Smithsonian Lawsuit Appeal Appellant Julian Raven Response to DOJ's Motion for Summary Affirmance

UNITED STATES COURT OF APPEALS For the District of Columbia Circuit March 25th, 2019

Julian Marcus Raven Appellant

v.

United States of America, et al., Appellees

] ] ] ] ] ] ] ] ] ] ]

No. 18-5346

APELLANT’S RESPONSE IN OPPOSITION TO APPELLEES’ MOTION FOR SUMMARY AFFIRMANCE

To the Honorable Judges of the Court of Appeals, Appellant ‘pro se’ Julian Raven hereby presents his objections in response to Appellees’ expedited Motion For Summary Affirmance which is before the Court.

The first Smithsonian Secretary, Joseph Henry, in the very first institutional charter presented to the Smithsonian Board of Regents on December 8th, 1847 stated clearly, right at the beginning, in order that there would be no

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confusion as to the Smithsonian Institution’s entity status, in articles 2 and 3 of ‘The Programme of Organization’ that: “2. …The Government of the United States is merely a trustee to carry out the design of the testator.

3. The institution is NOT a national establishment, as is frequently supposed, but the establishment of an individual, and is to bear and perpetuate his name.” (Bold and Caps added.)

The Smithsonian Board of Regents ratified this charter, the trustees of the Smithson will and trust on December 13th 1847 and has been remembered ever since on the Smithsonian yearly calendar. The Board of Regents at that time was comprised by congressional law of; “the Vice-President…, the Chief Justice…, and the Mayor of the City of Washington,…three members of the Senate, and three members of the House of Representatives; together with six other persons, other than members of Congress…” Smithsonian Act of 1846, Sec. 3.

These eminent members of the Smithsonian Institution’s Board of Regents, trustees of the Will and Trust of James Smithson, knew exactly what they were doing. They knew exactly what the Smithsonian was and was not regarding its ‘entity status’. They put their lawful vote of approval as trustees to the clause which states that: “The Institution is NOT a national establishment, as is frequently supposed.” (Bold and Caps added.)

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The ongoing erroneous presupposition, as to the Smithsonian’s ‘entity status’, which obviously existed from the very founding of the Smithsonian, thus provoked then Secretary Joseph Henry’s statutory recommendation, admonition and safeguard and the subsequent Smithsonian Board of Regent’s ratification by a legally binding vote!

PERPETUATED PRESUPPOSITIONAL ERROR The District Court’s decision and the arguments made by Appellees are fundamentally and fatally flawed. The District Court’s decision perpetuates the ongoing fallacy that “the Smithsonian Institution is a government institution through and through.” District Court Decision, Page 10, para 2. and as such summary affirmance is totally inappropriate.

Appellees’ Motion for Summary Affirmance because “…the merits of Appellees’ claims “are so clear that expedited action is justified” and “no benefit will be gained from further briefing and argument of the issues presented”” is an affront to justice and this motion must be immediately denied. The implications of the instant case have far reaching constitutional, common law and institutional operating ramifications that demand a decision by the Appeals Court as to the Smithsonian Institution’s ‘entity status’, the controlling issue in this case. Further reason to reject the Motion

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for Summary Affirmance is the fact that the instant case is without precedent and is of national importance.

SMITHSONIAN ENTITY STATUS CONFUSION Congress itself has clearly defined the entity status of the Smithsonian Institution as a trust, and the role of the United States as trustee and nothing more, in the very Smithsonian Act of 1846: “James Smithson…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) In The Congressional Serial Set, “The Smithsonian Institution: Documents Relative to its History and Origin.” by The House of Representatives, 56th Congress, we read on page III a statement by Smithsonian Secretary S.P. Langley: “The Smithsonian Institution is an establishment based upon the private foundation of James Smithson, a British subject, which was accepted by the United States in Trust….While therefore, it is a private foundation, of which the Government is trustee, it has an extensive legislative history.”(Bold added.)

The Department of Justice, representing Appellees in its very own archives has specifically spoken to the status issue:

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“You have asked for the opinion of this Office concerning the status of the Smithsonian Institution…The precise nature of that relationship, however, is the subject of some disagreement…The Smithsonian perceives itself as “not a government agency in any ordinary use of the term, but [as] a charitable trust for the benefit of humankind whose trustee is the United States. As such, it cannot carry out the functions of any of the three branches of government… The Smithsonian further relates that “the Smithson charitable trust is not part of the government itself. The basic legal nature of the Institution as a unique trust instrumentality of the United States separate from the three main branches of government …Chief Justice Taft, speaking as Chancellor of the Smithsonian Board of Regents, also asserted “that the Smithsonian Institution is not, and never has been considered a government bureau. It is a private institution under the guardianship of the Government.” Taft, https://www.justice.gov/file/24096/download And yet with these overwhelmingly clear statements relating to the Smithsonian’s ‘entity status’, the District Court ruled in agreement with Appellees’ arguments that the Smithsonian Institution somehow exercises Federal Government agency speech powers and yet the DOJ declares the Smithsonian “…cannot carry out the functions of any of the three branches of government” i.d. and is “separate” from the three branches of government” i.d.. Also that We The People have no First Amendment free speech rights within the “private foundation” i.d. and “private institution” i.d. that was given to The People? Nothing like a ‘reductio ad absurdum’!

In the Independent Review Committee Report (IRC), carried out by experts in the non-profit foundation field, commissioned by the Board of Regents in 2007 to investigate allegations of corruption at the Smithsonian Institution,

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the IRC 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…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 THE WILL OF JAMES SMITHSON IS QUINTISSENTIAL 1ST AMENDMENT PROTECTED FREE SPEECH The last will and testament, a deeply personal, private and individual mandate to be accepted only in trust, of a now deceased British private citizen can never be converted into a government objective or government speech unless the will specifically dictated such, i.e. the will would have said “I give the whole of my property to the United States to do with it as they please…” The District Court’s ruling in order to create the grounds for the government speech theory and decision, denying Appellant’s free speech, had to declare that; “…even if “the increase and diffusion of knowledge” was originally a private goal, Congress ratified it, and the United States now has complete discretion in to fulfill it.” District Court Decision, Page 9, Para 2.

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The District Court is in error, it is not the United States but the United States acting in the role of trustee of a private will. Congress in accepting the fiduciary responsibility as trustee would have complete discretion on how to fulfill the private will, establishing a governing Board of Regents(trustees) who would then create a body of standards, ethics and procedures of how in their mind as fiduciary trustees, not the United States, it was best to fulfill the will of Smithson.

This discretionary responsibility was stated in the “Programme of Organization” 4-7 “4. The objects of the institution are 1st, to increase, and second to diffuse knowledge among men.

5. These two objects should not be confounded with one another. The first is to increase 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 efficiently diffused among men by means of the press.”

All of these self imposed guiding fiduciary clauses were violated by Appellees in violation of the ratified Programme of Organization and in violation of Congress’ discretionary duty as trustee. Every decision they have made has been in opposition to the increase and diffusion of knowledge. That can be seen by the fact that instead of processing Appellant’s politically and historically relevant portrait through trustee

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created written and established procedures and according to trustee created written standards of portraiture acceptance, the application was arbitrarily thrown out and a 1989 dated, irrelevant photo of Donald Trump from the archives was used in place of an increase and diffusion of knowledge. They might as well have just hung a portrait of Donald Trump as a baby, such was the insignificance of the absurd display, deliberately denying and violating The People’s will, American Pictorial History’s record, Congressionally appointed Board of Regents approved written standards, ethics and procedures and the controlling Will of James Smithson, all because of antiTrump animus! Incontrovertible breaches of trust?

If as the District Court ruled, the private will ceased to be so, the Smithsonian Institution would have ceased to be called the Smithsonian Institution, which remains part of the conditions of the private will of Smithson. The ‘prima facie’ fact that the name remains, invokes the private will and its terms and declares the private will to be private, contrary to the District Court’s ruling and thus still active and controlling as originally prescribed. The United States acting as trustee of the private will must fulfill the will according to trustee created by-laws and common law trust

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principles, since the Smithsonian is a charitable trust, a “private foundation.”i.d.

What the District Court has essentially attempted is the dissolution of the will and trust and then some sort of transfer of the property of James Smithson into the formation of a federal government entity, which has never happened (Note: Violation of the separation of powers, below.) The Court’s declaration that a so-called “ratification” occurred, converting the entity status, could only have been carried out according to common law statutes in the Uniform Trust Code for the District of Columbia regarding the dissolution of trusts. The Supreme Court has declared regarding the United States acting as trustee that; “…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. United States v. Mason, 412 U.S. 391(1973): Here the Supreme Court places the actions of the United States when acting as trustee, firstly under the common law of trusts for measuring Federal trustee actions. The District Court’s decision completely bypasses the lawful procedures necessary to dissolve a trust and supposedly convert it into a government entity with a government objective in the Court’s attempt to grant the Smithsonian Institution federal government speech powers of

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which it has none, since the Smithsonian Institution is a “private foundation.”i.d., “not a national establishment” i.d. and “is not, and never has been considered a government bureau.” i.d.

CONSTITUTIONAL SEPARATION OF POWERS VIOLATED By attributing Federal Government speech powers to the Smithsonian Institution, the District Court has abused its discretion and violated the Separation of Powers clearly defined in the 1st, 2nd and 3rd article of the United States Constitution.

The Board of Regents is comprised of the Vice President, The Chief Justice and 3 members of Congress and 3 members of the Senate. By attributing government speech powers to the Smithsonian Institution, this ruling creates a de facto independent federal agency comprised of a merger of the three branches of government since now according to the District Court these three branches of government speak with one voice!

Rather than side with Appellant who argued in Plaintiff’s Motion in Opposition to Defendants’ Motion to Dismiss that the elected officials leave their robes, elected offices and powers at the door to the Smithsonian board room and simply act as trustees of a private trust similar to trustees of

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a local church, the District Court has abused its discretion and in essence created a new branch of the federal government comprised of a merger of the Executive, the Legislative and the Judicial branches in violation of the separation of powers defined in the U.S. Constitution.

DISTRICT COURT RULING IGNORES APPELLANT’S RESPONSE & DENIES MOTION TO AMEND COMLAINT The District Court’s denied Appellant’s motion to amend ‘Plaintiff’s Complaint’ and ignored Appellant’s response to Appellees’ Motion in Opposition to Plaintiff’s Motion To Amend Complaint With FTCA Claims.

Appellant had discovered all of the relevant case law that supported the claims for breaches of trust in the FTCA claims and that the Uniform Trust Code for the District of Columbia was the appropriate legal remedy rather than the Federal Tort Claims Act. Yet the District Court made its ruling without even considering the docketed pleading. (Please see attached filing.)

Granting Appellant leave to amend his complaint and correctly adjudicating Appellant’s claims against the District of Columbia’s Uniform Trust Code should have ensured a breach of trust decision, creating the basis for constitutional violations. Appellant should have been granted leave to amend his complaint as motioned since “The court should freely give leave when

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justice so requires” FRCP 15(a)2 and thus the District Court’s decision must be overturned.

Appellees’ never denied Appellant’s claims regarding Director Sajet’s actions condoned by Dr. Richard Kurin and thus the Board of Regents.

Even the District Court’s condemnation of Appellees’ actions when it said “Even accepting the worst possible reading…what they did amounted to a professional insult, though partisan and undeserved against Mr. Raven and his work. Odious they may be, but insults of this kind are not actionable torts under District of Columbia Law” DCD Page 20. And yet the District Court ignored Appellant’s clearly laid out case under the Uniform Trust Code for the District of Columbia for breaches of trust, which are clearly actionable under District of Columbia law.

The Supreme Court has made it clear that “ There is no doubt that the United States serves in a fiduciary capacity with respect to these Indians(artists, added) and that, as such, it is duty bound to exercise great care in administering its trust.” United States V. Mason 412 U.S. 391, 397(1973).

“The Federal Government is a fiduciary and as such is judged by the most exacting fiduciary standards.” Seminole Nation v. United States, 316 U.S. 297(N.D. Cal. 1973) “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(artists, added.), should therefore be judged by the most exacting fiduciary standards.” Seminole Nation v. United States, 316 U.S. 297(N.D. Cal. 1973)

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Appellees lied, invented biased and arbitrary standards in order to refuse Appellant’s painting, twisted and violated existing written trust standards of portraiture acceptance, ethics and procedure, precipitated an 11 minute off the record hostile argument having called Appellant directly by phone, silenced Appellant’s political free speech, evinced clear anti-Trump animus, insulted Appellant’s work and then in true tyrannical fashion declared Appellees’ power as the Smithsonian National Portrait Gallery Director in an arbitrary refusal to allow the application to proceed and taunted Appellant by saying “you can appeal it all you want…” before hanging up the phone.

And this all constitutes a simple odious “professional insult” i.d. according to the District Court? In striking contrast we read; “this means that it(The United States, added.) must act with good faith and utter loyalty to the best interests of the (Smithson trust. added.) beneficiary.” Manchester Band of Pomo Indians Inc. v. United States, 363 F. Supp. 1238(N.D. Cal. 1973) and in criminal code:18 U.S. Code § 1001

THE UNIFORM TRUST CODE FOR THE DISTRICT OF COLUMBIA 1. The Duty to Administer Trust: “…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.

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2. The Duty of loyalty: “(a) A trustee shall administer the trust solely in the interests of the beneficiaries” § 19–1308.02.

3. The Duty of Impartiality § 19–1308.03.

4. The Duty of Prudent Administration: “…the trustee shall exercise reasonable care, skill, and caution.” § 19–1308.04.

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 STANDING TO SUE SMITHSONIAN TRUSTEES AND 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: “…if a gift is made … for the public benefit, such bequest is a charity and is to be governed by the rules applicable to charitable trusts.” Tarver v.

Weaver, 130 So. 209, 666 (Ala. 1930) “So also are trusts for the advancement of knowledge by research or otherwise.” Scott And Ascher on Trusts, Vol 6 pages 2520, 2521 “A trust for the promotion of public education is plainly charitable.” Scott and Ascher on Trusts, Vol 6, page 2528 PRIVATE INDIVIDUALS WHO HAVE A SPECIAL INTEREST MAY BRING SUITS TO ENFORCE CHARITABLE TRUSTS “…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) “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.)

EDES HOME TRUST AND THE SMITHSONIAN INSTITUTION CHARTERED BY CONGRESS “…Congress chartered the Edes Home, providing for its perpetual succession" Hooker v. Edes Home, 579 A.2d 608, 609 (D.C. 1990) 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) “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)

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ARTISTS FULFILL - THE ‘SPECIAL INTEREST’ EXCEPTION 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 and caps added.)

“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. Hooker v. Edes Home, 579 A.2d 608, 612 (D.C. 1990) ARTISTS 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.” Hooker v. Edes Home, 579 A.2d 608, 614 (D.C. 1990) COLLECTIVE INTERESTS OF ARTISTS 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)

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CORRECT ENTITY STATUS DEFINITION IS THE BASIS FOR ESTABLISHING CONSTITUTIONAL CLAIMS Appellant’s 1st and 5th Amendment claims follow as actionable having correctly defined the Smithsonian Institution’s entity status. First Amendment political free speech violations are obvious since the Smithsonian had hung political free speech from left wing applicants and candidates, especially the Obama ‘Hope’ poster for both the 2019 and 2013 inaugurations. Appellant’s art was rejected as “too political”. If the government allows any political speech/viewpoints it must allow all political speech, it cannot discriminate.

LeBron v. National Railroad Passenger Corporation 513 U.S. 374(1995) is the closest Supreme Court decision that reflects on the constitutional constraints over federal instrumentalities like the Smithsonian. Strangely in LeBron, the government argued that Amtrak was not part of the federal government at all, in its attempt to shirk its constitutional duties, it failed.

In contrast with the instant case, the Smithsonian is being presented as a full blooded federal agency of the federal government with so much agency power that it actually speaks for the federal government to exempt the Smithsonian from 1st Amendment constitutional constraints.

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Since LeBron establishes Supreme Court judicial guidance validating Appellant’s claims for constitutional violations by a federal instrumentality, even more so when the ‘private institution’ I.d. is run by the federal government. In that situation free speech violations are all the more likely to occur if and when the United States and its officers oversteps its role as “merely” i.d. trustee and begins to silence speech with which it disagrees within the ‘private foundation’ I.d. and abuse trust beneficiaries as in the instant case. Without constitutional constraints there would be no end to the abuses.

The instant case being without precedent is the necessary requirement to finally settle the issues presented and to apply the Constitution that will restrain any future usurpations by officers of the federal government who work at the Smithsonian Institution.

5th Amendment deprivation of property without the due process of law can be clearly seen in Hooker v. Edes Home, 579 A.2d 608, 615 (D.C. 1990). And although title to trust property is held equitably by the trustees and the beneficiaries, public trusts without named beneficiaries are treated differently.

But the Hooker ruling clearly established property rights for the ‘special

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interest’ trust beneficiaries, in this case artists who are specifically named as a limited class of people who specifically participate in the Smithson National Portrait Gallery. The ruling in Hooker cannot be based on some expectation of participation but rather a legally sound justification for extending participatory property rights by naming the ‘special exception’ class.

5th Amendment equal protection under the law clause of the 5th and 14th Amendments is clearly actionable in this case since other equally situated individuals of the public had their art shown at their requests with political view points that were acceptable by the politically left leaning Smithsonian officials. In contrast Appellant’s political viewpoint was clearly discriminated against in violation of the equal protection under the law clause, when Appellant was told his speech was ‘Too political, too pro-Trump and not neutral enough’ but the democratic pro Obama and pro Hillary political posters were somehow not ‘too political’, not ‘too pro Obama or pro-Hillary’ and somehow ‘neutral enough?” “The equal protection component of the Due Process Clause thus confers on petitioner a federal constitutional right to be free from gender discrimination (or viewpoint(added.))” Davis v. Passman 442 U.S. 228(1979) “The principle that has emerged from our cases "is that the First Amendment forbids the government to regulate speech in ways that favor some

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viewpoints or ideas at the expense of others." Lamb’s Chapel v. Center Moriches School 508 U.S. 384 (1993) BIVENS REMEDY FOR MONETARY DAMAGES FOR CONSTITUTIONAL VIOLATIONS Having established the legal grounds for breaches of trust by federal officers, the constitutional violations follow as Appellees’ actions by default violate the United States Constitution as officers of the United States.

Although Bivens is a disfavored legal remedy, it is not prohibited, that is why it exists, as the only current legal remedy available to prosecute Federal Officers for violations of the U.S. Constitution. To argue as Appellees have that Bivens should not be extended for violations of the preeminent 1st Amendment free speech clause to the U.S. Constitution is a contradiction to the very purpose of the existence of the Department of Justice. If federal officials can skate being prosecuted for violating the political free speech rights of the American People, in effect is only granting license for other federal officials to do the same as they hide behind the veil of qualified immunity.

Bivens is appropriate, justified and necessary.

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REMEDIES FOR BREACHES OF TRUST Breaches of trust are egregious actions, so much so that because of their nature are remedied by a wide variety of just common trust laws. These remedies give the Court great power in righting the wrongs.

Monetary damages for breaches of trust and mental anguish caused as a result are remedied with the 10th clause; “Order any other appropriate relief.” As was the case in Wells Fargo v. Militello where substantial monetary damages were won against Wells Fargo for the mental anguish caused by trustee breaches of trust.

The District Court’s ruling ignored the Uniform Trust Code for the District of Columbia as the appropriate remedy for breaches of trust and for the monetary and compensatory legal scheme available to grant relief to Appellant. § 19–1310.01. of the Uniform Trust Code of the District of Columbia: Remedies for breach of trust. (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;

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(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.

QUALIFIED IMMUNITY Shielding federal officers, fiduciary trustees and trustee delegates behind qualified immunity when the District Court’s ruling condemns Appellees’ actions is an affront to justice. Qualified immunity protects officials who make reasonable but mistaken judgments. Appellees have never denied or refuted Appellant’s claims of political animus and anti trump bias, of lying, silencing Appellant’s free speech, of inventing arbitrary standards, of twisting existing written codified standards, of willfully disparaging Appellant’s work or even of the tyranny of taunting Appellant with a declaration of absolute power as the Smithsonian National Portrait Gallery Director and the arbitrary denial of Appellant’s application. Dr. Richard Kurin, whom the Board of Regents appointed to adjudicate Appellant’s appeal, ignored the appeal and “concurred” with Director Sajet’s actions. Dr. Kurin and the entire Board of Regents thus became complicit with these egregious actions! These were not reasonable but mistaken judgments!

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Shielding Appellees actions behind qualified immunity is an insult to the sacred fiduciary duty incumbent upon trustees and their delegates. It is impossible to justify any of Appellees’ actions whilst claiming to be fiduciary trustees of the Will of Smithson. Appellees’ actions were brazen breaches of fiduciary trust, abuses of power and violations of the United States Constitution.

‘I have sworn upon the alter of God, eternal hostility against all forms of tyranny over the minds of men’(Bold added.) Thomas Jefferson, somehow seems to be at odds with Appellees actions and the District Court’s ruling!

CONCLUSION It is a well known fact that the Smithsonian Institution exists for now, in a deformed and blurry legal ‘no man’s land’. The entity confusion has emboldened the present abuses and even provoked Senator Chuck Grassley to denounce the institution in 2007, in his letter to Smithsonian Chancellor John Roberts when he said; “To be blunt, I have been conducting reviews of tax-exempt organizations for a number of years and the actions of the Smithsonian Board of Regents raise as many red flags as some of the worst boards I have investigated.”

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http://www.washingtonpost.com/wpsrv/nation/documents/smithsonian/Grassleyletter.pdf Appellees’ Motion for Summary Affirmance must be denied, allowing for full briefing and oral argument to take place for the following reasons: 1. The Smithsonian Institution ‘entity status’ confusion must end.

2. The District Court’s ruling has abused its discretion and violated The Separation of Powers of the three branches of the Federal Government under the United States Constitution.

3. The District Court has abused its discretion in denying Appellant leave to amend his complaint.

4. Multiple breaches of fiduciary trust have been committed and must be prosecuted.

5. The preeminent ‘free speech’ clause of the 1st Amendment to the United States Constitution has been violated.

6. The 5th Amendment ‘Due Process’ clause to the United States Constitution has been violated.

7. The 5th Amendment ‘Equal protection under the law’ clause has been violated.

8. This case is of national importance.

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