IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 18-5346 Julian Marcus Raven Petitioner v. Kim Sajet, The United States of America, et al., Respondents
PETITION FOR PANEL REHEARING EN BANC Pursuant to FRAP 35, Petitioner ‘pro se’ Julian Marcus Raven, seeks rehearing en banc of Respondents’ Motion for Summary Affirmance and the Panel’s Decision order issued on May 17, 2019.
PETITION FOR REHEARING EN BANC STATEMENT
(A) The Panel’s Decision conflicts with decisions of the United States Supreme Court and of the Court of Appeals for the District of Columbia Circuit. (B) The proceeding involves one or more questions of exceptional national importance, relating to the Smithsonian Institution, a charitable trust belonging to the People of the United States, that is managed by the United States as trustee. Issues relating to the case have been decided by other Courts of Appeals.
TABLE OF CASE LAW AUTHORITIES Foman v. Davis, 371 U.S. 178, 182 (1962) Raven v. United States, 16-1682 (Fed. Cl. 2017) Conley v. Gibson, 355 U.S. 41, 48. White Mountain Apache Tribe v. U.S., 249 F.3d 1364, 1382 (Fed. Cir. 2001) Dong v. Smithsonian Institution, 125 F.3d 877, 883 (D.C. Cir. 1997) Raven v. Sajet, 334 F. Supp. 3d 22, 35 (D.D.C. 2018) United States v. Mason, 412 U.S. 391, (1973) Seminole Nation v. U.S., 316 U.S. 286, 296-97 (1942) Hunter v. United States, 30 U.S. 173, 188 (1831) LeBron v. Amtrak, 513 U.S. 374, 394 (1995) Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986) Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U.S. 230 (1957) Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) San Francisco Arts Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 546 (1987); Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172 (1972). Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) Parenti v. Moberg, No. 04-06-00497-CV, at *1 (Tex. App. May. 30, 2007)
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Harris v. Jones, 281 Md. 560, 569 (Md. 1977) Pearson v. Callahan, 555 U.S. 223, 244 (2009) Harlow, supra, at 819, 102 S.Ct. 2727 Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017) Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Saucier, supra, at 202, 121 S.Ct. 2151 Mistretta v. United States, 488 U.S. 361, 381 (1989) Youngstown Sheet Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) AUTHORITIES, RULES & LAWS www.cosmosclub.org/journals/2002/warner.html Federal Rules for Civil Procedure: Rule 15. § 874 Violation of Fiduciary Duty, Chapter 43, Restatement of the Law of Torts The Restatement(Second) of Trusts, 1959 Administrative Procedure Act(APA) Federal Tort Claims Act(FTCA) Uniform Trust Code for the District of Columbia(DOC) 2.2,2.6 Code of Judicial Conduct For The District of Columbia 20 USC § 75e 20 U.S.C. § 76c
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F. Harper F. James, Jr., The Law of Torts § 9.1, at 666-67 (1956); W. Prosser, Law of Torts § 12, at 56 (4th ed. 1971). Smithsonian Act of Congress of 1846 Webster’s Dictionary The Federalist No. 47, pp. 325-326 (J. Cooke ed. 1961) The Federalist No. 51, p. 349 (J. Cooke ed. 1961)
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LEAVE TO AMEND COMPLAINT DENIED, DENIED…!
The Panel Decision conflicts with the Supreme Court Decision in Foman v. Davis, 371 U.S. 178, 182 (1962) regarding Petitioner’s right to amend his complaint. AMENDMENT HISTORY Petitioner was granted leave to amend his complaint once for technical reasons in the District Court, before Respondents replied as a matter of course (FRCPRule 15). Petitioner discovered the Smithsonian Institution(SI) did not comport to the Administrative Procedure Act(APA).(Even though the USCFC Court thought it did in the transfer order1). Petitioner/‘pro se’ sought the appropriate legal remedy, which seemed to be the Federal Tort Claims Act(FTCA). Petitioner re-filed complaint comprised of Constitutional and Breach of Trust claims under the FTCA. Respondents’ Rule B6+B12 Motion to Dismiss did not answer the Breach of Trust claims (FTCA) portion as Petitioner had not exhausted administrative remedies at the Smithsonian, eliminating the Court’s jurisdiction over the FTCA portion. Petitioner thus motioned for voluntary
1 Raven v. United States, 16-‐1682 (Fed. Cl. 2017)
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dismissal(unopposed of course!)(Rule 41 A) of FTCA claims to cure this technical deficiency and was granted leave. Upon fulfilling the legal form 95 FTCA requirement at the Smithsonian, Petitioner returned to the District Court after 6 months to motion for a rejoinder of Breach of Trust FTCA claims requiring a motion to amend complaint, only to now be opposed by Respondents and then denied by the District Court. Petitioner’s Breach of Trust claims remain unanswered! Petitioner’s complaint was never amended to modify the facts, claims or charges. “As appears from the record, the amendment would have done no more than state an alternative theory for recovery.” Foman v. Davis, 371 U.S. 178, 182 (1962) REASONABLE ACCOMMODATIONS & ‘PRO SE’ RIGHTS! Petitioner’s ‘handicapped’ legal status as a ‘pro se’ litigant has been denied ‘reasonable accommodations’ by the District and Appeals Courts!
Petitioner’s ‘Breach of Trust’ claims were never answered by Respondents, because of a technicality. Respondents contended granting the motion was ‘legally futile.’ Why? …because Respondents & the Courts refuse to accept codified Smithsonian trust status and subsequent owed fiduciary duties, and thus the Breach
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of Trust claims sounding in tort were apparently not cognizable2. The Breach of Trust claims apparently could not be “heard according to (FTCA)(added) law.”? ibid. “[1A] The judge has an affirmative role in facilitating the ability of every person who has a legal interest in a proceeding to be fairly heard…, in the interest of ensuring fairness and access to justice, judges should make reasonable accommodations that help litigants who are not represented by counsel to understand the proceedings and applicable procedural requirements, secure legal assistance, and be heard according to law.”(Bold added.)2.2,2.6 Code of Judicial Conduct For The District of Columbia(DOC) “If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962) “It is entirely contrary to the spirit of the FRCP for decisions on the merits to be avoided on the basis of such mere technicalities. "The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel(Petitioner is ‘pro se’) (added) may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” Conley v. Gibson, 355 U.S. 41, 48. Foman v. Davis, 371 U.S. 178, 181-82 (1962)
2 “b. A fiduciary that commits a breach of his duty as a fiduciary is guilty of tortious conduct to the person for whom he should act.” (also a+c) § 874 Violation of Fiduciary Duty, Chapter 43, Restatement of the Law of Torts 3
Before the District Court’s decision was made, Petitioner’s docketed petition in response to Respondents’ opposition to amend complaint, to simply exchange the FTCA law in the existing motion before the Court, with the Uniform Trust Code for the DOC(UTC)laws3, (laws that were already cited within the original motion to amend his complaint), was inexplicably ignored in the District Court’s decision, much to Petitioner’s dismay! Breach of Trust/Breach of Fiduciary Duty claims sound clearly in Equity, but dimly in Tort4! The UTC can be the appropriate law upon which Petitioner’s Breach of Trust claims should be tested because it has multiple specific and detailed laws regarding Respondents’ duties owed Petitioner which were violated5 and a broad palette of options the Court can order granting Petitioner relief6, including monetary damages: “We conclude that the 1960 Act creates an enforceable fiduciary relationship between the United States and the Tribe, the breach of which may give rise to a cognizable claim for money damages. ” WMATribe v. U.S., 249 F.3d 1364, 1382 (Fed. Cir. 2001) “Once we have determined that a fiduciary obligation exists by virtue of the governing statute or regulations, it is well established that we then look to the common law of trusts, particularly as reflected in the Restatement (Second) of Trusts, for assistance in defining the nature of that obligation.” WMATribe v. U.S., 249 F.3d 1364, 1377 (Fed. Cir. 2001) 3 If The Restatement(Second) of Trusts, 1959 is the preferred remedy then the complaint should be amended with such. 4 “b. A fiduciary that commits a breach of his duty as a fiduciary is guilty of tortious conduct to the person for whom he should act.” (also a+c) § 874 Violation of Fiduciary Duty, Chapter 43, Restatement of the Law of Torts 5 § 19–1308.01., § 19–1308.02., § 19–1308.03., § 19–1308.04., § 19–1308.10, Uniform Trust Code, DOC 6 §
19–1310.01. of the Uniform Trust Code of the DOC: Remedies for Breach of Trust.
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The docketed petition was timely, but may have been better titled as a ‘motion’, or may have required a withdrawal of the original motion to amend, to then be refiled accordingly, since Petitioner was never informed. Please remember, Petitioner is a ‘pro se’ litigant, trying his very best to follow the law and the local rules, but who is obviously at a massive disadvantage when navigating the federal court system, and whose adversary at law is the Smithsonian Institution, represented by the full legal power of the U.S. Department of Justice and apparently also the Courts! Petitioner is not requesting any “unfair advantage” ibid., but simply what codified duty Petitioner is owed by the Courts, that places the burden upon the Courts/Judges/Panels to exercise the Court’s discretion by extending “reasonable accommodations” ibid. on behalf of justice when a ‘pro se’ litigant may have failed in a procedural matter? Petitioner was never given a reason as to why the petition was ignored!: “…outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962)
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TRUST BUT TRUST NOT
The Panel Decision conflicts with Dong v. Smithsonian Institution, 125 F.3d 877, 883 (D.C. Cir. 1997) by not recognizing the Smithsonian and its trust status that is controlling and the constitutional ramifications thereof.
The Panel only seems to acknowledge Petitioner’s ‘contention’ regarding the: “… purely private foundation” instead of accepting Dong’s determination and its implications regarding the Smithsonian trust status, which then declares the United States as trustee which turns on the common law of trusts which turns on the constitution.
The District Court briefly acknowledged the Smithsonian’s trust status, although cited in error: “It is true that the Smithsonian acts as a "trustee," in that it administers "the original Smithson trust property and later accretions." Dong , 125 F.3d at 883. ” Raven v. Sajet, 334 F. Supp. 3d 22, 35 (D.D.C. 2018) It should read: “the Smithsonian concedes it is, at least insofar as the United States, as trustee, holds legal title to the original Smithson trust property and later accretions. ”(Bold added.) Dong v. Smithsonian Institution, 125 F.3d 877, 883 (D.C. Cir. 1997) This subtle twist by the District Court buttresses its arguments by excusing the United States of its duties as trustee and thus its fiduciary liabilities
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and places the duty on the trust itself which is impossible, since the trust is only the instrument.
This judicial schizophrenia is evidence of the ‘status quo bias’ that is unlawfully controlling decisions regarding the Smithsonian Institution, and the result has created an illegal chameleon that ‘shape shifts’ every time challenged at law. How can the Courts acknowledge the United State’s ‘trustee’ role and then deny any fiduciary duties are owed Petitioner and deny claims be adjudicated according to the common law of trusts? What is a trustee ‘trustee’ of, and on whose behalf, if the trustee is not bound by fiduciary duties to the beneficiaries?
“..the United States serves in a fiduciary capacity…it is duty bound to exercise great care in administering its trust.” United States v. Mason, 412 U.S. 391, 397 (1973) “…The Court of Claims ruled that the United States breached its fiduciary duty” United States v. Mason, 412 U.S. 391, (1973) “Furthermore, this Court has recognized the distinctive obligation of trust incumbent upon the Government in its dealings …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,... should therefore be judged by the most exacting fiduciary standards. Seminole Nation v. U.S., 316 U.S. 286, 296-97 (1942) “Once we have determined that a fiduciary obligation exists by virtue of the governing statute or regulations, it is well established that we then look to the common law of trusts, particularly as reflected in the Restatement (Second) of
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Trusts, for assistance in defining the nature of that obligation.” WMATribe v. U.S., 249 F.3d 1364, 1377 (Fed. Cir. 2001) “It is the peculiar province of equity, to compel the execution of trusts.” Hunter v. United States, 30 U.S. 173, 188 (1831)
THE CONSTITUTION AND THE SMITHSONIAN
Petitioner has demonstrated exhaustively that: “the Smithsonian Institution is not and has never been considered a government bureau. It is a private institution under the guardianship of government.” Chief Justice William Howard Taft7.
The Panel is in error and in conflict to state: “to the extent that he contends that the Smithsonian Institution is a purely private foundation, that is inconsistent with his contention that it is subject to the First Amendment.”(Bold added) and yet The Supreme Court sides with Petitioner: “…we think that Atchison's assumption of Amtrak's nongovernmental status…does not bind us here.” LeBron v. Amtrak, 513 7 Speech written for Chief Justice Taft as SI Chancellor SI Assistant Secretary William Warner, September 6, 1971 www.cosmosclub.org/journals/2002/warner.html 8
U.S. 374, 394 (1995) but then the Panel cites: “the First Amendment, which by its terms applies only to governmental action” Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986) as its legal justification, The Supreme Court responds: “It is hard to imagine weaker dictum.” LeBron v. Amtrak, 513 U.S. 374, 393 (1995) “In Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U.S. 230 (1957)(per curiam), we held that Girard College, which had been built and maintained pursuant to a privately erected trust, was nevertheless a governmental actor for constitutional purposes because it was operated and controlled by a board of state appointees, which was itself a state agency. Id., at 231. Amtrak seems to us an a fortiori case.”(Bold added.) LeBron v. Amtrak, 513 U.S. 374, 397 (1995) As with the Smithsonian…!
“We have held once, Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), and said many times, that actions of private entities can sometimes be regarded as governmental action for constitutional purposes. See, e.g., San Francisco Arts Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 546 (1987); Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172 (1972). LeBron v. Amtrak 513 U.S. 374, 378 (1995) “Facing the question of Amtrak's status for the first time, we conclude that it is an agency or instrumentality of the United States for the purpose of individual rights guaranteed against the Government by the Constitution.” LeBron v. Amtrak, 513 U.S. 374, 394 (1995) The Panel’s Decision stating: “…by its terms that the First Amendment “by its terms applies only to government action.” and yet the Supreme Court declares:
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“The Constitution constrains governmental action "by whatever instruments or in whatever modes that action may be taken." LeBron v. Amtrak, 513 U.S. 374, 392 (1995)
UNFETTERED CONTRADICTION
The Panel’s Decision conflicts even with itself by stating “The District Court also correctly held that because of the discretion afforded to the Respondents’ in selecting art to display….” when in fact the District Court decreed: “Smithsonian's management has complete, unfettered discretion…” Raven v. Sajet 334 F. Supp. 3d 22, 34, 36 (D.D.C. 2018)
The Panel then cites 20 USC § 75e as justification that: “the Board may-(1) purchase, accept, borrow, or otherwise acquire portraiture, statuary, and other items for preservation, exhibition, or study. ..” and yet the Panel ignores: “It shall be the policy of the Regents to maintain a worthy standard for the acceptance of art objects for exhibition in the Gallery” 20 U.S.C. § 76c Which is it, unfettered of fettered discretion? Is the portrait selection process according to written standards or not? Are odious violations of standards lawful?
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ODIOUS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The Panel Decision regarding “intentional infliction of emotional distress” not surviving a motion to dismiss conflicts with the District Court deeming Respondents’ actions as “odious” or “evil”8. Yet, it is no wonder that Petitioner has “failed to demonstrate” ibid. anything since: “…Moberg was required to show by direct evidence …or show by other evidence "a high degree of mental pain and distress..." (bold added.) Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995).” Parenti v. Moberg, No. 04-06-00497-CV, at *1 (Tex. App. May. 30, 2007) Such evidence cannot be demonstrated at the motion to dismiss stage, “it is for the jury to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.(bold added.)” Harris v. Jones, 281 Md. 560, 569 (Md. 1977)
The District Court, in order to minimize and shrink Respondent’s “odious” ibid. actions, so as to disqualify them as ‘extreme and outrageous’, can be seen by the subtle unlawful re-categorizing of the actions and actors and reducing the actions to a mere “professional insult.” Raven v. Sajet, 334 F. Supp. 3d 22, 36 (D.D.C. 2018) The Court suspended momentarily Respondent Sajet of her status as a Federal Officer and Director of The Smithsonian National Portrait Gallery and 8 Webster’s Dictionary synonyms for “odious”.
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created a fictitious ‘market place’ level playing field with two average citizens in conflict, where horizontal ‘professional insults’ only occur. How dare the Court dissolve the boundaries of the government to suit its judgment? When the actions and actors are placed in their appropriate positions, Government Official and Director v. average citizen, we are dealing with the “Odious” ibid. abuse of power, (FYI, tyranny!) which caused severe “emotional distress” ibid.
The Panel Decision is also in conflict with: “…cases where the defendant is in a peculiar position to harass the plaintiff, and cause emotional distress, his conduct will be carefully scrutinized by the courts. See F. Harper F. James, Jr., The Law of Torts § 9.1, at 666-67 (1956); W. Prosser, Law of Torts § 12, at 56 (4th ed. 1971). Thus, in Alcorn, supra, the court referred to comment e of the Restatement, supra, § 46, i.e., that the extreme and outrageous character of the defendant's conduct may arise from his abuse of a position, or relation with another person, which gives him actual or apparent authority over him, or power to affect his interests.” (bold added.) Harris v. Jones, 281 Md. 560, 569 (Md. 1977) ABUSE OF DISCRETION? “Defendants' alleged actions…odious910 they may be, but insults11 of this kind are not actionable torts12 under DOC law13. No impartial jury14 could 9 “Furthermore, this Court has recognized the distinctive obligation of trust incumbent upon the Government in its dealings …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,... should therefore be judged by the most exacting fiduciary standards. Seminole Nation v. U.S., 316 U.S. 286, 296-97 (1942) 10 Odious: Synonyms by Webster’s Dictionary: “abhorrent, abominable, appalling… disgusting, distasteful, dreadful, evil... horrendous.. obscene…repugnant shocking…sickening…” 11 Refusal to acknowledge Respondents’ actions as tortious or breaches of fiduciary trust, declaring that federal fiduciaries may odiously ‘insult’ beneficiaries! 12
conclude that the Defendant's politically-biased rejection was "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. For these reasons, Mr. Raven's Motion to Amend must be denied as futile.” Raven v. Sajet, 334 F. Supp. 3d 22, 36 (D.D.C. 2018) The District Court contradicts itself by condemning federal fiduciary ‘alleged’ actions as “odious” ibid. and then excusing Respondents’ actions as less than “odious” ibid.? What nonsense! It is for a jury to decide how “odious” ibid., since the Court declares the actions were “odious” ibid.! Webster’s even uses ‘EVIL’ as a synonym for Respondents’ actions and so now ‘evil’ Respondents’ actions as fiduciaries are now “tolerable in a civilized society?” This is insanity!
BIVENS & UNQUALIFIED IMMUNITY
The Panel erred by conferring “qualified Immunity” on Respondents when “The principles of qualified immunity shield an officer from personal liability when an officer reasonably believes that his or her conduct complies with the law. ”(Bold
12 “b. A fiduciary who commits a breach of his duty as a fiduciary is guilty of tortious conduct to the person for whom he should act.” (also a+c) § 874 Violation of Fiduciary Duty, Chapter 43, Restatement of the Law of Torts 13 § 19–1308.01., § 19–1308.02., § 19–1308.03., § 19–1308.04., § 19–1308.10, UNIFORM TRUST CODE, DOC 14 “it is for the jury to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.(bold added.)” Harris v. Jones, 281 Md. 560, 569 (Md. 1977) 13
added.) Pearson v. Callahan, 555 U.S. 223, 244 (2009) This is even humorous to read in the light of Respondents’ judicially certified “odious” ibid. actions.
It appears that both Courts are eager to protect Respondents at any cost by condoning Respondents’ “odious” ibid. actions by placing them beyond the reach of laws, rather than obeying the Supreme Court’s mandate that: “It is the peculiar province of equity, to compel the execution of trusts.” Hunter v. the United States, 30 U.S. 173, 188 (1831) Heeding this mandate would condemn Respondents’ “odious” ibid. actions as breaches of trust, which would translate into multiple constitutional violations, which activates Bivens as well as common law, trust violations.
“Whether qualified immunity can be invoked turns on the "objective legal reasonableness" of the official's acts.” (Bold added.) Harlow, supra, at 819, 102 S.Ct. 2727.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017) Somehow “odious” ibid. government actions cannot also be objectively reasonable at the same time!
“In light of these concerns, the Court has held that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).” Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017)
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Can the Panel please explain how “odious” government actions are not either ‘plainly incompetent’ or performed with full ‘knowledge’? How can “odious” government actions be “protected” ibid. by qualified immunity?
“To determine whether a given officer falls into either of those two categories, a court must ask whether it would have been clear to a reasonable officer that the alleged conduct "was unlawful in the situation he confronted. "Saucier, supra, at 202, 121 S.Ct. 2151. If so, then the defendant officer must have been either incompetent or else a knowing violator of the law, and thus not entitled to qualified immunity. If not, however—i.e., if a reasonable officer might not have known for certain that the conduct was unlawful—then the officer is immune from liability.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017) Has the Panel asked this Supreme Court mandated question of Respondents’ “odious” actions? DUTY?
The Panel’s Decision stating that Petitioner “…failed to demonstrate that he was owed any duty..” is in conflict with: “Under the common law of trusts, it is indisputable that a trustee has an affirmative duty to act reasonably ” WMATribe v. U.S., 249 F.3d 1364, 1378 (Fed. Cir. 2001) It is redundant and contradictory for Petitioner to even have to “demonstrate he was owed duty” by a trustee, how ridiculous!
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VIOLATION OF THE SEPARATION OF POWERS
The Panel’s Decision violates the separation of powers by certifying the District Court’s decision that attributes duly conferred powers from the electorate in the form of constituted governmental speech powers to a private, non-governmental trust instrumentality managed by appointed non-paid elected officials from all three branches of the government and of the public.
The District Court declared: “It is true that the Smithsonian, Cerberus-like, sports heads from the Executive, Legislative, and Judicial Branches. 20 U.S.C. § 42.” Raven v. Sajet, 334 F. Supp. 3d 22, 30 (D.D.C. 2018)(Bold added.)
This fiduciary trustee arrangement encroaches not upon the boundaries of demarcation separating the Legislative, Executive and Judicial branches of government as established in the United States Constitution so long as it operates within its own boundaries of establishment in the Smithsonian Act of Congress of 1846. For as Justice William Taft declared in his capacity as Chancellor: “The Smithsonian Institution is not and has never been considered a government bureau. It is a private institution under the guardianship of government.”15 15 http://www.cosmosclub.org/journals/2002/warner.html Contained in a speech written for Chief Justice Warren Burger in his capacity as Chancellor of the Smithsonian by assistant secretary William Warner.
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The Panel’s Decision is in conflict with “…where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted." The Federalist No. 47, pp. 325-326 (J. Cooke ed. 1961) (emphasis in original). ” Mistretta v. United States, 488 U.S. 361, 381 (1989) "While the Constitution diffuses power the better to secure liberty…It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (concurring opinion).” Mistretta v. United States, 488 U.S. 361, 381 (1989) You cannot have “separateness but interdependence” ibid. or “autonomy but reciprocity” ibid. when sitting at the same table and making decisions in unison or as one unified body!
“the greatest security against tyranny — the accumulation of excessive authority in a single Branch …" The Federalist No. 51, p. 349 (J. Cooke ed. 1961). Mistretta v. United States, 488 U.S. 361, 381 (1989) Petitioner is not speaking about the accumulation of power in a single branch, but that the Panel’s Decision creates a whole new branch of unified unaccountable federal power where this tripart accumulation occurs.
Granting this petition for rehearing is in the interest of truth and justice!
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Affidavit of Service I, Julian Marcus Raven, on the 1st of July, 2019 do hereby swear that a copy of this petition has been served on respondents via Assistant U.S. Attorney Marina Braswell at the Department of Justice.
Julian Raven, ‘pro se’
Affidavit of Compliance I, Julian Marcus Raven, on the 1st of July 2019 do hereby swear that this document complies with FRAP 35 B2(A) in that from pages 1-17 there are 3898 words written in Times New Roman at 14 pt.
Julian Raven, ‘pro se’
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