendant Kurin has

the last word no matter how arbitrary and Plaintiff has no recourse or right to be heard or

have Plaintiff’s legitimate questions answered. Defendant Kurin by refusing Plaintiff’s

request has trampled on the preeminent duty of Loyalty which states: “(a) A trustee shall

administer the trust solely in the interests of the beneficiaries.” § 19–1308.02. Uniform

Trust Code, District of Columbia

6 7

Defendant Kurin, by refusing Plaintiff’s request has breached the fiduciary Duty To Inform

and Report: “(a) A trustee shall keep the qualified beneficiaries of the trust reasonably

informed about the administration of the trust and of the material facts necessary for them to

protect their interests. Unless unreasonable under the circumstances, a trustee shall

promptly respond to a beneficiary’s request for information related to the

administration of the trust. (b) Subject to subsection (e) of this section, a trustee:

(1) Upon request of a beneficiary, shall promptly furnish to the beneficiary a copy of

the trust instrument;” § 19–1308.13. Uniform Trust Code, District of Columbia (Bold

added.)

DEFENDANTS DO NOT DENY, DEFEND AGAINST OR

REFUTE PLAINTIFF’S CLAIMS

Defendants have neither defended nor denied Plaintiff’s claims laid out in the Amended

Complaint. Defendants by all accounts, will be unable in any shape or form to demonstrate

that they have adhered to, complied with any of the common law duties owed the

beneficiaries of the Will of Smithson, in the instant case, Plaintiff.

22 23

Thus Plaintiff’s claims of breach of trust are sound. To remedy these breaches of trust at

this stage of litigation, the Court receives lawful guidance from clearly laid out trust laws in

§ 19–1310.01. of the Uniform Trust Code of the District of Columbia: Remedies for

breach of trust.

1 2

(a) A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust.

(b) To remedy a breach of trust that has occurred or may occur, the court may:

(1) Compel the trustee to perform the trustee’s duties;

(2) Enjoin the trustee from committing a breach of trust;

(3) Compel the trustee to redress a breach of trust by paying money, restoring property, or

other means;

(4) Order a trustee to account;

(5) Appoint a special fiduciary to take possession of the trust property and administer the

trust;

(6) Suspend the trustee;

(7) Remove the trustee as provided in section 19-1307.06;

(8) Reduce or deny compensation to the trustee;

(9) Subject to section 19-1310.12, void an act of the trustee, impose a lien or a constructive

trust on trust property, or trace trust property wrongfully disposed of and recover the

property or its proceeds, or

(10) Order any other appropriate relief.

18 19

TRUSTEE DECISION TO DELEGATE TO DEFENDANT KURIN MUST BE

MEASURED AGAINST THE COMMON LAW OF TRUSTS

21 22

Trustees may delegate to ‘agents’: “§ 19–1308.07. Delegation by trustee. “(a) A trustee

may delegate duties and powers that a prudent trustee of comparable skills could properly

delegate under the circumstances. The trustee shall exercise reasonable care, skill, and

caution in:

26 27 28 29 30 31 32 33 34 35 36 37 38

(1) Selecting an agent; (2) Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; and (3) Periodically reviewing the agent’s actions in order to monitor the agent’s performance and compliance with the terms of the delegation. (b) In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the delegation. (c) A trustee who complies with subsection (a) of this section is not liable to the beneficiaries or to the trust for an action of the agent to whom the function was delegated. (d) By accepting a delegation of powers or duties from the trustee of a trust that is subject to the law of the District of Columbia, an agent submits to the jurisdiction of the courts of the District of Columbia.” (Bold added.)

As can be seen from Defendant Kurin’s letter, there is absolutely no compliance with the:

”purposes and terms of the trust.” “§ 19–1308.07 (2). The letter is unlawful, evasive,

arbitrary and devoid of any sense that the beneficiaries are the primary concern of the trust:

“(a) A trustee shall administer the trust solely in the interests of the beneficiaries.” (a) Duty

of Loyalty § 19–1308.02., “Upon acceptance of a trusteeship, the trustee shall administer

the trust in good faith, in accordance with its terms and purposes and the interests of the

beneficiaries, and in accordance with this chapter.” § 19–1308.01. , Uniform Trust Code,

District of Columbia

9 10

The Court thus has the authority both to rescind the decisions made by Defendant’s Sajet

and Kurin and also the decision to delegate that the trustees made. The trustee decision is

not supported by record, only by reference in Defendant Kurin’s letter. Plaintiff did not

receive a response from Chancellor John Roberts or the Board of Regents to whom Plaintiff

directly appealed according to § 19–1308.13. The Duty to inform and report. (a) A trustee

shall keep the qualified beneficiaries of the trust reasonably informed about the

administration of the trust.

17 18

Discovery needs to occur in order to discover the individual/s who received the appeal and

the nature of the trustee deliberations and of the terms of the delegation from the trustees to

Defendant Kurin:

21 •

Which trustees received the appeal? Since 18 named copies were sent to each member of the

Board of Regents via Chancellor Roberts.

23 •

Did The trustees read the appeal?

24 •

Why was the decision made to delegate the appeal to a non trustee ‘agent’ Defendant Kurin?

25 •

Who made the decision to delegate the responsibility?

26 •

Was the decision made according to § 19–1308.02. Duty of loyalty. (a) A trustee shall

administer the trust solely in the interests of the beneficiaries and The Duty of Prudent

Administration: “A trustee shall administer the trust as a prudent person would, by

considering the purposes, terms, distributional requirements, and other circumstances of the

trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and

caution.” § 19–1308.04. Uniform Trust Code, District of Columbia

5 •

What were the instructions given by the trustees to Defendant Kurin?

6 •

Did the trustees form a quorum to make the decision?

7 •

Is the decision to delegate the appeal to Defendant Kurin contained in the minutes of a

meeting according to § 19–1308.10. Recordkeeping and identification of trust property:

(a) A trustee shall keep adequate records of the administration of the trust.

10 •

Where are those minutes if they exist and if they do not exist why do they not exist?

11 •

Did the trustees according to § 19–1308.07(2) Delegation by trustee, establish “the scope

and terms of the delegation, consistent with the purposes and terms of the trust?”

13 •

Did the trustees according to§ 19–1308.07(3) Delegation by trustee review “the agent’s

actions in order to monitor the agent’s performance and compliance with the terms of the

delegation.”?

16 17

CONCLUSION

The Court must deny Defendants’ Motion in Opposition to Plaintiff’s Motion for Leave to

Amend Complaint with Joinder of FTCA Claims since Plaintiff has established tortious

grounds for proceeding with the FTCA claims even though Plaintiff does not wish to

proceed under the FTCA as explained above.

Plaintiff has established essential standing for the ‘special interest’ requirement for members

of the public to bring suit against a charitable trust for breaches of trust and violations of the

will of the testator.

Plaintiff motions the Court to allow the claims which have been filed under the FTCA to

proceed under the Uniform Trust Code for the District of Columbia since the basis for the

FTCA claims is for the Breach of Trust as cited repeatedly throughout the complaint and the

claims are identical if they were to be re-written. That Defendants must respond according

to the Uniform Trust Code for the District of Columbia as the legal standard and 15 U.S.

Code § 80a-35 Breach of Fiduciary Duty and 29 U.S. Code § 1109, 1105

4 5

Sincerely,

15 16 17 18 19 20 21 22 23 24 25

6 7 8 9 10 11 12 13 14

Julian Marcus Raven 2524 Co. Rt. 60 Elmira, New York, 14901 607-215-8711 info@julianraven.com I hereby certify that on 7.16.18 a copy of this motion has been mailed to Attorney Braswell at the Department of Justice 26 27