Petition for Rehearing Denied

The Petition below to the Federal Circuit Court of Appeals was Denied by Chief Justice Sharon Prost, and two new kids Judge Chen and Judge Stoll. See the Court order 13-petition-denied Note: denial of this petition effects the precise outcome predicted long before the complaint was ever filed see the blog post Any doesn’t Mean Any Anymore

Below is the petition as submitted and denied. Note: The Court has dismissed this case for failure to state a claim. No request, in this case was ever made to Amend the Complaint. Plaintiff’s do not believe the complaint is deficient but, rather the court simply wishes to impose the Governments will with false statements and reliance on assumption rather than fact.

The Federal Courts participate in these proceedings as if they were Counsel for the Defense of the U.S. Government. There is literally no appearance of impartiality by the Federal Judiciary.

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The Panels decision conflicts with decisions of the United States Supreme Court in:

United States v. Navajo Nation, 556 U.S. 287, 290 (2009);

United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349,63 L.Ed.2d 607 (1980);

United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976);

Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 607,372 F.2d 1002, 1009 (1967));

Compagnie General Transatlantique v. United States, D.C., 21 F.2d 465, 466.(1927);

The Court of Appeals for the Federal District Opinion relies on:

Trevino v. United States, 557 F. App’x 995, 998 (Fed. Cir. 2014); Hufford v. United States, 87 Fed. Cl. 696, 702 (2009);

Plaintiffs find no indication, other than the Courts reliance and citation; these cases are binding precedent in the Federal Court of Claims or in the Federal Court of Appeals for the Federal Circuit. To the extent they are Plaintiffs seek to have them overruled.

  1. 18 U.S.C. §1964(c) is a money-mandating statute conferring jurisdiction on the Court of Federal Claims under 28 U.S.C. §1491(a)(1) based on identifiable decisions of the U.S. Supreme Court.

 The Court of Appeals states at 5 ¶2 of their Opinion:

“to the extent that Plaintiffs now argue that the RICO Act is, itself, a money-mandating statute conferring jurisdiction on the Court of Federal Claims,4 we hold that it is not.[1] See Trevino v. United States, 557 F. App’x 995, 998 (Fed. Cir. 2014); Hufford v. United States, 87 Fed. Cl. 696, 702 (2009).“ [2]

This statement of the Court presents numerous issues.

First the Court implies by this statement Plaintiffs had not previously argued RICO Act was a money-mandating statute, which is false, and evidenced by the Courts footnote 4 and fact it is specifically stated in the Complaint at Dkt item 1. p.14 ¶42(3) (Consideration)

“This statute providing a civil cause of action identifies a source of substantive law separate from the Tucker Act creating a right to monetary damages”

It was further discussed in Plaintiffs responsive reply brief Dkt. Item 7 (C) p. 20-23. Second by implication the Court appears to concede RICO is a money-mandating statute but contends its one that does not confer jurisdiction on the Court of Federal Claims.[3] The Court has then citied precedent Plaintiffs were not afforded opportunity to address. If it’s the Courts contention, the Federal Court of Claims does not have jurisdiction to hear a criminal RICO case plaintiffs would agree that’s true, however, if it’s the courts contention the Federal Court of Claims does not have jurisdiction with regards to RICO’s civil cause of action as another separate source of law mandating compensation by the Federal Government when paired with the Tucker act; Plaintiffs would argue that’s not in accordance with the Court of Federal Claims mandated jurisdiction under 28 U.S.C. §1491(a)(1), or with the Supreme Courts interpretations which Plaintiffs relied on in filing the complaint. Plaintiffs Complaint alleges Jurisdiction under the Tucker Act of 1887, codified at 28 U.S.C. §1491(a)(1), which allows the Court of Claims to entertain claims against the United States “founded either upon the Constitution, or any Act of Congress. 18 U.S.C §1964(c) is an act of Congress and a Federal statute. The Supreme Court stated: Justice Anton Scalia United States v. Navajo Nation, 556 U.S. 287, 290 (2009);

““Neither the Tucker Act nor the Indian Tucker Act creates substantive rights; they are simply jurisdictional provisions that operate to waive sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts).” Quoting United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) “The other source of law need not explicitly provide that the right or duty it creates is enforceable through a suit for damages, but it triggers liability only if it “`can fairly be interpreted as mandating compensation by the Federal Government.” (quoting Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967)) [4]

The court must recognize that in District court case 4:13-cv-00054 JLK; while liability usually lies with a third party defendant in a prosecution under 18 U.S.C. §1964(c), The liability in case 4:13-cv-00054 JLK and consequently this instant case lies with the U.S. Government. The U.S. Government was rightfully the defendant in the RICO civil suit filed in a Federal Court of appropriate jurisdiction. The court as agent / trustee for the U.S. Government and We The People, converted the terms of agreement to become judge, jury, and defendant, dismissing its own case without due process of law in violation of Plaintiffs procedural rights. The Government in this case is liable for damages as both Defendant and as agent / trustee, which breached its fiduciary duty of care with regards to the Plaintiffs procedural rights.[5]

Justice Blackmum United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976);

“The Tucker Act is merely jurisdictional, and grant of a right of action must be made with specificity. The respondents do not rest their claims upon a contract; neither do they seek the return of money paid by them to the Government. It follows that the asserted entitlement to money damages depends upon whether any federal statute “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.[6]

In this instant case Plaintiffs have rested their claims upon a contract created with the grant of a private cause of action and although, they do not seek return of money paid by them to the Government, they have asserted entitlement to money damages based upon substantive rights conveyed to the plaintiffs by congressional grant with the evocation of federal statute 18 U.S.C. §1964(c) in case 4:15-cv-00054-JLK. When the Federal Government is defendant in a RICO case the money mandate of the statute is the liability of the Federal Government and the Federal Government is additionally liable as agent / trustee when breaching its duty of care.

Judge Davis Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967));

“But it is not every claim involving or invoking the Constitution, a federal statute, or a regulation which is cognizable here. The claim must, of course, be for money.

“In the second group, where no such payment has been made, the allegation must be that the particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum” [7]

Plaintiffs have from the beginning maintained the particular provision of law relied upon 18 U.S.C. 1964(c) expressly granted them the right to treble damages, attorney’s fees, and court cost i.e. to be paid, a certain sum of money-mandated compensatory damages, that the promise (Offer) of these substantive rights to property was conveyed by Congresses explicit grant of a civil cause of action with 18 U.S.C §1964, a grant, which conveyed the promises (offer)[8] of those damages by the filing of a complaint under 18 U.S.C. §1964(c). That this particular provision of law relied upon conveyed the promise an express written offer to Plaintiffs who met the stated terms of qualification, adhered to terms of performance, and anticipated assuming the position of a Private Attorney General for the prosecution of a US Government operated RICO enterprise. Justice Aufustus Hand Compagnie General Transatlantique v. United States, D.C., 21 F.2d 465, 466,(1927).

 “* * *. To limit the recovery in cases `founded’ upon a law of Congress to cases where the law provides in terms for a recovery would make that provision of the Tucker Act almost entirely unavailable, because it would allow recovery only in cases where laws other than the Tucker Act already created a right of recovery. `Founded’ must therefore mean reasonably involving the application of a law of Congress. * * *” [9]

 The courts findings the RICO Act does not confer jurisdiction is correct however, the court has jurisdiction under 28 U.S.C. §1491(a)(1) which says founded upon any Act of Congress and under the Supreme Courts interpretations of that Statute a RICO’s Civil Cause of Action filed against the U.S. Government creates a reasonable right of recovery from the Federal Government.

As Justice Scalia conveys other sources of law (e.g., statutes or contracts) triggering liability if it can fairly be interpreted as mandating compensation by the Federal Government. Justice Blackmum entitlement to money damages confers where “any” federal statute can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained. Judge Davis the allegation must be the particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum. Justice Aufustus founded means reasonably involving the application of a law of Congress.

18 U.S.C. §1964(c) is a Federal statute (a law of Congress) granting to a private citizen, meeting stated requirements, the mandated promise of treble damages, attorney fees, and court cost, for accepting the Governments offer of compensation in exchange for prosecuting a criminal case in the publics interest. When the Federal Government is the defendant in a criminal RICO case its fair to interpret the statute as expressly mandating compensation of a certain sum from the Federal Government. Furthermore, as agent / trustee of the U.S. Government, which breached its duty of care in the prosecution of a Government Agency, the Federal Government becomes libel for the full potential benefit of a successful prosecution.

The Courts reliance on Trevino v. United States, 557 F. App’x 995, 998 (Fed. Cir. 2014); and Hufford v. United States, 87 Fed. Cl. 696, 702 (2009).“ is Misapprehended; neither of these cases involved a breach of contract or takings claim, for a specific performance failure, where the RICO statue had been evoked in an appropriate jurisdiction. Neither of these cases looked at RICO as another source of law mandating compensation by the Federal Government on which a breach of contract or taking claim under the Tucker act was founded. Neither of these cases looked at a civil action under the RICO statute.

However, if its the courts contention 18 U.S.C. §1964(c) does not fall within the Courts jurisdiction Plaintiffs challenge such an interpretation as not in accordance with the jurisdictional mandate for 28 U.S.C. §1491(a)(1) nor in accordance with Supreme Court precedential interpretation of the jurisdiction conferred on the Court as discussed supra.

To the extent Hufford v. United States, 87 Fed. Cl. 696, 702 (2009) is precedential opinion in the Federal Circuit which was relied on in Trevino v. United States, 557 F. App’x 995, 998 (Fed. Cir. 2014). Plaintiffs would ask to have this precedent overruled by the Federal Circuit. The Court stated its justification in Hufford v. United States, 87 Fed. Cl. 696, 702 (2009) at p.5 B. “The Court Lacks Jurisdiction Over Plaintiff’s Criminal Claims”

“This court has no jurisdiction over RICO claims, because RICO is a criminal statute.” And excluded 18 U.S.C. §1964(c) by specifically referencing “18 U.S.C. §§1961- 62”

In Trevino v. United States, 557 F. App’x 995, 998 (Fed. Cir. 2014) The Court stated:

“These claims do not fall within the court’s jurisdiction as defined by the Tucker Act because none of those statutes or constitutional provisions mandate the payment of money. See Hufford v. United States, 87 Fed. Cl. 696, 702 (2009) (holding that the Court of Federal Claims lacks jurisdiction over RICO claims).”

In Hufford v. United States the Court found it-lacked jurisdiction because RICO was a criminal statute and specified §§1961- 62, however, 18 U.S.C §1964(c) grants a “Civil” cause of action not “Criminal” a civil cause where the United States was defendant. The contention the Court lacks jurisdiction is inconsistent with Supreme Court interpretations of the court of Federal Claims jurisdictional mandate under 28 U.S.C. §1491(a)(1) as discussed supra. If the Federal Court of Appeals has found as Plaintiffs consistently argued 18 U.S.C. §1964(c) is a Federal Statute mandating compensatory damages for economic injuries i.e. a money-mandating statute see Dkt. Item 7 (C ) p. 20-23, and Plaintiffs maintain it is. Then it would fall within the Courts jurisdiction and the misapprehended conclusion of Trevino v. United States, 557 F. App’x 995, 998 (Fed. Cir. 2014). The Statute does not “mandate the payment of money” is false.

  1. 18 U.S.C. §1964(c) Grants a Private cause of action a clear indication the legislature intended to create private Contractual or vested rights.

The Court of Appeals states at 6 ¶2 of their Opinion.

“Plaintiffs’ allegations do not establish that any contract existed between Plaintiffs and the government. Plaintiffs’ Characterization of §1964(c) as a contract “offer” is false.” “[A]bsent some clear indication that the legislature intends to bind itself contractually, the presumption is that a law is not intended to create private contractual or vested rights” “Nothing in RICO Act suggests it was intended to function as a contract offer to private citizens.[10]

The Court of Appeals states at 4 ¶5

“ Dismissal for failure to state a claim under Rule 12(b)(6) is proper only when a plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

And at 5 ¶1.

“we must assume that all well-pled factual allegations in the complaint are true.”

However, the court has based its argument on reliance of an assumption, the presumption the legislature did not intend to bind itself contractually. The Court has assumed Plaintiffs could prove no set of facts to support the claim 18 U.S.C. §1964(c) constitutes a valid offer and that in fact the statute is intended to convey contractual private rights. Contrary to the Courts precedent in Hufford v. United States “RICO is a criminal statute.” 18 U.S.C. §1964 is the congressional “GRANT” for a “CIVIL” cause of action of criminal offenses, a clear indication Congress intended to convey to the private citizen the vested right to prosecute a criminal offense for compensation. [11]

Plaintiffs would ask the Court? How this statute conveys the right to prosecute and the compensatory damages to a private citizen if not by offering to do so? How does a Pro Se become a “Private Attorney General” for which public prosecutorial resources are deemed inadequate, a woefully painful, unusual, challenging and demanding position, without an offer from Government to do so? The term applies only to the exercise of one’s ability to pursue certain specific kinds of legal actions statutorily authorized (offered). It does not create the ability to call one’s self a “private attorney general”. Consequently, the term is only applicable to a private non-attorney citizen who has accepted the statutory offer to do so.[12]

The Senate reports on the Civil Rights Attorney’s Fees award Act of 1976 S. Rep. 94-1011 p.6 (1976) The Committee acknowledged that,

“[i]f private citizens are to be able to assert their civil rights, and if those who violate the Nation’s fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court.”

The Senate obviously intended to offer citizens, the opportunity to recover what it cost them to vindicate their rights in Court. [13]

Whether it’s a Grant, cognizable as a taking or an offer as a contract [14]neither is applicable without the Plaintiffs acceptance of the rights and promises conveyed and a Plaintiff cannot assume private attorney general status without a valid acceptance of the authorization to do so. Furthermore, the statute provides, a promise of substantial and significant benefit to the American people, the potential demise of USDA’s RICO enterprise. This Court has balanced the scales of justice with assumptions rather than fact inconsistent with the Courts procedural rule FRCP 1. They should be construed and administered to secure the “just” determination of every action.

The Courts reliance on Nat’l R.R. Passenger Corp. v. Atchison Topeka & Santa Fe Ry. Co., 470 U.S. 451, 465–66 (1985) (quoting Dodge v. Bd. of Ed., 302 U.S. 74, 79 (1937)). ).“ Is a Misapprehended assumption for injustice and to the extent the Court relies on the case as precedential Plaintiffs seek to have it overruled in this instance.

  1. Plaintiff’s claims are at bottom a request the Court of Federal Claims review whether Government violated the Plaintiffs procedural due process rights and failed faithfully to perform its agency / trustee duties effecting a breach of contract or taking of personal property.

The Court of Appeals states at 5 ¶2 of their Opinion:

“Plaintiffs’ claims are, at bottom, requests that the Court of Federal Claims review the Western District of Virginia’s decision to dismiss Plaintiffs’ earlier action.”

This is false! Plaintiffs claims are at bottom a request the Court of Federal Claims review whether Government violated the Plaintiffs procedural due process rights and failed faithfully to perform its agency / trustee duties affecting a breach of contract or taking of personal property conveyed to Plaintiffs by an act of Congress. Rights granted with specific intent to grant Plaintiffs status as a prosecutor of Government corruption, in a Government violating the fundamental laws of this Nation, in a prosecutorial void, where the Governments action aided the Government in avoiding prosecution and effected the Governments will to unconstitutionally write new law preserving the Governments corrupt objectives. [15] To the extent the court relies on Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994) Regarding this matter Plaintiffs would seek to have the precedent overruled in this instance.

Submitted by,

Christopher B Julian Pro-Se

[1] Emphasis added.

[2] The court states “Plaintiffs now argue” yet its noted in footnote 4 that plaintiffs consistently argued this point throughout the proceedings. It was in fact the DOJ who argued the RICO’s damages were not money-mandating.

[3] In all prior argument the defense argued the statute was not money mandating and the Court did never clarify it.

[4] Emphasis Altered.

[5] That Judge Jackson L. Kiser chose to deny the Plaintiffs procedural rights to aid the Governments RICO enterprise is a matter between him and the Government.

[6] Emphasis altered.

[7] Emphasis Altered.

[8] To an agrieved farmer who’s business has been wipped out by government actions the prospect of being paid a reasonable attorneys fee to prosecute the offender is a very attractive offer.

[9] Emphasis added.

[10] Emphasis added.

[11] A Pro Se would be entitled to the same Attorneys fees as a Plaintiff represented by counsel

[12] The relationship might be different if an attorney prosecuted the case for a non-attorney client in anticipation of collecting an attorney’s fees.

[13] The burden of proof in a civil case is a preponderance of the evidence.

[14] How is it appropriate for the Court to presume the legislature did not intend to bind itself contractually without allowing for the presentation of evidence to the contrary?

[15] As an Article I court, the duty of Congresses separation of powers responsibility, to hold the Federal Judiciary accountable has been conveyed to the Court of Federal Claims. The Courts Duty is to render justice against the Government in favor of citizens just as it would administer between private individuals. It just takes one bad apple corp. to spoil the whole bushel.

Up-Date 10 -8- 2016 For benefit of readers you should know that every one of the courts prior arguments were shown to be based on incongruent premise. The court did not and could not provide any argument for  accepting as true their faulty unsupportable premises. So where this argument suggest a precedent be overruled it was not without significant prior support for doing so.  The very fact the this court supported their opinion with precedent on statutes which were different from the bases of the filing and arguments shows their specific intent was to deny justice. I.e. Criminal RICO and Civil RICO are different statutes!!

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4 thoughts on “Petition for Rehearing Denied

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