Court of Appeals for the District of Columbia Circuit Statement of Issues to be raised.

UNITED STATES COURT OF APPEALS For the District of Columbia Circuit

Julian Marcus Raven Appellant

v.

United States of America, et al., Appellees

] ] ] ] ] ] ] ] ] ] ]

No. 18-5346

APPELLANT’S STATEMENT OF ISSUES TO BE RAISED

Pursuant to the Court’s Order of November 28th, 2018, Appellant (pro se) Julian Marcus Raven in Case No. 18-5346 hereby submits this ‘Statement of Issues to be Raised’. The District Court’s ruling compels both a ‘de novo’ and ‘abuse of discretion’ review by the Court of Appeals.

The Smithsonian Institution’s entity status ‘definition’ is the critical issue at the heart of the instant case since it is the basis for the ‘Government Speech’ theory and arguments of Appellees and the District Court’s ruling which have abridged Appellant’s 1st and 5th Amendment to the U.S. Constitution ‘Free Speech’, ‘property’ and freedom from discrimination rights.

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Entity Status Issues

(1) Whether the Smithsonian Institution is a charitable public trust merely ‘run’ by the Federal Government (Trust Instrumentality) as ‘trustee’, or the Smithsonian Institution is actually part of the Federal Government as a “national museum” and thus ‘is’ the government “..through and through”? (District Court Ruling page 7, 3nd para.)

(2) Whether the Smithsonian can exercise ‘government speech’ powers whilst at the same time as the District Court noted “…lacks both the ‘authority’ necessary for it to qualify as an “authority of the government of the United States” under [5 U.S.C.] § 551(1) [Administrative Procedure Act] and the executive department status necessary under [5 U.S.C.] § 552(f) [Freedom of Information Act].” Dong v. Smithsonian Inst., 125 F.3d 877, 883 (D.C. Cir. 1997).”? (District Court Decision Page 8, para 2)

(3) Whether the District Court abused its discretion and chose to ignore the fact that in LeBron v. Amtrak there was a complete absence of the ‘government speech’ doctrine argument used as a defense for the actions of Amtrak against LeBron, since in principal the issues are very similar to the instant case.

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(4) Whether Amtrak, a federal instrumentality created for a specific government purpose does not speak for the government, exercising government speech in its selection of advertising ‘content’ which is displayed on its ‘Spectacular’ screen at Penn Station as opposed to the Smithsonian Institution, a charitable public trust created by the will of a foreign private citizen and not for a government objective, in which the government is merely the trustee and yet according to the District Court’s ruling does speak for the government?

(District Court Ruling

page 9, para. 2)

(5) Whether the Will of James Smithson is controlling or has, does and can ‘Government Speech’ even exist in the instant case and override the Will of Smithson, rendering the Will ‘null and void’ without a lawful and legal dissolution of the trust according to the Uniform Trust Code for the District of Columbia, Section 19-1304.10-16? (District Court Ruling page. 9, 2nd para.)

(6) Whether the private will of a private foreign citizen expressed in a ‘last will and testament’ can be dissolved once the terms of the trust have been accepted by the trustee, in this case the United States Congress as ruled by the District Court? (District Court Ruling page 9, 2nd para.)

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(7) Whether the fact that the Smithsonian Institution, named according to the terms of the Will of James Smithson can maintain the designated name of a private foreign citizen and his last will an testament and yet not be subject to the terms of Smithson will in which the name was a prerequisite condition of acceptance of the bequest?

(8) Whether the Smithsonian Institution, which by its very name invokes the private terms of the Smithson will, establishing the prerequisite compliance by the representatives of the ‘United States’, the beneficiary of the will, with the will in order to receive the financial bequest only in trust as trustee, can remain in such status and at the same time become a ‘federal agency’ which exercises ‘government speech’?

(9) Whether title to the ‘property’ of James Smithson held in trust by the Federal Government alone or is held equitably with trust beneficiaries, the People of the United States? (District Court Ruling page 9, 2nd para.)

(10) Whether Smithsonian trustee/officer/employee actions do or do not constitute ‘Government Speech’ since the United States is merely the ‘trustee’ of the personal and private will of James Smithson, a foreigner and private citizen, whose bequest to the

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American People created a public charitable trust that the Federal Government as fiduciary, merely manages?

(11) Whether all actions and decisions carried out by federal government officials in the role of ‘trustee’ are and can only be in the capacity as ‘trustee’, ‘functional fiduciary’ or ‘trustee delegate’ of the private will of James Smithson.

(12) Whether Federal officers as trustees or directors/employees of the ‘Smithsonian Institution’, who deliberately discriminate against, silence, oppress or violate the free expression of ‘active’ Smithson trust ‘Special Exception’ status, participating ‘charitable’ trust ‘beneficiaries’ and ‘citizens’ of the United States, violate the 1st Amendment ‘Free Speech’ clause of the United States Constitution, since the Smithsonian Institution is a ‘trust instrumentality’ of the Federal Government.

(13) Whether Federal officers as trustees or directors/employees of the ‘Smithsonian Institution’, who because of hostile political animus and bias deliberately violate the Will of James Smithson, the Board of Regents to the Smithsonian Institution’s standards, procedures and ethics in order to bar and refuse participation in the Will of James Smithson to a ‘Special Exception’ Smithson trust participating beneficiary deprive such

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of their lawful participation in the trust appointed ‘property’ thus violating the ‘Deprivation of… property without the due process of law’ clause in the 5th Amendment to the United States Constitution.

(14) Whether Federal officers as trustees or directors/employees of the ‘Smithsonian Institution’, who accept, celebrate and promote individuals and their ‘artistic political free speech/expression’ about political content that fits the prevailing liberal/leftist bias at the Smithsonian Institution and yet reject ‘similarly situated’ ‘pro-Trump, conservative, artistic political free speech/expression’ because of hostile political animus and bias violates the ‘equal protection under the law’ clause in the 5th Amendment to the United States Constitution regarding ‘Viewpoint discrimination’.

(15) Whether the Smithsonian Institution, its trustees/Board of Regents, officers and employees are politically accountable to the electorate and can be changed by the voting public when the People disagree with the so called ‘government speech’?

(District Court Decision page 10, para. 1,2)

(16) Whether examples of voter defenestration exists regarding Smithsonian Officials since the District Court says; “…voters could defenestrate seven…” and yet fails to cite any examples of

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when the People of the United States, the Beneficiaries of the Smithson trust removed a Smithsonian Official.

(17) Whether the District Court abused its discretion by making such a statement to bolster it’s erroneous ruling, for without such an unsupported conclusion, the District Court’s ‘government entity’ and ‘government speech’ ruling fails since it is obvious that the Smithsonian Institution is a public charitable trust simply run by people who happen to be government officials and representatives but who do not exercise any authority from their elected offices, simply because they are merely acting as ‘trustees’ of a charitable trust who also happen to be elected officials?

(18)Whether the Federal funding of the Smithsonian Institution has any bearing on its entity status, i.e. giving the Smithsonian Institution government speech powers, as with Amtrak, a federally created and funded instrumentality and yet Amtrak does not speak for the federal government even though it too has government appointed leadership etc.? (District Court Decision page 10, para. 2)

(19) Whether lumping the Smithsonian Institution in with the defendants in PETA, Summum, Finley, Pulphus and Walker (District Court Decision pages11-13) in either past rulings, decisions or

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this present decision and even arguments by Appellees is a gross error since equating and treating all the entities as identical as to their entity ‘status’ as all ‘government’ agencies, is deceptive since they are all similar except for the Smithsonian Institution and in doing this has created the illusion that the Smithsonian is something that it is not?

(20) Whether the Supreme Court’s ‘government speech’ test in Pulphus (District Court Decision page 11 para. 3 – page 14 para.

4) applied in the District Court’s ruling as “fatal to Mr. Raven’s First Amendment claims” is even applicable to the Smithsonian Institution since it is a completely different entity where the government is merely the trustee of a charitable public trust which is similar to the District Court’s earlier cited example of LeBron v. Amtrak, which is the appropriate comparison as to entity status since they are both instrumentalities and not politically accountable agencies of the federal government, and thus further neutralizing the District Court’s ruling is that fact that the Smithsonian lacks the authority necessary to qualify as an agency under the Agency Procedure Act and Freedom of Information Act in striking contrast to the fact that the Smithsonian does qualify under the Federal Tort Claims Act rendering the government run ‘trust’ and its officials and employees accountable for their torts of negligence which would support the claim that the Smithsonian is

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accountable for breaches of trust and violations of the 1st and 5th Amendments to the United States Constitution?

(21) Whether the District Court’s decision condones arbitrary and capricious behavior by a government official since validating Appellee’s politically hostile, egregious, unlawful and biased actions by ignoring the fact that the Smithsonian National Portrait Gallery’s selection of portraits is governed by a congressionally appointed board of regents/art commission and established written procedures and standards which were completely ignored and violated by Appellees, is now legitimized by the District Court

(District Court Decisions page 14, para.

1) by citing the portion in PETA that supports the art commission’s “arbitrary or view point based decisions…” since the art commission in PETA had determined beforehand the standards of acceptance(the view point) for that art exhibition and lawfully applied their standards in their consideration, acceptance or rejection of the submitted art work, in contrast to the instant case where Appellees completely ignored the existing commission’s standards, twisted the existing standards to suit Appellees bias, invented her own ‘on the spot’ arbitrary standard and lied, insulted and aggressively in an attempt to intimidate Appellant, appealed to the Appellee’s power and authority as Director of the Smithsonian National Portrait Gallery when confronted with facts, all seemingly acts of

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tyranny, which the District Court has found a way to legitimize and in doing so strip Appellant of his First Amendment free speech rights by discriminating against Appellant’s political viewpoint since Appellees had accepted and displayed other political viewpoints which is why PETA does not apply since no comparable political viewpoints had been accepted and displayed in PETA, PETA just failed to abide by the standards? (District Court Decisions page 14, para. 1)

(22) Whether the District Court’s decision has abused its discretion by illicitly depriving Appellant of his lawfully protected property interest, by denying Smithsonian Trust entity status, denying the trust has beneficiaries, denying those beneficiaries have equitable property rights giving trust beneficiaries the right to participate in the Smithson trust according to the terms of the will of Smithson since beneficiaries hold equitable title to the Smithson property as in the cases of the administration of Indian Land Trusts where the Federal government holds equitable title to Indian trust lands along with the beneficiaries(District Court Decision page 15, paras. 2,3): ““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

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actually holding title entirely for the benefit and use of the Indian owners.” Page 126 (Bold added.) American Indian Policy – Trust Responsibility, Page 128 (Department of the Interior.gov) Page 126.

(23) Whether the District Court abused its discretion by concluding that the standards for portraiture acceptance at the Smithsonian National Portrait Gallery were “general” in nature, which relinquished Appellees from their fiduciary and constitutional duties and in short minimized and justified their illicit actions by citing 20 U.S.C. 75 (e) but ignoring 20 USC 75(c) where it clearly defines the creation of the National Portrait Gallery ‘Commission’ who was given the ‘power to make specific rules and regulations which it did in 1962 at which time the Commission established specific standards for portraiture acceptance at the National Portrait Gallery which Appellees twisted, partially cited, ignored and invented their own and then lied when confronted by facts relating to such standards in the off the record, arbitrary and capricious 11 minute phone call made by Appellees to Appellant, and in ruling this way the District Court stripped Appellant of his lawful ‘right’ to participate in the Smithson trust according to the congressionally appointed Board of Regents and the Commission’s written standards for portraiture consideration and acceptance?

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(24) Whether the Smithsonian’s “complete discretion in choosing portraits” according to the District Court’s ruling includes completely ignoring, twisting, inventing arbitrary standards, lying and insulting Smithson trust active beneficiary applicants as opposed to meticulously and professionally processing and considering the lawfully constituted written standards, procedures and ethics of the Smithsonian Institution in the light of every and any application to participate in the Smithson trust? (District Court Decision Page 15, para. 2)

(25) Whether the District Court abused its discretion by denying Appellant his 5th Amendment rights to equal protection under the law because of the District Court’s erroneous government entity definition? (District Court Decision page 16, para 3.) when it is crystal clear that the Smithsonian National Portrait Gallery accepted a pro-Obama political campaign related portrait, the political free speech of both the artist and owner of the portrait for a political, in this case a clearly stated democrat political purpose specifically for the inauguration of President Obama in 2009 and then rejected a pro-Trump portrait for the same politically expressive artistic event which is the inauguration of the President of the United States of America in 2017 at the National Portrait Gallery for openly stated political reasons, as the gallery director objected to the

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political speech, content and viewpoint of the pro Trump portrait.

(26) Whether the Biven’s remedy should be extended to the ‘preeminent’ first Amendment ‘free speech’ clause of the United States Constitution, as a new context, for obvious deliberate and willful violations of Appellant’s free speech rights?

(27) Whether the Biven’s remedy should be extended to the 5th Amendment ‘deprivation of …property’ clause of the United States Constitution as a new context for deliberate deprivation of property to a ‘Special Exception’ charitable trust beneficiary.

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

(28) Whether the Biven’s remedy should be extended for 5th Amendment, equal protection under the law ‘view point discrimination’, since gender ‘discrimination’ was sufficient cause for Biven’s to be extended in in Davis v. Passman which parallels the instant case in that the abuse of power by a

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government official caused the official to violate the constitutional rights of Appellant.

(29) Whether the District Court abused it’s discretion by ignoring Appellant’s response to Appellee’s Motion in Opposition to Appellant’s Motion to Amend his complaint with the ‘breach of trust’ claims initially under the Federal Tort Claims Act, since Appellant had filed the response requesting the District Court to allow the ‘Breach of trust’ claims to be filed under the Uniform Trust Code for the District of Columbia as the appropriate legal remedy for such claims?

(30) Whether egregious ‘breaches of fiduciary trust’ by Federal Government officials and violations of the duties of loyalty, care, impartiality etc.

under the Uniform Trust Code for the

District of Columbia constitute negligent infliction of emotional distress when inflicted upon Smithson trust beneficiaries, the People of the United States of America?

(31) Whether egregious ‘breaches of fiduciary trust’ by Federal Government officials and violations of the duties of loyalty, care, impartiality etc.

under the Uniform Trust Code for the

District of Columbia constitute violations of the U.S. Constitution.

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(32) Whether the Smithsonian Institution and its officials and employees as a charitable public trust run by the Federal Government is subject to the Uniform Trust Code for the District of Columbia and thus all breaches of fiduciary duties are both breaches of trust, punishable under the common law of trusts and also translate, since committed by federal officials into violations of the Bill of Rights under the U.S. Constitution?

Dated December 21st, 2018 Elmira, New York

Julian Raven (Pro se) 2524 County Rt. 60, Elmira, New York 14901 Tel: 607-215-8711 Email: julianmarcusraven@gmail.com

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