Case Title: Morales, et al. v. Zavitz, et al. Case Number: 01cv01198 Judge(s): Presiding: District Judge Dee V. Benson Office: Albuquerque

----- Original Message -----
From: "Zavitz, John (USANM)"
Sent: Thursday, October 18, 2007 11:23 AM
Subject: Read: 97-266


Your message

To: Zavitz, John (USANM)
Cc: bill payne; Ayala, Joseph (LEO); alexander.morris@hq.doe.gov;
The Secretary; julia.eichhorst@ic.fbi.gov; foialo, foialo ;
gregory.pannoni@nara.gov; bill.leonard@nara.gov; art morales
Subject: 97-266
Sent: Thu, 18 Oct 2007 13:21:08 -0600

was read on Thu, 18 Oct 2007 12:23:16 -0600

The revision leaves for resolution on a case-by-case basis, considering the particular circumstances involved, the question as to when a motion for violation of Rule 11 should be served and when, if filed, it should be decided. Ordinarily the motion should be served promptly after the inappropriate paper is filed, and, if delayed too long, may be viewed as untimely. In other circumstances, it should not be served until the other party has had a reasonable opportunity for discovery. Given the “safe harbor” provisions discussed below, a party cannot delay serving its Rule 11 motion until conclusion of the case (or judicial rejection of the offending contention).

Rule 11 motions should not be made or threatened for minor, inconsequential violations of the standards prescribed by subdivision (b). They should not be employed as a discovery device or to test the legal sufficiency or efficacy of allegations in the pleadings; other motions are available for those purposes. Nor should Rule 11 motions be prepared to emphasize the merits of a party’s position, to exact an unjust settlement, to intimidate an adversary into withdrawing contentions that are fairly debatable, to increase the costs of litigation, to create a conflict of interest between attorney and client, or to seek disclosure of matters otherwise protected by the attorney-client privilege or the work-product doctrine. As under the prior rule, the court may defer its ruling (or its decision as to the identity of the persons to be sanctioned) until final resolution of the case in order to avoid immediate conflicts of interest and to reduce the disruption created if a disclosure of attorney-client communications is needed to determine whether a violation occurred or to identify the person responsible for the violation.

The rule provides that requests for sanctions must be made as a separate motion, i.e., not simply included as an additional prayer for relief contained in another motion. The motion for sanctions is not, however, to be filed until at least 21 days (or such other period as the court may set) after being served. If, during this period, the alleged violation is corrected, as by withdrawing (whether formally or informally) some allegation or contention, the motion should not be filed with the court. These provisions are intended to provide a type of “safe harbor” against motions under Rule 11 in that a party will not be subject to sanctions on the basis of another party’s motion unless, after receiving the motion, it refuses to withdraw that position or to acknowledge candidly that it does not currently have evidence to support a specified allegation. Under the former rule, parties were sometimes reluctant to abandon a questionable contention lest that be viewed as evidence of a violation of Rule 11; under the revision, the timely withdrawal of a contention will protect a party against a motion for sanctions.

To stress the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the revision provides that the “safe harbor” period begins to run only upon service of the motion. In most cases, however, counsel should be expected to give informal notice to the other party, whether in person or by a telephone call or letter, of a potential violation before proceeding to prepare and serve a Rule 11 motion.

As under former Rule 11, the filing of a motion for sanctions is itself subject to the requirements of the rule and can lead to sanctions. However, service of a cross motion under Rule 11 should rarely be needed since under the revision the court may award to the person who prevails on a motion under Rule 11—whether the movant or the target of the motion—reasonable expenses, including attorney’s fees, incurred in presenting or opposing the motion.

The power of the court to act on its own initiative is retained, but with the condition that this be done through a show cause order. This procedure provides the person with notice and an opportunity to respond. The revision provides that a monetary sanction imposed after a court-initiated show cause order be limited to a penalty payable to the court and that it be imposed only if the show cause order is issued before any voluntary dismissal or an agreement of the parties to settle the claims made by or against the litigant. Parties settling a case should not be subsequently faced with an unexpected order from the court leading to monetary sanctions that might have affected their willingness to settle or voluntarily dismiss a case. Since show cause orders will ordinarily be issued only in situations that are akin to a contempt of court, the rule does not provide a “safe harbor” to a litigant for withdrawing a claim, defense, etc., after a show cause order has been issued on the court’s own initiative. Such corrective action, however, should be taken into account in deciding what—if any—sanction to impose if, after consideration of the litigant’s response, the court concludes that a violation has occurred.

Mitchell, very likely, wrote the belows for Armijo. Judges usually don't waste their time on such tasks.

Look at this incompetent BS

As explained by the magistrate judge in dismissing plaintiff's claims against the private corporations and individuals, the Privacy Act authorizes suit only against an "agency" of the United States Government. 5 U.S.C. § 552a(a)(1)(q)(1); Parks v. IRS, 618 F.2d 677, 684 (10th Cir. 1980). In general, the United States is immune from being sued unless it consents. United States v. Sherwood, 312 U.S. 584, 586 (1941). Even when it consents, the general rule is that the Seventh Amendment does not grant a plaintiff the right to a trial by jury. Lehman v. Nakshian, 453 U.S. 156, 160 (1981). Thus, when the government does consent to being sued, the plaintiff has a right to a jury trial only when the right has been "unequivocally expressed" by Congress. Id. at 160-61. The Privacy Act is silent as to any right to a jury trial. ...

THIS MATTER comes before the Court on the Report and Recommendation for Sanctions and Striking of Documents [Doc. 95], filed herein on July 31, 2007. Plaintiffs filed their Objections [Doc. 97] to the Report and Recommendation on August 17, 2007. The Court conducted a de novo review of the Report and Recommendation and finds that it should be adopted.¹ In their objections, Plaintiffs argue that the undersigned United States District Judge lacked jurisdiction to refer this matter to a Magistrate Judge for recommended disposition, because it is not a “pretrial” matter. 28 U.S.C. § 636(b)(1) does refer to “pretrial matters.” However, “[c]ourts considering the meaning of the term ‘pretrial’ in § 636(b) have not interpreted the term literally with

---

¹Subsequent to Judge Garcia’s filing of the Report and Recommendation for Sanctions and Striking of Documents [Doc. 95], Plaintiffs filed, on August 22, 2007, two pleadings: Motion to Correct Response to Report and Recommendation for Sanctions and Striking of Documents [Doc. 98] and Motion for Extension of Time [Doc. 99].

This Court has reviewed these pleadings and determines that their substance in no way alters the Court’s analysis and consideration of the Report and Recommendation for Sanctions and Striking of Documents [Doc. 95]. The relief sought therein is denied and the pleadings are stricken from the record.

---

respect to the time of trial, but rather have interpreted the term to refer generally to matters unconnected to the issues litigated at trial.” Robinson v. Eng, 148 F.R.D. 635, 641 (D. Neb. 1993). See also, Bergeson v. Dilworth, 749 F. Supp. 1555 (D. Kan. 1990) (Magistrate Judge has authority under § 636 to impose postjudgment Rule 11 sanctions because, broadly construed, the term “pretrial matter” means any matter unrelated to the claims litigated at trial).

(b) Representations to Court.

By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,--

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

In addition, the Court has authority under 28 U.S.C. § 636(b)(3), the “additional duties” provision, to refer any matter to a Magistrate Judge so long as the Article III judge “retains the ‘ultimate responsibility for decision making in every instance.’” Colorado Bldg. & Constr. Trades Council v. B.B. Andersen Constr. Co., 879 F.2d 809, 811 (10th Cir. 1989). In this case, the District Judge has conducted the requisite de novo review and made the independent determination that sanctions are warranted. The Court notes as well that Plaintiffs are seeking relief which, if granted, would result in this case being sent back for trial; thus, the pending motions fall within the meaning of Section 636, as it is broadly interpreted by the Tenth Circuit. Thus, the Court rejects the contention that its Order of Reference [Doc. 89] was improper.

Plaintiffs also contend that two pleadings filed after the deadline for responding to the Court’s Order to Show Cause – their “Motion to Void Order of Reference for Lack of Jurisdiction” [Doc. 93], and their “Mandatory Judicial Notice and Authorities to Void Order of Reference for Lack of Jurisdiction” [Doc. 94] – “obviated any response to Garcia’s Order to Show Cause,” and that “Judge Armijo’s failure to rule on Motion to Void Order of Reference for Lack of Jurisdiction before allowing Garcia to issue REPORT AND RECOMMENDATION violated due process.” [Doc. 97, at 6].

The Court rejects this contention. The pro se pleadings [Docs. 93 and 94] do not serve to excuse the Plaintiffs’ obligations to comply with the Court’s explicit directive and order of July 6, 3 2007 [Doc. 92]. Plaintiffs were required to show cause, and they failed to respond to the Court’s Order to Show Cause within the time allotted. They argue that their response was not late because the pleadings were mailed on July 25, 2007, even though they were not filed until July 26. However, the Order to Show Cause reads: “Payne and Morales are directed to file their written responses and supporting affidavits no later than July 25, 2007.” [Doc. 92, at 3]. The deadline was for filing a response; the date of service is irrelevant. In any event, the two pleadings filed on July 26 were not responsive to the Order to Show Cause. Plaintiffs’ action in filing a motion, one day after the deadline for responding to the Order to Show Cause, is a legal nullity. In addition, the Motion to Void Order of Reference for Lack of Jurisdiction is substantively without merit. The Magistrate Judge recommended that the two pleadings filed on July 26, 2007 [Docs. 93 and 94] be among the documents to be stricken from the record, and this Court adopts that recommendation.

Plaintiffs also object to the amount of the recommended sanction, arguing that it is unprecedented. It is not. In affirming a sanction award of over $56,000 in attorney fees against a plaintiffs counsel for pursuing a case after the statute of limitations had clearly expired, the court in Merriman v. Security Ins. Co. of Hartford, 100 F.3d 1187, 1194 (5th Cir. 1996), noted that the district court must exercise its discretion “in crafting a sanction award reasonably calculated to deter litigation abuse.” While the $10,000 recommended in this case is a substantial amount, lesser sanctions imposed against these Plaintiffs in the past have not deterred their abusive conduct. Indeed, Plaintiffs continued with their campaign of filing baseless and frivolous pleadings and lawsuits unmoved by the Court’s earlier efforts to curb those filing abuses. The lesser sanctions previously imposed (see Doc. 95, pg. 11, n. 9) were insufficient to accomplish their intended purpose.

Oath of office

An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” This section does not affect other oaths required by law.

The amount recommended is not “unprecedented,” as Plaintiffs contend. See, e.g., Merriman v. Security Ins. Co. of Hartford, supra; White v. General Motors Corp., 977 F.2d 499 (10th Cir. 1992) (affirming a sanction award of $50,000 against plaintiffs attorney); Doyle v. United States, 817 F.2d 1235 (5th Cir. 1987) (affirming a total award of $38,872, representing $1,554.88 against each of 25 plaintiffs who filed a frivolous class-action lawsuit); Jennings v. Joshua Indep. Sch. Dist., 948 F.2d 194 (5th Cir. 1991) (reducing to $21,539.95 a sanction award against plaintiff and plaintiffs counsel for filing a clearly meritless case); Lapin v. United

States, 118 F.R.D. 632 (D. Haw. 1987) (awarding $28,400 to be paid to the Clerk of Court as a sanction for frivolous filings).²

Plaintiffs were warned that sanctions could be awarded, and they were given an opportunity to respond to the Order to Show Cause. They did not do so, preferring to file yet another frivolous motion, challenging the Court’s authority to refer this matter to the Magistrate Judge. In their objections, they do not claim an inability to pay the amount recommended. Indeed, Plaintiffs have been able to pay filing fees and to maintain the costs of pursuing numerous lawsuits through the years. As the Court has not been presented with any evidence of lack of ability to pay, that factor does not enter into the Court’s consideration.

Finally, Plaintiffs appear to argue that “new information” allegedly related to this lawsuit, which “recently surfaced on Wikipedia,” justifies their filing new motions six and a half years after the case was terminated. The information concerns former National Security Advisor Zbigniew

---

² The judge in Lapin v. United States referred to a study showing that “a single hour spent by a federal judge on a case costs the taxpayers approximately six hundred dollars.” He determined the amount of judge time spent dealing with plaintiffs frivolous filings, assigning $600 to in-court time and $200 to out-of court time, and came to the total sanction of over $28,000. If that method were used in this case, Plaintiffs’ sanction would likely amount to well over $100,000.

---

BrzeninskI. ³ 5 Brzezinski.3 In addition, Plaintiffs complain that among the documents which the Magistrate Judge recommended stricken was a “criminal complaint affidavit against former secretary of state Brzezinski.” Plaintiffs quote someone named “Col. Feehan,” as follows: “Failure to bring Brzezinski to justice casts a dark shadow of corruption on judicial and government branches. Further, a failure to bring Brzezinski, and others, to justice may be an invitation for retaliation by those aggrieved by what Brzezinski and others have done.” [Doc. 97, at 22-23].

This statement is typical of the veiled and indirect threats these Plaintiffs have made against judges, U.S. Attorneys and Assistant U.S. Attorneys, court officers, federal officials and employees, and a host of others who have had the misfortune of being named in the many complaints which the Plaintiffs have filed. As noted in the Report and Recommendation, these pro se litigants do little more more than heap abuse and invective on the defendants and court officers. They have accused judicial officers of being felons, of being corrupt and incompetent. For example, in this very case Payne and Morales state, “Judge Armijo over-stepped her bounds and thus demonstrated her bias or incompetence.” [Doc. 97, at 3].4 They continue to harass judicial officers by filing criminal complaints. (See, e.g., Doc. 97, “Criminal Complaint Affidavit” attached to Response as Appendix “A:”).5 While Plaintiffs are free to maintain and express their beliefs, they are not free to burden

---

³ Mr. Brzezinski was National Security Advisor under President Jimmy Carter. As yet another example of frivolous pleading, Plaintiffs are seeking to have “criminal complaints” issued against Mr. Brzezinski for alleged misinformation given concerning national security matters.

⁴ To the extent that Plaintiffs’ claim of bias with respect to Judge Armijo constitutes a veiled request that she recuse from this case, such request is denied. Plaintiffs have failed to demonstrate or establish by affidavit, or otherwise, with particularity that the undersigned judge has a bias or prejudice.

⁵ As noted in the Order to Show Cause, Doc. 92, Appendix “C,” Payne and Morales filed criminal complaints and sought to have “arrest warrants” issued for Senior Judge James A. Parker, Chief Judge William Downes and several Assistant United States Attorneys. The State District Attorney promptly intervened and dismissed those prosecutions.

---

defendants or the Court with their prolixity and frivolousness. As stated in the Report and Recommendation, “a party’s right of access to the courts is neither absolute nor unconditional. Tripati v. Beaman, 878 F.2d 351 (10th Cir. 1989). There exists no constitutional right of access to courts to prosecute frivolous or malicious actions. Id.; Phillips v. Carot, 38 F.2d 207, 208 (10th Cir. 1981).”

From the outset, this Court has afforded Plaintiffs Payne and Morales ample opportunity to bring their claims. Those claims have been found, repeatedly, to be without merit and often filed for improper purposes, including simply to harass or burden defendants and the courts. This Court will not tolerate further abuse of the judicial system from these Plaintiffs.

Payne and Morales argue that Judge Santiago E. Campos' dismissal of their lawsuits was "without jurisdiction" because Plaintiffs sought a jury trial and the Court's granting of summary judgment denied them their Seventh Amendment right to a jury trial. They contend that the Court was without jurisdiction to dismiss their complaint in the face of a jury demand.

The problem with this argument is that it was previously presented by these same litigants to trial courts and to the Tenth Circuit, and the argument was soundly rejected. In Payne v. National Security Agency, 232 F.3d 902 (table, text in Westlaw), 2000 WL 1570547, at *1 (10th Cir. Oct. 19, 2000), the Tenth Circuit stated:

Plaintiff-appellant William H. Payne appeals from the district court's order granting summary judgment on his complaint pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to defendant-appellee National Security Agency (NSA). Payne offers no substantive argument in opposition to the conclusions reached by the district court on the FOIA issues. He contends only that the district court should not have entered summary judgment because it denied him a jury trial to which he was entitled under the Seventh Amendment to the United States Constitution and Fed. R. Civ. P. 38. We affirm.

Assuming without deciding that the Seventh Amendment entitled 7 Payne to a jury trial on his FOIA claim, the district court did not deny him that right by entering summary judgment against him. It is wellsettled that the Seventh Amendment is not violated by proper entry of summary judgment, because such a ruling means that no triable issue exists to be submitted to a jury. See City of Chanute v. Williams Natural Gas Co., 955 F.2d 641, 657 (10th Cir. 1992)(citing Fidelity & Deposit Co. v. United States, 187 U.S. 315, 319-20 (1902)), overruled on other grounds by Systemcare, Inc. v. Wang Lab Corp., 117 F.3d 1137-1145 (10th Cir. 1997). See also In re TMI Litig, 193 F.3d 613, 725 (3d Cir. 1999), cert. denied, 120 S. Ct. 2238 (2000).

With this decisive ruling by the Tenth Circuit, one would expect that Payne and Morales would not again raise the issue. However, that did not occur. In Payne v. EEOC et al., CIV 99-270, Payne again contended that, in a Privacy Act claim, it was improper for the court to grant summary judgment against him because the grant of summary judgment violated his Seventh Amendment right to a jury trial or Fed. R. Civ. P. 38. The trial court rejected the argument and, on appeal, Payne v. EEOC, 242 F.3d 390 (Table, text in Westlaw), 2000 WL 1862659, at *2 (10th Cir. Dec. 20, 2000), the Tenth Circuit affirmed the summary dismissal of Payne’s Privacy Act claim. The Tenth Circuit rejected Payne's argument that the grant of summary judgment deprived him of his Seventh Amendment right to a jury trial, or that dismissal of his lawsuit violated Rule 38.

As explained by the magistrate judge in dismissing plaintiff's claims against the private corporations and individuals, the Privacy Act authorizes suit only against an "agency" of the United States Government. 5 U.S.C. § 552a(a)(1)(q)(1); Parks v. IRS, 618 F.2d 677, 684 (10th Cir. 1980). In general, the United States is immune from being sued unless it consents. United States v. Sherwood, 312 U.S. 584, 586 (1941). Even when it consents, the general rule is that the Seventh Amendment does not grant a plaintiff the right to a trial by jury. Lehman v. Nakshian, 453 U.S. 156, 160 (1981). Thus, when the government does consent to being sued, the plaintiff has a right

---

⁶While the Tenth Circuit assumed without deciding that there was a right to a jury trial, subsequent rulings demonstrate that “[n]either the Privacy Act nor the Freedom of Information Act (FOIA) provide a plaintiff with the right to a jury trial.” Buckles v. Indian Health Service/Belcourt Service Unit, 268 F. Supp. 2d 1101 (D.N.D. 2003).

---

to a jury trial only when the right has been "unequivocally expressed" by Congress. Id. at 160-61. The Privacy Act is silent as to any right to a jury trial. Consequently, plaintiff had no right to a jury trial under the Privacy Act. Plaintiff also includes an allegation that he was entitled to a jury trial under Fed. R. Civ. P. 38. Rule 38, however, simply states that the Seventh Amendment or statutory rights to a jury trial shall be preserved in the federal courts. The Rule does not provide an independent entitlement to a jury trial. Moreover, the proper dismissal of a complaint under Fed. R. Civ. P. 12(b)(6) does not violate the Seventh Amendment. Christensen v. Ward, 916 F.2d 1462, 1466 (10th Cir. 1990). It is clear from our de novo review that the magistrate judge correctly dismissed plaintiff's complaint against all defendants.

Given the history of these pro se litigants of ignoring orders and directives of the court, it not surprising that they have ignored the Tenth Circuit’s prior rulings in Plaintiffs’ own cases which soundly rejected arguments that a trial court is without jurisdiction to grant summary judgment because it violates the Seventh Amendment and Rule 38, or that a court is without jurisdiction to dismiss a lawsuit when a plaintiff has filed a jury demand.

Finally, the Court rejects the argument that Chief Magistrate Judge Lorenzo F. Garcia should not have participated in this case due to bias. Payne advanced the same argument in Payne v. EEOC et al., CIV 99-270, a case tried by Judge Garcia. The Magistrate Judge denied Payne’s request that he recuse and, on appeal, 2000 WL 1862659, the Tenth Circuit affirmed the dismissal of Payne’s case and rejected Payne’s contention that Magistrate Judge Garcia was bound to recuse himself from the litigation.

§ 455. Disqualification of justice, judge, or magistrate judge

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. ...

Conclusion
This Court, after careful consideration of Plaintiffs’ objections, finds that the Magistrate Judge’s analysis is sound. The Court concludes that it has power to impose sanctions on these Plaintiffs. The pleadings which Plaintiffs filed in this case were frivolous, unsupported in fact or law, and constitute a continuation of Plaintiffs’ campaign to file frivolous pleadings intended solely to harass and burden defendants and the Court. The Court adopts the Ehrenhaus analysis set out in the Report and Recommendation. Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992). The Court further finds that the sanctions suggested are appropriate. The entirety of the Report and Recommendation is adopted. Plaintiffs’ objections are overruled.

05/16/2007 81 STRICKEN from the record pursuant to 100 Order - MOTION to Set Aside Judgment by William H Payne, Arthur R Morales. (pz) Modified docket text on 8/28/2007 (ln). (Entered: 05/18/2007)

but instead, with biased magistrate judge Lorenzo Garcia unwarranted attacks plaintiffs, violates her oath of office to support the US Constitution, strikes motion and commits Title 18 felony violation of law all in writing in court records.

A judgment is irregular where its rendition is contrary to the course and practice of the courts; that is, where proper rules of practice have not been followed, or where some necessary act has been omitted or has been done in an improper manner.

A court is authorized by statute to entertain jurisdiction in a particular case only, and undertakes to exercise the jurisdiction conferred in a case to which the statute has no application, the judgment rendered is void.

A judgment is void when the court lacks jurisdiction of the parties or of the subject matter, lacks the inherent power to make or enter the particular order involved, or acts in a manner inconsistent with due process of law.

So Armijo's statement. "The Court further finds that the sanctions suggested are appropriate." is not supported by the facts and is therefore void.

15 Judge Armijo writes

Order

IT IS THEREFORE ORDERED that the Magistrate Judge’s Report and Recommendation [Doc. 95], filed herein on July 31, 2007, is hereby adopted.

IT IS FURTHER ORDERED that Plaintiffs’ pleadings 81, 82, 84, 85, 91, 93, 94, 98, and 99 are stricken from the record.

IT IS FURTHER ORDERED that Plaintiff William H. Payne is personally sanctioned for abusive litigation practices in the amount of $10,000. Mr. Payne shall pay this amount to the Clerk of the Court within 30 days of the date of this Order.

IT IS FURTHER ORDERED that Plaintiff Arthur R. Morales is personally sanctioned for abusive litigation practices in the amount of $10,000. Mr. Morales shall pay this amount to the Clerk of the Court within 30 days of the date of this Order.

IT IS FURTHER ORDERED that if payment is not made from either Plaintiff as ordered above, the United States Attorney is directed to take all reasonable and necessary steps to exact payment and to collect these sanctions from the offending Plaintiff or Plaintiffs and to deposit the amounts collected with the Clerk of Court.

IT IS FURTHER ORDERED that the Clerk of Court will accept no further filings from Plaintiffs in this case, save for a notice of appeal, other than the payments ordered above.

Order "IT IS THEREFORE ORDERED that the Magistrate Judge’s Report and Recommendation [Doc. 95], filed herein on July 31, 2007, is hereby adopted." is void for reasons:

An opportunity for a hearing before a competent and impartial tribunal on proper notice is one of the essential elements of due process of law.

A judgment is irregular where its rendition is contrary to the course and practice of the courts; that is, where proper rules of practice have not been followed, or where some necessary act has been omitted or has been done in an improper manner.

Order "IT IS FURTHER ORDERED that Plaintiffs’ pleadings 81, 82, 84, 85, 91, 93, 94, 98, and 99 are stricken from the record. " is void for reasons:

A judgment is irregular where its rendition is contrary to the course and practice of the courts; that is, where proper rules of practice have not been followed, or where some necessary act has been omitted or has been done in an improper manner.

A court is authorized by statute to entertain jurisdiction in a particular case only, and undertakes to exercise the jurisdiction conferred in a case to which the statute has no application, the judgment rendered is void.

A judgment is void when the court lacks jurisdiction of the parties or of the subject matter, lacks the inherent power to make or enter the particular order involved, or acts in a manner inconsistent with due process of law.

Orders "IT IS FURTHER ORDERED that Plaintiff William H. Payne is personally sanctioned for abusive litigation practices in the amount of $10,000. Mr. Payne shall pay this amount to the Clerk of the Court within 30 days of the date of this Order." and "IT IS FURTHER ORDERED that Plaintiff Arthur R. Morales is personally sanctioned for abusive litigation practices in the amount of $10,000. Mr. Morales shall pay this amount to the Clerk of the Court within 30 days of the date of this Order." are void for reasons:

An opportunity for a hearing before a competent and impartial tribunal on proper notice is one of the essential elements of due process of law.

A judgment is irregular where its rendition is contrary to the course and practice of the courts; that is, where proper rules of practice have not been followed, or where some necessary act has been omitted or has been done in an improper manner.

Order "IT IS FURTHER ORDERED that if payment is not made from either Plaintiff as ordered above, the United States Attorney is directed to take all reasonable and necessary steps to exact payment and to collect these sanctions from the offending Plaintiff or Plaintiffs and to deposit the amounts collected with the Clerk of Court." is void for reason:

A judgment is irregular where its rendition is contrary to the course and practice of the courts; that is, where proper rules of practice have not been followed, or where some necessary act has been omitted or has been done in an improper manner.

Order "IT IS FURTHER ORDERED that the Clerk of Court will accept no further filings from Plaintiffs in this case, save for a notice of appeal, other than the payments ordered above." is void for reason:

The limitations inherent in the requirements of due process of law extend to judicial, as well as political, branches of the government, so that a judgment may not be rendered in violation of those constitutional limitations and guaranties.

Judge Armijo has, again, committed a Title 18 felony violation of law

COUNT 2

Judge M Christina Armijo is charged with violation of Title 18 § 241 and § 242 for issuing order:

IT IS FURTHER ORDERED that the Clerk of Court will accept no further filings from Plaintiffs in this case, save for a notice of appeal, other than the payments ordered above.

It is due process civil right of plaintiffs to be able to defend themselves in court and file under Federal Rules of Civil Procedure Rule 59(e) or Rule 60(b)(3) [fraud] or (4) [void].

08/27/2007 100 ORDER by Judge M. Christina Armijo Adopting Report and Recommendations, Striking Pleadings, and Imposing Sanctions 95 (jab) (Entered: 08/27/2007)

16 Judge Armijo is removed under Rule 63 for reason of incompetence and bias.

Armijo words "[s]ave for a notice of appeal ..." clearly points to incompetence since void judgments are not appealed. Void judgment are vacated under Federal Rule of Civ. P. 60(b)(4).

17 Recuse all New Mexico judicial officers and reassign  CIV NO 97 0266 SC/DJS to UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.

18 Relief items 16 through 18 shall be accomplished and plaintiffs notified by close of business Wednesday September 26, 2007 or void judgment, not appeal, will be filed under Federal Rule of Civ. P. 60(b)(4) at the Tenth Circuit Court of Appeals for case number 00-2019.

Respectfully submitted,

_________________________
William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

_________________________
Arthur R. Morales
465 Washington St SE
Albuquerque, NM 87108

Date: ____________________

Pro se litigants

I HEREBY CERTIFY that a copy of the foregoing MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION was emailed Jan Elizabeth Mitchell, Assistant US Attorney, 201 3rd ST NW, ABQ, NM 87102 at jan.mitchell@usdoj.gov.

_________________________

_________________________
Date

WILLIAM H. PAYNE and
ARTHUR R. MORALES,
Plaintiffs,

vs. No. CIV 97-266 MCA/LFG

NATIONAL SECURITY AGENCY,
Defendant.

THIS MATTER comes before the Court on the Report and Recommendation for Sanctions and Striking of Documents [Doc. 95], filed herein on July 31, 2007. Plaintiffs filed their Objections [Doc. 97] to the Report and Recommendation on August 17, 2007. The Court conducted a de novo review of the Report and Recommendation and finds that it should be adopted.1 In their objections, Plaintiffs argue that the undersigned United States District Judge lacked jurisdiction to refer this matter to a Magistrate Judge for recommended disposition, because it is not a “pretrial” matter. 28 U.S.C. § 636(b)(1) does refer to “pretrial matters.” However, “[c]ourts considering the meaning of the term ‘pretrial’ in § 636(b) have not interpreted the term literally with

This Court has reviewed these pleadings and determines that their substance in no way alters the Court’s analysis and consideration of the Report and Recommendation for Sanctions and Striking of Documents [Doc. 95]. The relief sought therein is denied and the pleadings are stricken from the record.

In addition, the Court has authority under 28 U.S.C. § 636(b)(3), the “additional duties” provision, to refer any matter to a Magistrate Judge so long as the Article III judge “retains the ‘ultimate responsibility for decision making in every instance.’” Colorado Bldg. & Constr. Trades Council v. B.B. Andersen Constr. Co., 879 F.2d 809, 811 (10th Cir. 1989). In this case, the District Judge has conducted the requisite de novo review and made the independent determination that sanctions are warranted. The Court notes as well that Plaintiffs are seeking relief which, if granted, would result in this case being sent back for trial; thus, the pending motions fall within the meaning of Section 636, as it is broadly interpreted by the Tenth Circuit. Thus, the Court rejects the contention that its Order of Reference [Doc. 89] was improper.

Plaintiffs also contend that two pleadings filed after the deadline for responding to the Court’s Order to Show Cause – their “Motion to Void Order of Reference for Lack of Jurisdiction” [Doc. 93], and their “Mandatory Judicial Notice and Authorities to Void Order of Reference for Lack of Jurisdiction” [Doc. 94] – “obviated any response to Garcia’s Order to Show Cause,” and that “Judge Armijo’s failure to rule on Motion to Void Order of Reference for Lack of Jurisdiction before allowing Garcia to issue REPORT AND RECOMMENDATION violated due process.” [Doc. 97, at 6].

The Court rejects this contention. The pro se pleadings [Docs. 93 and 94] do not serve to excuse the Plaintiffs’ obligations to comply with the Court’s explicit directive and order of July 6, 3 2007 [Doc. 92]. Plaintiffs were required to show cause, and they failed to respond to the Court’s Order to Show Cause within the time allotted. They argue that their response was not late because the pleadings were mailed on July 25, 2007, even though they were not filed until July 26. However, the Order to Show Cause reads: “Payne and Morales are directed to file their written responses and supporting affidavits no later than July 25, 2007.” [Doc. 92, at 3]. The deadline was for filing a response; the date of service is irrelevant. In any event, the two pleadings filed on July 26 were not responsive to the Order to Show Cause. Plaintiffs’ action in filing a motion, one day after the deadline for responding to the Order to Show Cause, is a legal nullity. In addition, the Motion to Void Order of Reference for Lack of Jurisdiction is substantively without merit. The Magistrate Judge recommended that the two pleadings filed on July 26, 2007 [Docs. 93 and 94] be among the documents to be stricken from the record, and this Court adopts that recommendation.

Plaintiffs also object to the amount of the recommended sanction, arguing that it is unprecedented. It is not. In affirming a sanction award of over $56,000 in attorney fees against a plaintiff’s counsel for pursuing a case after the statute of limitations had clearly expired, the court in Merriman v. Security Ins. Co. of Hartford, 100 F.3d 1187, 1194 (5th Cir. 1996), noted that the district court must exercise its discretion “in crafting a sanction award reasonably calculated to deter litigation abuse.” While the $10,000 recommended in this case is a substantial amount, lesser sanctions imposed against these Plaintiffs in the past have not deterred their abusive conduct. Indeed, Plaintiffs continued with their campaign of filing baseless and frivolous pleadings and lawsuits unmoved by the Court’s earlier efforts to curb those filing abuses. The lesser sanctions previously imposed (see Doc. 95, pg. 11, n. 9) were insufficient to accomplish their intended purpose.

The amount recommended is not “unprecedented,” as Plaintiffs contend. See, e.g., Merriman v. Security Ins. Co. of Hartford, supra; White v. General Motors Corp., 977 F.2d 499 (10th Cir. 1992) (affirming a sanction award of $50,000 against plaintiff’s attorney); Doyle v. United States, 817 F.2d 1235 (5th Cir. 1987) (affirming a total award of $38,872, representing $1,554.88 against each of 25 plaintiffs who filed a frivolous class-action lawsuit); Jennings v. Joshua Indep. Sch. Dist., 948 F.2d 194 (5th Cir. 1991) (reducing to $21,539.95 a sanction award against plaintiff and plaintiff’s counsel for filing a clearly meritless case); Lapin v. United States, 118 F.R.D. 632 (D. Haw. 1987) (awarding $28,400 to be paid to the Clerk of Court as a sanction for frivolous filings).²

Plaintiffs were warned that sanctions could be awarded, and they were given an opportunity to respond to the Order to Show Cause. They did not do so, preferring to file yet another frivolous motion, challenging the Court’s authority to refer this matter to the Magistrate Judge. In their objections, they do not claim an inability to pay the amount recommended. Indeed, Plaintiffs have been able to pay filing fees and to maintain the costs of pursuing numerous lawsuits through the years. As the Court has not been presented with any evidence of lack of ability to pay, that factor does not enter into the Court’s consideration.

Finally, Plaintiffs appear to argue that “new information” allegedly related to this lawsuit, which “recently surfaced on Wikipedia,” justifies their filing new motions six and a half years after the case was terminated. The information concerns former National Security Advisor Zbigniew

² The judge in Lapin v. United States referred to a study showing that “a single hour spent by a federal judge on a case costs the taxpayers approximately six hundred dollars.” He determined the amount of judge time spent dealing with plaintiff’s frivolous filings, assigning $600 to in-court time and $200 to out-of court time, and came to the total sanction of over $28,000. If that method were used in this case, Plaintiffs’ sanction would likely amount to well over $100,000.

BrzeninskI. ³ 5 Brzezinski.3 In addition, Plaintiffs complain that among the documents which the Magistrate Judge recommended stricken was a “criminal complaint affidavit against former secretary of state Brzezinski.” Plaintiffs quote someone named “Col. Feehan,” as follows: “Failure to bring Brzezinski to justice casts a dark shadow of corruption on judicial and government branches. Further, a failure to bring Brzezinski, and others, to justice may be an invitation for retaliation by those aggrieved by what Brzezinski and others have done.” [Doc. 97, at 22-23].

This statement is typical of the veiled and indirect threats these Plaintiffs have made against judges, U.S. Attorneys and Assistant U.S. Attorneys, court officers, federal officials and employees, and a host of others who have had the misfortune of being named in the many complaints which the Plaintiffs have filed. As noted in the Report and Recommendation, these pro se litigants do little more more than heap abuse and invective on the defendants and court officers. They have accused judicial officers of being felons, of being corrupt and incompetent. For example, in this very case Payne and Morales state, “Judge Armijo over-stepped her bounds and thus demonstrated her bias or incompetence.” [Doc. 97, at 3].4 They continue to harass judicial officers by filing criminal complaints. (See, e.g., Doc. 97, “Criminal Complaint Affidavit” attached to Response as Appendix “A:”).5 While Plaintiffs are free to maintain and express their beliefs, they are not free to burden

³ Mr. Brzezinski was National Security Advisor under President Jimmy Carter. As yet another example of frivolous pleading, Plaintiffs are seeking to have “criminal complaints” issued against Mr. Brzezinski for alleged misinformation given concerning national security matters.

⁴ To the extent that Plaintiffs’ claim of bias with respect to Judge Armijo constitutes a veiled request that she recuse from this case, such request is denied. Plaintiffs have failed to demonstrate or establish by affidavit, or otherwise, with particularity that the undersigned judge has a bias or prejudice.

⁵ As noted in the Order to Show Cause, Doc. 92, Appendix “C,” Payne and Morales filed criminal complaints and sought to have “arrest warrants” issued for Senior Judge James A. Parker, Chief Judge William Downes and several Assistant United States Attorneys. The State District Attorney promptly intervened and dismissed those prosecutions.

defendants or the Court with their prolixity and frivolousness. As stated in the Report and Recommendation, “a party’s right of access to the courts is neither absolute nor unconditional. Tripati v. Beaman, 878 F.2d 351 (10th Cir. 1989). There exists no constitutional right of access to courts to prosecute frivolous or malicious actions. Id.; Phillips v. Carot, 38 F.2d 207, 208 (10th Cir. 1981).”

From the outset, this Court has afforded Plaintiffs Payne and Morales ample opportunity to bring their claims. Those claims have been found, repeatedly, to be without merit and often filed for improper purposes, including simply to harass or burden defendants and the courts. This Court will not tolerate further abuse of the judicial system from these Plaintiffs.

Payne and Morales argue that Judge Santiago E. Campos' dismissal of their lawsuits was "without jurisdiction" because Plaintiffs sought a jury trial and the Court's granting of summary judgment denied them their Seventh Amendment right to a jury trial. They contend that the Court was without jurisdiction to dismiss their complaint in the face of a jury demand.

The problem with this argument is that it was previously presented by these same litigants to trial courts and to the Tenth Circuit, and the argument was soundly rejected. In Payne v. National Security Agency, 232 F.3d 902 (table, text in Westlaw), 2000 WL 1570547, at *1 (10th Cir. Oct. 19, 2000), the Tenth Circuit stated:

Plaintiff-appellant William H. Payne appeals from the district court's order granting summary judgment on his complaint pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to defendantappellee National Security Agency (NSA). Payne offers no substantive argument in opposition to the conclusions reached by the district court on the FOIA issues. He contends only that the district court should not have entered summary judgment because it denied him a jury trial to which he was entitled under the Seventh Amendment to the United States Constitution and Fed. R. Civ. P. 38. We affirm.

Assuming without deciding that the Seventh Amendment entitled 7 Payne to a jury trial on his FOIA claim, the district court did not deny him that right by entering summary judgment against him. It is wellsettled that the Seventh Amendment is not violated by proper entry of summary judgment, because such a ruling means that no triable issue exists to be submitted to a jury. See City of Chanute v. Williams Natural Gas Co., 955 F.2d 641, 657 (10th Cir. 1992)(citing Fidelity & Deposit Co. v. United States, 187 U.S. 315, 319-20 (1902)), overruled on other grounds by Systemcare, Inc. v. Wang Lab Corp., 117 F.3d 1137-1145 (10th Cir. 1997). See also In re TMI Litig, 193 F.3d 613, 725 (3d Cir. 1999), cert. denied, 120 S. Ct. 2238 (2000).

With this decisive ruling by the Tenth Circuit, one would expect that Payne and Morales would not again raise the issue. However, that did not occur. In Payne v. EEOC et al., CIV 99-270, Payne again contended that, in a Privacy Act claim, it was improper for the court to grant summary judgment against him because the grant of summary judgment violated his Seventh Amendment right to a jury trial or Fed. R. Civ. P. 38. The trial court rejected the argument and, on appeal, Payne v. EEOC, 242 F.3d 390 (Table, text in Westlaw), 2000 WL 1862659, at *2 (10th Cir. Dec. 20, 2000), the Tenth Circuit affirmed the summary dismissal of Payne’s Privacy Act claim. The Tenth Circuit rejected Payne's argument that the grant of summary judgment deprived him of his Seventh Amendment right to a jury trial, or that dismissal of his lawsuit violated Rule 38.

As explained by the magistrate judge in dismissing plaintiff's claims against the private corporations and individuals, the Privacy Act authorizes suit only against an "agency" of the United States Government. 5 U.S.C. § 552a(a)(1)(q)(1); Parks v. IRS, 618 F.2d 677, 684 (10th Cir. 1980). In general, the United States is immune from being sued unless it consents. United States v. Sherwood, 312 U.S. 584, 586 (1941). Even when it consents, the general rule is that the Seventh Amendment does not grant a plaintiff the right to a trial by jury. Lehman v. Nakshian, 453 U.S. 156, 160 (1981). Thus, when the government does consent to being sued, the plaintiff has a right

to a jury trial only when the right has been "unequivocally expressed" by Congress. Id. at 160-61. The Privacy Act is silent as to any right to a jury trial. Consequently, plaintiff had no right to a jury trial under the Privacy Act. Plaintiff also includes an allegation that he was entitled to a jury trial under Fed. R. Civ. P. 38. Rule 38, however, simply states that the Seventh Amendment or statutory rights to a jury trial shall be preserved in the federal courts. The Rule does not provide an independent entitlement to a jury trial. Moreover, the proper dismissal of a complaint under Fed. R. Civ. P. 12(b)(6) does not violate the Seventh Amendment. Christensen v. Ward, 916 F.2d 1462, 1466 (10th Cir. 1990). It is clear from our de novo review that the magistrate judge correctly dismissed plaintiff's complaint against all defendants.

Given the history of these pro se litigants of ignoring orders and directives of the court, it not surprising that they have ignored the Tenth Circuit’s prior rulings in Plaintiffs’ own cases which soundly rejected arguments that a trial court is without jurisdiction to grant summary judgment because it violates the Seventh Amendment and Rule 38, or that a court is without jurisdiction to dismiss a lawsuit when a plaintiff has filed a jury demand.

Finally, the Court rejects the argument that Chief Magistrate Judge Lorenzo F. Garcia should not have participated in this case due to bias. Payne advanced the same argument in Payne v. EEOC et al., CIV 99-270, a case tried by Judge Garcia. The Magistrate Judge denied Payne’s request that he recuse and, on appeal, 2000 WL 1862659, the Tenth Circuit affirmed the dismissal of Payne’s case and rejected Payne’s contention that Magistrate Judge Garcia was bound to recuse himself from the litigation.

IT IS THEREFORE ORDERED that the Magistrate Judge’s Report and Recommendation [Doc. 95], filed herein on July 31, 2007, is hereby adopted.

IT IS FURTHER ORDERED that Plaintiffs’ pleadings 81, 82, 84, 85, 91, 93, 94, 98, and 99 are stricken from the record.

IT IS FURTHER ORDERED that Plaintiff William H. Payne is personally sanctioned for abusive litigation practices in the amount of $10,000. Mr. Payne shall pay this amount to the Clerk of the Court within 30 days of the date of this Order.

IT IS FURTHER ORDERED that Plaintiff Arthur R. Morales is personally sanctioned for abusive litigation practices in the amount of $10,000. Mr. Morales shall pay this amount to the Clerk of the Court within 30 days of the date of this Order.

IT IS FURTHER ORDERED that if payment is not made from either Plaintiff as ordered above, the United States Attorney is directed to take all reasonable and necessary steps to exact payment and to collect these sanctions from the offending Plaintiff or Plaintiffs and to deposit the amounts collected with the Clerk of Court.

IT IS FURTHER ORDERED that the Clerk of Court will accept no further filings from Plaintiffs in this case, save for a notice of appeal, other than the payments ordered above.

_____________________________8-27-2007______
M. CHRISTINA ARMIJO
UNITED STATES DISTRICT JUDGE

Distribution

bill.leonard@nara.gov
iscap@nara.gov
william.bosanko@nara.gov
foialo@nsa.gov
julia.eichhorst@ic.fbi.gov
the.secretary@hq.doe.gov
alexander.morris@hq.doe.gov

U.S. House of Representative Committee on the Judiciary
United States Senate Committee on the Judiciary

WILLIAM H. PAYNE and
ARTHUR R. MORALES,
Plaintiffs,

vs. No. CIV 97-266 MCA/LFG

NATIONAL SECURITY AGENCY,
Defendant.

THIS MATTER comes before the Court on the Report and Recommendation for Sanctions and Striking of Documents [Doc. 95], filed herein on July 31, 2007. Plaintiffs filed their Objections [Doc. 97] to the Report and Recommendation on August 17, 2007. The Court conducted a de novo review of the Report and Recommendation and finds that it should be adopted.1 In their objections, Plaintiffs argue that the undersigned United States District Judge lacked jurisdiction to refer this matter to a Magistrate Judge for recommended disposition, because it is not a “pretrial” matter. 28 U.S.C. § 636(b)(1) does refer to “pretrial matters.” However, “[c]ourts considering the meaning of the term ‘pretrial’ in § 636(b) have not interpreted the term literally with

This Court has reviewed these pleadings and determines that their substance in no way alters the Court’s analysis and consideration of the Report and Recommendation for Sanctions and Striking of Documents [Doc. 95]. The relief sought therein is denied and the pleadings are stricken from the record.

In addition, the Court has authority under 28 U.S.C. § 636(b)(3), the “additional duties” provision, to refer any matter to a Magistrate Judge so long as the Article III judge “retains the ‘ultimate responsibility for decision making in every instance.’” Colorado Bldg. & Constr. Trades Council v. B.B. Andersen Constr. Co., 879 F.2d 809, 811 (10th Cir. 1989). In this case, the District Judge has conducted the requisite de novo review and made the independent determination that sanctions are warranted. The Court notes as well that Plaintiffs are seeking relief which, if granted, would result in this case being sent back for trial; thus, the pending motions fall within the meaning of Section 636, as it is broadly interpreted by the Tenth Circuit. Thus, the Court rejects the contention that its Order of Reference [Doc. 89] was improper.

Plaintiffs also contend that two pleadings filed after the deadline for responding to the Court’s Order to Show Cause – their “Motion to Void Order of Reference for Lack of Jurisdiction” [Doc. 93], and their “Mandatory Judicial Notice and Authorities to Void Order of Reference for Lack of Jurisdiction” [Doc. 94] – “obviated any response to Garcia’s Order to Show Cause,” and that “Judge Armijo’s failure to rule on Motion to Void Order of Reference for Lack of Jurisdiction before allowing Garcia to issue REPORT AND RECOMMENDATION violated due process.” [Doc. 97, at 6].

The Court rejects this contention. The pro se pleadings [Docs. 93 and 94] do not serve to excuse the Plaintiffs’ obligations to comply with the Court’s explicit directive and order of July 6, 3 2007 [Doc. 92]. Plaintiffs were required to show cause, and they failed to respond to the Court’s Order to Show Cause within the time allotted. They argue that their response was not late because the pleadings were mailed on July 25, 2007, even though they were not filed until July 26. However, the Order to Show Cause reads: “Payne and Morales are directed to file their written responses and supporting affidavits no later than July 25, 2007.” [Doc. 92, at 3]. The deadline was for filing a response; the date of service is irrelevant. In any event, the two pleadings filed on July 26 were not responsive to the Order to Show Cause. Plaintiffs’ action in filing a motion, one day after the deadline for responding to the Order to Show Cause, is a legal nullity. In addition, the Motion to Void Order of Reference for Lack of Jurisdiction is substantively without merit. The Magistrate Judge recommended that the two pleadings filed on July 26, 2007 [Docs. 93 and 94] be among the documents to be stricken from the record, and this Court adopts that recommendation.

Plaintiffs also object to the amount of the recommended sanction, arguing that it is unprecedented. It is not. In affirming a sanction award of over $56,000 in attorney fees against a plaintiff’s counsel for pursuing a case after the statute of limitations had clearly expired, the court in Merriman v. Security Ins. Co. of Hartford, 100 F.3d 1187, 1194 (5th Cir. 1996), noted that the district court must exercise its discretion “in crafting a sanction award reasonably calculated to deter litigation abuse.” While the $10,000 recommended in this case is a substantial amount, lesser sanctions imposed against these Plaintiffs in the past have not deterred their abusive conduct. Indeed, Plaintiffs continued with their campaign of filing baseless and frivolous pleadings and lawsuits unmoved by the Court’s earlier efforts to curb those filing abuses. The lesser sanctions previously imposed (see Doc. 95, pg. 11, n. 9) were insufficient to accomplish their intended purpose.

The amount recommended is not “unprecedented,” as Plaintiffs contend. See, e.g., Merriman v. Security Ins. Co. of Hartford, supra; White v. General Motors Corp., 977 F.2d 499 (10th Cir. 1992) (affirming a sanction award of $50,000 against plaintiff’s attorney); Doyle v. United States, 817 F.2d 1235 (5th Cir. 1987) (affirming a total award of $38,872, representing $1,554.88 against each of 25 plaintiffs who filed a frivolous class-action lawsuit); Jennings v. Joshua Indep. Sch. Dist., 948 F.2d 194 (5th Cir. 1991) (reducing to $21,539.95 a sanction award against plaintiff and plaintiff’s counsel for filing a clearly meritless case); Lapin v. United States, 118 F.R.D. 632 (D. Haw. 1987) (awarding $28,400 to be paid to the Clerk of Court as a sanction for frivolous filings).²

Plaintiffs were warned that sanctions could be awarded, and they were given an opportunity to respond to the Order to Show Cause. They did not do so, preferring to file yet another frivolous motion, challenging the Court’s authority to refer this matter to the Magistrate Judge. In their objections, they do not claim an inability to pay the amount recommended. Indeed, Plaintiffs have been able to pay filing fees and to maintain the costs of pursuing numerous lawsuits through the years. As the Court has not been presented with any evidence of lack of ability to pay, that factor does not enter into the Court’s consideration.

Finally, Plaintiffs appear to argue that “new information” allegedly related to this lawsuit, which “recently surfaced on Wikipedia,” justifies their filing new motions six and a half years after the case was terminated. The information concerns former National Security Advisor Zbigniew

² The judge in Lapin v. United States referred to a study showing that “a single hour spent by a federal judge on a case costs the taxpayers approximately six hundred dollars.” He determined the amount of judge time spent dealing with plaintiff’s frivolous filings, assigning $600 to in-court time and $200 to out-of court time, and came to the total sanction of over $28,000. If that method were used in this case, Plaintiffs’ sanction would likely amount to well over $100,000.

BrzeninskI. ³ 5 Brzezinski.3 In addition, Plaintiffs complain that among the documents which the Magistrate Judge recommended stricken was a “criminal complaint affidavit against former secretary of state Brzezinski.” Plaintiffs quote someone named “Col. Feehan,” as follows: “Failure to bring Brzezinski to justice casts a dark shadow of corruption on judicial and government branches. Further, a failure to bring Brzezinski, and others, to justice may be an invitation for retaliation by those aggrieved by what Brzezinski and others have done.” [Doc. 97, at 22-23].

This statement is typical of the veiled and indirect threats these Plaintiffs have made against judges, U.S. Attorneys and Assistant U.S. Attorneys, court officers, federal officials and employees, and a host of others who have had the misfortune of being named in the many complaints which the Plaintiffs have filed. As noted in the Report and Recommendation, these pro se litigants do little more more than heap abuse and invective on the defendants and court officers. They have accused judicial officers of being felons, of being corrupt and incompetent. For example, in this very case Payne and Morales state, “Judge Armijo over-stepped her bounds and thus demonstrated her bias or incompetence.” [Doc. 97, at 3].4 They continue to harass judicial officers by filing criminal complaints. (See, e.g., Doc. 97, “Criminal Complaint Affidavit” attached to Response as Appendix “A:”).5 While Plaintiffs are free to maintain and express their beliefs, they are not free to burden

³ Mr. Brzezinski was National Security Advisor under President Jimmy Carter. As yet another example of frivolous pleading, Plaintiffs are seeking to have “criminal complaints” issued against Mr. Brzezinski for alleged misinformation given concerning national security matters.

⁴ To the extent that Plaintiffs’ claim of bias with respect to Judge Armijo constitutes a veiled request that she recuse from this case, such request is denied. Plaintiffs have failed to demonstrate or establish by affidavit, or otherwise, with particularity that the undersigned judge has a bias or prejudice.

⁵ As noted in the Order to Show Cause, Doc. 92, Appendix “C,” Payne and Morales filed criminal complaints and sought to have “arrest warrants” issued for Senior Judge James A. Parker, Chief Judge William Downes and several Assistant United States Attorneys. The State District Attorney promptly intervened and dismissed those prosecutions.

defendants or the Court with their prolixity and frivolousness. As stated in the Report and Recommendation, “a party’s right of access to the courts is neither absolute nor unconditional. Tripati v. Beaman, 878 F.2d 351 (10th Cir. 1989). There exists no constitutional right of access to courts to prosecute frivolous or malicious actions. Id.; Phillips v. Carot, 38 F.2d 207, 208 (10th Cir. 1981).”

From the outset, this Court has afforded Plaintiffs Payne and Morales ample opportunity to bring their claims. Those claims have been found, repeatedly, to be without merit and often filed for improper purposes, including simply to harass or burden defendants and the courts. This Court will not tolerate further abuse of the judicial system from these Plaintiffs.

Payne and Morales argue that Judge Santiago E. Campos' dismissal of their lawsuits was "without jurisdiction" because Plaintiffs sought a jury trial and the Court's granting of summary judgment denied them their Seventh Amendment right to a jury trial. They contend that the Court was without jurisdiction to dismiss their complaint in the face of a jury demand.

The problem with this argument is that it was previously presented by these same litigants to trial courts and to the Tenth Circuit, and the argument was soundly rejected. In Payne v. National Security Agency, 232 F.3d 902 (table, text in Westlaw), 2000 WL 1570547, at *1 (10th Cir. Oct. 19, 2000), the Tenth Circuit stated:

Plaintiff-appellant William H. Payne appeals from the district court's order granting summary judgment on his complaint pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to defendantappellee National Security Agency (NSA). Payne offers no substantive argument in opposition to the conclusions reached by the district court on the FOIA issues. He contends only that the district court should not have entered summary judgment because it denied him a jury trial to which he was entitled under the Seventh Amendment to the United States Constitution and Fed. R. Civ. P. 38. We affirm.

Assuming without deciding that the Seventh Amendment entitled 7 Payne to a jury trial on his FOIA claim, the district court did not deny him that right by entering summary judgment against him. It is wellsettled that the Seventh Amendment is not violated by proper entry of summary judgment, because such a ruling means that no triable issue exists to be submitted to a jury. See City of Chanute v. Williams Natural Gas Co., 955 F.2d 641, 657 (10th Cir. 1992)(citing Fidelity & Deposit Co. v. United States, 187 U.S. 315, 319-20 (1902)), overruled on other grounds by Systemcare, Inc. v. Wang Lab Corp., 117 F.3d 1137-1145 (10th Cir. 1997). See also In re TMI Litig, 193 F.3d 613, 725 (3d Cir. 1999), cert. denied, 120 S. Ct. 2238 (2000).

With this decisive ruling by the Tenth Circuit, one would expect that Payne and Morales would not again raise the issue. However, that did not occur. In Payne v. EEOC et al., CIV 99-270, Payne again contended that, in a Privacy Act claim, it was improper for the court to grant summary judgment against him because the grant of summary judgment violated his Seventh Amendment right to a jury trial or Fed. R. Civ. P. 38. The trial court rejected the argument and, on appeal, Payne v. EEOC, 242 F.3d 390 (Table, text in Westlaw), 2000 WL 1862659, at *2 (10th Cir. Dec. 20, 2000), the Tenth Circuit affirmed the summary dismissal of Payne’s Privacy Act claim. The Tenth Circuit rejected Payne's argument that the grant of summary judgment deprived him of his Seventh Amendment right to a jury trial, or that dismissal of his lawsuit violated Rule 38.

As explained by the magistrate judge in dismissing plaintiff's claims against the private corporations and individuals, the Privacy Act authorizes suit only against an "agency" of the United States Government. 5 U.S.C. § 552a(a)(1)(q)(1); Parks v. IRS, 618 F.2d 677, 684 (10th Cir. 1980). In general, the United States is immune from being sued unless it consents. United States v. Sherwood, 312 U.S. 584, 586 (1941). Even when it consents, the general rule is that the Seventh Amendment does not grant a plaintiff the right to a trial by jury. Lehman v. Nakshian, 453 U.S. 156, 160 (1981). Thus, when the government does consent to being sued, the plaintiff has a right

to a jury trial only when the right has been "unequivocally expressed" by Congress. Id. at 160-61. The Privacy Act is silent as to any right to a jury trial. Consequently, plaintiff had no right to a jury trial under the Privacy Act. Plaintiff also includes an allegation that he was entitled to a jury trial under Fed. R. Civ. P. 38. Rule 38, however, simply states that the Seventh Amendment or statutory rights to a jury trial shall be preserved in the federal courts. The Rule does not provide an independent entitlement to a jury trial. Moreover, the proper dismissal of a complaint under Fed. R. Civ. P. 12(b)(6) does not violate the Seventh Amendment. Christensen v. Ward, 916 F.2d 1462, 1466 (10th Cir. 1990). It is clear from our de novo review that the magistrate judge correctly dismissed plaintiff's complaint against all defendants.

Given the history of these pro se litigants of ignoring orders and directives of the court, it not surprising that they have ignored the Tenth Circuit’s prior rulings in Plaintiffs’ own cases which soundly rejected arguments that a trial court is without jurisdiction to grant summary judgment because it violates the Seventh Amendment and Rule 38, or that a court is without jurisdiction to dismiss a lawsuit when a plaintiff has filed a jury demand.

Finally, the Court rejects the argument that Chief Magistrate Judge Lorenzo F. Garcia should not have participated in this case due to bias. Payne advanced the same argument in Payne v. EEOC et al., CIV 99-270, a case tried by Judge Garcia. The Magistrate Judge denied Payne’s request that he recuse and, on appeal, 2000 WL 1862659, the Tenth Circuit affirmed the dismissal of Payne’s case and rejected Payne’s contention that Magistrate Judge Garcia was bound to recuse himself from the litigation.

IT IS THEREFORE ORDERED that the Magistrate Judge’s Report and Recommendation [Doc. 95], filed herein on July 31, 2007, is hereby adopted.

IT IS FURTHER ORDERED that Plaintiffs’ pleadings 81, 82, 84, 85, 91, 93, 94, 98, and 99 are stricken from the record.

IT IS FURTHER ORDERED that Plaintiff William H. Payne is personally sanctioned for abusive litigation practices in the amount of $10,000. Mr. Payne shall pay this amount to the Clerk of the Court within 30 days of the date of this Order.

IT IS FURTHER ORDERED that Plaintiff Arthur R. Morales is personally sanctioned for abusive litigation practices in the amount of $10,000. Mr. Morales shall pay this amount to the Clerk of the Court within 30 days of the date of this Order.

IT IS FURTHER ORDERED that if payment is not made from either Plaintiff as ordered above, the United States Attorney is directed to take all reasonable and necessary steps to exact payment and to collect these sanctions from the offending Plaintiff or Plaintiffs and to deposit the amounts collected with the Clerk of Court.

IT IS FURTHER ORDERED that the Clerk of Court will accept no further filings from Plaintiffs in this case, save for a notice of appeal, other than the payments ordered above.

_____________________________8-27-2007______
M. CHRISTINA ARMIJO UNITED STATES DISTRICT JUDGE

Morales filed three federal lawsuits: one with Manuel Garcia which resulted in Sandia National Laboratories settling with all parties except Morales who had a bench trial with judge Galvan presiding, and a jury trial lawsuit No. CIV- 97-350-LH/DJS for retaliation with judge C Leroy Hansen presiding.

Morales filed two federal lawsuits: one with Manuel Garcia which resulted in Sandia National Laboratories settling with all parties except Morales who had a bench trial with judge Galvan presiding, and a jury trial lawsuit No. CIV- 97-350-LH/DJS for retaliation with judge C Leroy Hansen presiding.

I HEREBY CERTIFY that a copy of the foregoing MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION was emailed Jan Elizabeth Mitchell, Assistant US Attorney, 201 3rd ST NW, ABQ, NM 87102 at jan.mitchell@usdoj.gov.

_________________________

_________________________
Date

Electronic copies are posted at http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#garciasanctions and in pdf at http://www.prosefights.org/nmlegal/nsalawsuit/pacerdockeaugust62007/garciathreats.pdf

¹Within ten (10) days after a party is served with a copy of this analysis and recommended disposition, that party may, pursuant to 28 U.S.C. § 636(b)(1), file written objections to such analysis and recommendation. A party must file any objections within the ten-day period allowed if that party wants to have appellate review of the analysis and recommendation. Therefore, if no objections are filed by August 17, 2007, no appellate review will be allowed.

28 U.S.C. § 636(b)(1) states

§ 636. Jurisdiction, powers, and temporary assignment

(b)

(1) Notwithstanding any provision of law to the contrary—

(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.

(B) a judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial [1] relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.

Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

THIS MATTER is before the Court on an Order of Reference from United States District Judge M. Christina Armijo, directing the undersigned Chief Magistrate Judge to issue a report and recommendation as to whether Plaintiffs’ recent filings in this long-terminated case warrant sanctions, including censure, striking pleadings or imposition of fines [Doc. 89, at 2].

[F]urther, the Chief Magistrate Judge shall determine whether the Plaintiffs’ filing of pleadings in this case constitutes a violation of the federal injunction previously entered prohibiting William H. Payne and Arthur R. Morales from filing new lawsuits or re-asserting claims which have previously been dismissed (Arthur R. Morales and William H. Payne v. Theodore C. Baca, et al, CIV 01-634, (Docket No. 61).²

Judge Garcia may undertake whatever legal analysis he deems necessary and may conduct hearings to determine if there is a violation of the injunction and, if so, to recommend the imposition of sanctions, including but not limited to, censure, striking pleadings, and imposition of fines. Judge Garcia shall issue his Report and Recommendation to the Court in accord with the requirements of 28 U.S.C. § 636(b)(1).

²Pro se Plaintiffs’ access to the Court was not absolutely barred. Plaintiffs could file pleadings as long as they complied with the requirements outlined in the attachment, Appendix A, to the Honorable William F. Downes’ injunctive order. [Id.] See also, Tripati v. Beaman, 878 F.2d 351, 354 (10th Cir. 1989).

Plaintiffs William H. Payne (“Payne”) and Arthur R. Morales (“Morales”) filed their pro se complaint in this case over ten years ago, in February 1997. On October 27, 1999, Senior United States District Judge Santiago E. Campos granted summary judgment in favor of Defendants [Docs. 72, 73]. On December 23, 1999, Judge Campos denied Plaintiff Payne’s Motion to Alter or Amend the Memorandum Opinion and Order [Doc. 77]. Payne appealed and, on December 13, 2000, the United States Court of Appeals for the Tenth Circuit affirmed the District Court’s ruling. The case was thus terminated and has been closed for over six and one-half years.

Any judgment rendered by a court which lacks jurisdiction, either of the subject matter of the parties, or lacks inherent power to enter the particular judgment, or entered an Order which violated due process or was procured through extrinsic or collateral fraud, is null and void, and can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court. See U.S.Const.Amdt. V; F.R.Civ.P. 60(b)(4); CR 60(b)(5); Federal cases: Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985); Rubin v. Johns, 109 F.R.D. 174 (D.Virg.Is.1985); Triad Energy Corp. v. McNell, 110 F.R.D. 382 (S.D.N.Y. 1986); Millikan v. Meyer, 311 US 457, 61 S.Ct. 339, 85 L.Ed.2d 278 (1940); Long v. Shorebank Development Corp., 182 F.3d 548 (CA7 1999).

New information related to CIV NO 97 0266 SC/DJS recently surfaced on Wikipedia.

Failed Nojeh Coup In July 1980, the U.S. national security adviser Zbigniew Brzezinski met Jordan's King Hussein in Amman to discuss detailed plans for Saddam Hussein to sponsor a coup in Iran against Khomeini. King Hussein was Saddam's closest confidant in the Arab world, and served as an intermediary during the planning. The Iraqi invasion of Iran would be launched under the pretext of a call for aid from Iranian loyalist officers plotting their own uprising on July 9, 1980 (codenamed Nojeh, after Shahrokhi/Nojeh air base in Hamedan). The Iranian officers were organized by Shapour Bakhtiar, who had fled to France when Khomeini seized power, but was operating from Baghdad and Sulimaniyah at the time of Brzezinski's meeting with Hussein. However, Khomeini learned of the Nojeh Coup plan from Soviet agents in France, Pakistan, and Latin America. Shortly after Brzezinski's meeting with Hussein, the President of Iran, Abolhassan Bani-Sadr quietly rounded up six hundred officers and executed many of them, putting an effective end to the Nojeh Coup [2]. Saddam would decide to invade without the Iranian officer's assistance, beginning the Iran-Iraq war on 22 September 1980.

On May 16, 2007, Payne and Morales filed a Motion to Set Aside Judgment [Doc. 81]. Judge Armijo’s Order of Reference followed.

The undersigned Chief Magistrate Judge issued an Order to Show Cause [Doc. 92] directing pro se Plaintiffs Payne and Morales to show cause by way of written response and supporting affidavits why their pleadings [Docs. 81, 82, 84, 85 and 91] should not be stricken or denied, and, further, why they should not be sanctioned for filing repetitive, frivolous or barred pleadings.

The undersigned Chief Magistrate Judge issued an Order to Show Cause [Doc. 92] directing pro se Plaintiffs Payne and Morales to show cause by way of written response and supporting affidavits why their pleadings [Docs. 81, 82, 84, 85 and 91] should not be stricken or denied, and, further, why they should not be sanctioned for filing repetitive, frivolous or barred pleadings. The Court’s Order to Show Cause required a written response and supporting affidavits no later than July 25, 2007. Neither Payne nor Morales complied with the Court’s directive. Neither filed a response to the Order to Show Cause, nor did they offer any rationale why the pleadings should not be stricken or denied, or why they should not be sanctioned for their abusive litigation practices. Neither Plaintiff sought any extension of time within which to comply with the Court’s order. The time for responding expired.² The district’s local Rule, D.N.M.LR-Civ. 7.1(b) provides that failure to respond constitutes consent to the proposed relief. Thus, Payne and Morales are deemed to have consented to having their pleadings stricken and sanctions imposed. While the Court concludes that relief is appropriate under D.N.M.LR-Civ. 7.1(b), the Court nonetheless reviews the Order to Show Cause on its merits.

²On July 26, 2007, Payne and Morales filed a Motion to Void Order of Reference for Lack of Jurisdiction [Doc. 93], as well as a pleading captioned “Mandatory Judicial Notice and Authorities to Void Order of Reference for Lack of Jurisdiction” [Doc. 94]. They did not respond to the Order to Show Cause and did not submit the supporting affidavits mandated by the Court. Their motion to void makes no mention of the Court’s directive to show cause why their pleadings should not be stricken or denied.

The Court’s Order to Show Cause recites that Payne and Morales engaged in a multi-year campaign of filing abusive, repetitive and frivolous lawsuits, pleadings and papers in both federal and state courts.³ They targeted dozens upon dozens of defendants in their various lawsuits. These defendants included governmental agencies, America’s national laboratories, governmental officials, federal judges, state judges, U.S. Attorneys, Assistant U.S. Attorneys, private attorneys, corporations, corporate officials, officers, directors and employees of corporations, and numerous others. In each instance, it was necessary for defendants to secure counsel and to take time and expend resources in responding to frivolous and repetitive lawsuits. This was a costly and time-consuming process.

Plaintiff Payne was fired from Sandia Laboratories in 1992 after Sandia manager James Gosler turned Payne into the FBI for apparently committing some national security crime. Payne sued in New Mexico federal court to recover damages. Judge John Conway presided.

Affidavit by James Gosler filed 12/31/1992 and given to judge John Conway under the cloak of secrecy apparently information also provided to the FBI.

On December 8, 2006 the FBI declassified a letter written by Wayne R Gilbert, Assistant Director in Charge, Intelligence Division, to the National Security Agency requesting a classification review relating to the documents Gosler gave the FBI, so it no wonder that these matters have spanned about 15 years.

Garcia falsely claims "frivolous and repetitive lawsuits." To the contrary, all lawsuit have been based on written evidence of guilt of defendants in plaintiff Payne pursuit of recovery of several million dollars in damages cause by Gosler, Sandia Labs and other because of false charges resulting in criminal release of the false and defaming [libelous] documents seen at http://www.prosefights.org/nmlegal/supremecourt/cvpa.htm#gallegos and recently revealed documents identified by Mr Gilbert of the FBI.

Garcia's statement,"In each instance, it was necessary for defendants to secure counsel and to take time and expend resources in responding to frivolous and repetitive lawsuits. This was a costly and time-consuming process." shows that defendants wasted taxpayer money on lawyers rather than settle prima facie case lawsuits.

New Mexico state 12 person jury trial lawsuits CV- 2000-10289, CV-2001-06293, CV 2000-10278, and CV 2001-05900, three of which were fraudulently removed to federal court and two improperly dismissed in state court must either be settled or tried before juries with no oral argument required. All the evidence of guilt of defendants is in writing.

7 Judge Lorenzo Garcia writes

Notwithstanding the dozens of lawsuits initiated by these pro se litigants, neither Payne nor Morales succeeded in any claim before any judicial forum. Each and every lawsuit they filed was dismissed.

The lawsuits were dismissed in violation of our right to trial by jury guaranteed inviolate by 7^th Amendment to US Constitution and 28 USC Rule 38.

Reason for multiple lawsuits was that plaintiffs could not find any official of the court or any other branch of government to uphold the Constitution which caused each and everyone of them to violate their oath of office to protect and defend the US Constitution.

8 Judge Lorenzo Garcia writes

Notwithstanding the dozens of lawsuits initiated by these pro se litigants, neither Payne nor Morales succeeded in any claim before any judicial forum. Each and every lawsuit they filed was dismissed. Payne and Morales were deemed “frivolous litigators” by both state and federal judges, and their many lawsuits served only to harass defendants, congest court dockets, impose financial and time burdens on defendants, and otherwise improperly burden the judicial system. Various state and federal judges censured and sanctioned Payne and Morales for misconduct, violation of the procedural rules, violation of court orders, or for misconduct under Fed. R. Civ. P. 11.4 Two state judges, the Honorable Robert Scott and the Honorable Kenneth Brown, and one federal judge, the Honorable William F. Downes, enjoined Payne and Morales from filing new suits or from raising issues which were previously resolved in prior lawsuits unless they complied with specific filing requirements as authorized by Tripati v. Beaman, 878 F.2d 351 (10th Cir. 1989).⁵

---

⁵See Morales and Payne v. Baca et al., CIV 01-634 WFD [Docs. 57, 61]; in Payne v. Brennan et al., 2001-07794 (On 5/16/2002, State District Court Judge Kenneth Brown entered an injunction granting defendants’ motion for injunctive relief prohibiting William H. Payne from filing lawsuits in New Mexico court without representation of licensed counsel); in Morales and Payne v. Brennan et al., 2002-3425 (July 8, 2002, then State District Court Judge Robert H. Scott permanently enjoined Morales from filing any pleadings in state court unless represented by counsel. Judge Scott is now a Magistrate Judge with the United States District Court in New Mexico. In both cases, Payne and Morales were deemed “vexatious” litigants who impair, impede, delay and obstruct the administration of justice. In both district court cases, Payne and Morales sought to appeal the dismissals of their cases and the injunctions entered against them. In both instances, the appeals were dismissed or denied. A court may judicially notice records of sister courts. See, e.g., United States v. Estep, 1060, 1063 (10th Cir. 1985) (judicial notice is particularly applicable to court records of litigation closely related to the case before it).

CV- 2000-10289 Defendants: assistant US attorney Robert J Gorence, US attorney John J Kelly, assistant US attorney Manuel Lucero, assistant US attorney Jan Elizabeth Mitchell, magistrate judge Don F Svet CV-2001-03118 Defendants: New Mexico state judge Theodore C. Baca, US attorney Norman C. Bay, assistant US attorney Phyllis A. Dow, assistant US attorney Raymond Hamilton, law firm Rodey, Dickason, Sloan , Akin & Robb PA, and judge Martha Vazquez

CV-2001-06293 Defendants: assistant US attorney John J Zavits, judge William F. Downes, law firm French & Associates PC

CV 2000-10278 Defendants: Sandia Corporation - Sandia National Laboratories, American Telephone and Telegraph Corporation, Lockheed Martin Corporation, law firm Krehbiel, Bannerman & Horn, lawyer John A. Bannerman, Phoenix EEOC administrator Charles Burtner, RESPONDENT magistrate judge Lorenzo F. Garcia, Sandia labs employee Michael G. Robles and lawyer Carol Lisa Smith

CV 2001-05900 Defendants: assistant US attorney Phyllis A. Dow, judge William F. Downes, law firm Rodey, Dickason, Sloan , Akin & Robb PA

Notwithstanding the federal or state courts’ efforts to bar Payne and Morales from engaging in this type of misconduct, they continue with their efforts to frustrate courts, burden litigants, sap judicial resources, impose litigation costs on blameless defendants, and congest court dockets.

Their latest attempt to revive this present long-dormant lawsuit and to resurrect arguments which were rejected decisively long ago by this District Court, and affirmed on appeal, is only the most recent example of these plaintiffs’ disregard for orderly judicial processes. They seek to have this lawsuit, like Banquo’s ghost, resurrected from the dead.⁶ Payne’s and Morales’ conduct is reprehensible, and it is sanctionable, both under the Court’s clear authority to regulate its own docket and under the factors outlined in Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992).

Court’s Authority to Control its Docket
A party’s right of access to the courts is neither absolute nor unconditional. Tripati v. Beaman, supra, at 353 (10th Cir. 1989). In particular, there is no constitutional right of access to the courts to prosecute actions that are frivolous or malicious. Id.; Phillips v. Carey, 38 F.2d 207, 208 (10th Cir. 1981); Johnson v. Stock, No. 03-4219, 2005 WL 1349963, at *3 (10th Cir. Jun. 8, 2005) (in imposing filing restrictions, the court noted that the plaintiff’s “vexatious litigiousness has resulted in an immense waste of judicial resources”). When a litigant abuses filing privileges, restrictions and sanctions are appropriate, as “[t]he goal of fairly dispensing justice is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous claims.” In re Winslow, 17 F.3d 314, 315 (10th Cir. 1994) (internal punctuation omitted).

Payne’s and Morales’ abuses are legion. Not only have they filed multiple frivolous lawsuits, but they have also used their pleadings to heap abuse, disrespect and invective on parties, opposing counsel and judges.

Courts have the inherent power to impose a variety of sanctions on both litigants and attorneys in order to regulate their docket, promote judicial efficiency, and deter frivolous filings. Stafford v. Comm’r of Internal Revenue, 805 F.2d 895, 896 (10th Cir. 1986), citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 765, 100 S. Ct. 2455, 2463 (1980), (discussing the “‘well-acknowledged’ inherent power of a court to levy sanctions in response to abusive litigation practices”).

Sanctions and filing restrictions are an appropriate exercise of a court’s power to protect itself from the deleterious impact of repetitive, unfounded pro se litigation. Johnson v. Cowley, 872 F.2d 342, 344 (10th Cir. 1989); Olson v. Coleman, 997 F.2d 726, 729 (10th Cir. 1993) (pro se litigant filing in forma pauperis nevertheless ordered to pay sanctions for his “history of vexatious and frivolous filings”); Werner v. Utah, 32 F.3d 1446, 1447-48 (10th Cir. 1994).

There is strong precedent establishing the inherent power of federal courts to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances . . . . Even onerous conditions” may be imposed upon a litigant as long as they are designed to assist the district court in curbing the particular abusive behavior involved.

Tripati v. Beaman, supra, at 352 (internal punctuation omitted).

In addition to this inherent power, the Court also has authority under a variety of statutes and court rules to impose monetary sanctions “[t]o deter frivolous and abusive litigation and promote justice and judicial efficiency,” Braley v. Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987). See, e.g., 28 U.S.C. § 1651(a) (federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions”); 28 U.S.C. § 1927 (an attorney or other person conducting litigation in federal court may be required to satisfy personally any excess costs, expenses and attorney fees if he or she “multiplies the proceedings in any cases unreasonably and vexatiously”); Fed. R. Civ. P. Rule 11(c) (authorizing the court to “impose an appropriate sanction” on attorneys or parties who file pleadings for improper purposes or who present claims not warranted by existing law or by nonfrivolous argument for the extension or modification of existing law).

The Court thus finds that it has authority to impose sanctions on Payne and Morales for their disregard of court procedure and their well-documented history of vexatious and abusive litigation.

§ 455. Disqualification of justice, judge, or magistrate judge

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. ...

Ehrenhaus Analysis
Before sanctions are imposed, the Court is required to conduct an assessment pursuant to Tenth Circuit precedent. Ehrenhaus supra; and Meade v. Grubbs, 841 F.2d 1512 (10th Cir. 1988); M.E.N. Co. v. Control Fluidics, Inc., 834 F.2d 869 (10th Cir. 1987). The Ehrenhaus factors which the Court must consider are: (1) the degree of actual prejudice to the opposing party; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would likely be taken as a sanction for non-compliance; and, (5) the efficacy of lesser sanctions.

Degree of Prejudice to Defendants In the present case, there can be no doubt that Defendants have been prejudiced. Morales’ claims against Defendant were dismissed by the Honorable Santiago E. Campos on April 30, 1998 [Doc. 42]. Thereafter, Judge Campos granted summary judgment in favor of Defendants dismissing Payne’s claims [Doc. 72]. Both Payne and Morales filed a Notice of Interlocutory Appeal. The Tenth Circuit dismissed the interlocutory appeal. Following final judgment dismissing this case, a new appeal was taken to the Tenth Circuit. On December 13, 2000, the Tenth Circuit Court of Appeals affirmed the dismissal of this lawsuit [Doc. 80]. Thus, this case has been closed for over six and one-half years. Even though they lost this lawsuit and this case has long been closed, Payne and Morales now seek to set aside the judgment, claiming that the Court was without jurisdiction to dismiss the case. Plaintiffs’ jurisdictional arguments are specious.7 Payne’s and Morales’ argument that the Court lacked jurisdiction is without merit. The Court clearly had both in personam and subject matter jurisdiction. When a party actively participates in litigation and seeks affirmative relief from the court, he thereby waives any right to assert a lack of personal jurisdiction. Feldman Inv. Co. v. Conn. Gen. Life Ins. Co., 78 F.2d 838, 841 (10th Cir. 1935); Hunger United States Special Hydraulics Cylinders Corp. v. Hardie-Tynes Mfg. Co., 203 F.3d 835 (Table, text in Westlaw), No. 99-4042, 2000 WL 147392, at *3 (10th Cir. Feb. 4, 2000). The pertinent inquiry is whether the party demonstrated a willingness to submit a dispute to judicial resolution, ORI, Inc. v. Lanewala, 147 F. Supp. 2d 1069, 1074 (D. Kan. 2001); see also, Thompson v. United States, 312 F.2d 516, 519 (10th Cir. 1962) (discussing a party’s “voluntarily invok[ing] the judgment of the court”). In this case, Plaintiffs submitted themselves to the jurisdiction of the Court by filing their complaint and seeking affirmative relief. Thus, their own lawsuit vested the Court with in personam jurisdiction.

---

⁷In addition to their Motion to Void Judgment for Lack of Jurisdiction [Doc. 81], the plaintiffs also filed a “Motion to Void Order of Reference for Lack of Jurisdiction” [Doc. 93], docketed as a Motion for Reconsideration, and a “Notice and Authorities” in support thereof [Doc. 94], both filed July 26, 2007. These latter two submissions are prolix and unclear, but Plaintiffs apparently seek to “void” the Order of Reference previously entered in this case on the ground the Court lacks jurisdiction.

---

Furthermore, there is no question as to the Court’s subject matter jurisdiction. Plaintiffs invoked this Court’s jurisdiction under the Freedom of Information Act. [Complaint, Doc. 1]. Under 28 U.S.C. § 1331, the district courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006). Plaintiffs’ claim invoked rights and remedies under the Freedom of Information Act and a United States court has original jurisdiction to resolve matters arising under a federal statute. Thus, it is patently clear that the Court was vested with subject matter jurisdiction.

While a court has a duty to inquire into its subject matter jurisdiction at any stage in the litigation, Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S. Ct. 1235, 1244 (2006), there is no basis for making any such inquiry in this case, as it was clear six and one-half years ago just as it is clear now, that this Court had jurisdiction to decide the case.

When Payne and Morales filed their motion to set aside judgment [Doc. 81], Defendant was forced to contact counsel who, in turn, had to retrieve old documents and pleadings, research the case and file a response to the pleadings filed by Payne and Morales. All of this time and effort detracts from Defendant’s statutory responsibilities and imposes burdens and costs on Defendant as well as Defendant’s attorney, the United States Attorney for the District of New Mexico.

The litigation history for these pro se Plaintiffs indicates that they take a gleeful delight in burdening governmental agencies, federal defendants, federal judges, federal attorneys and others. It is clear to this Court that Plaintiffs’ conduct is intentional and pursued with the idea of imposing burdens and hardships on defendants.

Interference With the Judicial Process
Here, again, the evidence is clear that the Court has been prejudiced. Over the course of many years, Payne and Morales filed multiple lawsuits and virtually flooded state and federal dockets with frivolous pleadings. For example, in the present case, there are 92 docket entries of record. Each docket entry represents a burden on a defendant, a court officer, a judge and others. In days of declining court budgets and increasing criminal workloads, the time devoted to handling frivolous litigation, such as the present case, wastes precious judicial resources. It is abundantly clear that is part of Payne’s and Morales’ goal. The pro se litigants’ most recent round of pleadings compelled the Court to review closed cases, assign a new judge, issue new orders, including the Order to Show Cause, and otherwise spend time and judicial resources that were not necessary. The Court concludes that it has been prejudiced as a result of this frivolous litigation. Culpability of the Litigants If a litigant is represented by counsel and the misconduct is occasioned by an attorney rather than the party, then, the attorney is the proper individual to suffer the consequence of any sanction. In re Sanction of Baker, 744 F.2d 1438, 1442 (10th Cir. 1984)(if the fault lies with the attorneys, that is where the impact of the sanction should be lodged); see also M.E.N. Co. v. Control Fluidics, Inc., supra, at 873-74. Here, however, Payne and Morales represent themselves, and are therefore solely responsible for their own misconduct. Prior Warnings It is inappropriate to impose sanctions unless prior warning is given an offending party that particular conduct is inappropriate and the party could be subject to sanctions. Willner v. Univ. of Kansas, 848 F.2d 1023, 1030 (10th Cir. 1988). In this case, numerous warnings given by various federal and state judges have gone unheeded. Indeed, in Morales v. Baca, No. CIV 01-634 WFD, a prior lawsuit initiated by these litigants, the trial judge, the Honorable William F. Downes, stated:

The Court finds the Plaintiffs’ Complaint to be a frivolous, ranting diatribe grounded in obstinacy, ignorance, and unbridled contempt for the law--a continuation of the Plaintiffs’ litigious pattern, spanning nearly a decade. Plaintiffs sue anyone who has the audacity to disagree with them. The Court has tolerated Plaintiffs’ tantrums long enough. Plaintiffs will either show deference to the Constitution of the United States and the statutes and rules lawfully promulgated thereunder or pay the price.

[Doc. 57, p. 15].

Even after Judge Downes’ stern warning and entry of an order enjoining the filing of new civil actions, [Civ. 01-634, Doc. 61], these pro se litigants continued to file pleadings [Docs. 53, 59, 60, 62, 63, 68, 69, 72]. This caused Judge Downes to write:

The Plaintiffs’ continued frivolous claims against defendants amount to harassment and contemptible disrespect for the judicial process and its participants--both judges and attorneys. * * * After having made itself abundantly clear, the Court now recognizes that Plaintiffs have no intention of accepting the Court’s determination, as they continue to file frivolous motions. This Court has made its final determination in this matter. It will no longer consider Plaintiffs’ motions . . . .”

[Doc. 74].

Given their frivolous litigation history, Payne and Morales were permanently enjoined by State District Judges William Brown and Robert Scott from filing any new matters in any New Mexico State court. So, too, Payne and Morales were permanently enjoined in federal court from filing new lawsuits or raising issues which were previously dismissed by the court. (See Judge Downes’ order in Morales v. Baca, Doc. 57).

Within the last month, Senior Judge John Edwards Conway in Payne v. Sandia Corp., et al., No. CIV 92-1452 JC, directed the Clerk of the Court to no longer receive any pleadings filed by these two litigants.⁸ It is undisputed that they have been warned that their conduct is subject to sanctions.

---

⁸In Judge Conway’s case, 92-1452, the trial Court ruled against Payne by way of summary judgment on August 23, 1994 [Docs. 154, 155]. Payne appealed and, on March 3, 1999, the Tenth Circuit affirmed [Doc. 167]. In that case, as in this, Payne sought to reopen the litigation years after it was over.

Efficacy of Lesser Sanctions
In this case, lesser sanctions have been imposed, but to no avail. Payne and Morales have been sanctioned for their litigation conduct on several prior occasions.⁹ In addition to the monetary sanctions, none of which was apparently ever collected, both litigants were repeatedly warned by judicial officers that their conduct was inappropriate and that their lawsuits were frivolous. These warnings were ignored. After consideration of the Court’s legal authority, the Ehrenhaus factors and a review of the state and federal injunctions preventing these litigants from further burdening defendants and the court system, the Court determines that sanctions are appropriate.

---

⁹In this present case, Judge Svet ordered Plaintiffs to pay sanctions of $625.00 for violating Court orders [Doc. 41]. In Morales v. Lockheed Martin Corp., et al., CIV 97-350 LH/DJS, the court ordered sanctions of $2,260.85 for failing to comply with discovery obligations and court orders. In Payne v. EEOC et al., CIV 99-270 LFG/KBM, the court sanctioned Payne for Fed. R. Civ. P. 11 violations in the amount of $912.50.

8 New Mexico citizen Don Svet commits two third degree felony acts of extortion in writing.

COUNT 1 Svet orders $625 being taken from citizens Morales and Payne without due process [see http://www.prosefights.org/nmlegal/supremecourt/svet1.htm].

COUNT 2 Don Svet issues order of garnishment for $1,793.56 [see http://www.prosefights.org/nmlegal/supremecourt/svet2.htm] without any cause of action.

COUNT 1 third degree felony extortion crime occurred March 10, 1998.

COUNT 2 third degree felony extortion crime occurred April 20, 1999.

Svet and others were sued in New Mexico 12 person jury trial lawsuit 2000-10289 guaranteed inviolate by New Mexico and federal constitutions on October 20, 2000 for replevin and harassment for return of the $625 taken without due process hearing.

New Mexico 2000-10289 was fraudulently removed to federal court on November 8, 2000 without required certification stating under oath that replevin and harassment were federal questions.

Replevin, of course, is a state, not federal, issue.

Thus Svet and accomplices began to attempt to conceal himself [NMSA 30-01-09 A] from justice and New Mexico 2000-10289 was quashed by fraudulent removal to federal court [NMSA 30-01-09 B(3).

Therefore, tolling of time [NMSA 30-01-09] to bring felony extortion charges against Svet on COUNT 1 stopped 2 years and 8 months into the 5 year statute of limitations specified in NMSA 30-01-08].

Tolling of statute of limitations to bring felony extortion charges against Svet on COUNT 2 stopped 1 years and 7 months into the 5 year statute of limitations specified in NMSA 30-01-08].

Conclusions
In reviewing the dozens of cases filed by these litigants, it is apparent that literally hundreds of thousands of dollars of attorney fees and costs have been spent to protect defendants from these Plaintiffs’ frivolous lawsuits. Unless significant sanctions are imposed and collection efforts pursued by the United States, there is no hope that other defendants will be free from Payne’s and Morales’ abusive lawsuits, or that courts will not be further burdened with their prolixity and frivolousness.

It is clear that this lawsuit was long ago dismissed by a court acting within its jurisdiction, and that the dismissals were affirmed. It is further clear that after being warned not to engage in frivolous litigation, Plaintiffs have again sought to raise the very issues which were dismissed and affirmed. Plaintiffs, in knowing violation that this lawsuit was dismissed and the dismissal affirmed, again filed frivolous pleadings. Their conduct was intentional, malicious and sanctionable, and the undersigned magistrate judge recommends imposition of substantial financial penalties intended to prevent Plaintiffs from engaging in this conduct in the future.

Accordingly, I recommend that Payne and Morales be sanctioned in the amount of $10,000 each, for a total sanction of $20,000 payable to the Clerk of the Court, and the Court further directs that the United States Attorney file an abstract of judgment and proceed to enforce and collect the sanctions imposed on Payne and Morales.

While a $10,000 sanction, per litigant, is high, it is not unprecedented. Indeed, attorneys in this district have had personal sanctions in twice that amount imposed against them for violating court orders. See Vesco v. Snedeker, No. CIV 00-1805 WJ/LCS (D.N.M. July 12, 2002)[Judgment, Doc. 119]. A $10,000 sanction is justified given the repetitive and abusive nature of Plaintiffs’ conduct, and especially given the fact that prior lesser sanction orders have been entered without impact. Moreover, the prior modest sanctions imposed have had no impact in deterring this blatant misconduct. Thus, a penalty sufficient to get the Plaintiffs’ attention and to serve as a future deterrent is necessary.

3 The docket
4 MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION DIRECTED TO DISTRICT OF NEW MEXICO, SANTA FE CHIEF JUDGE MARTHA VAZQUEZ
5 MANDATORY JUDICIAL NOTICE and authorities for void judgment

Recommendation
The Court recommends that Plaintiffs’ pleadings 81, 82, 84, 85, 91, 93 and 94 be stricken, and that Payne be personally sanctioned in the amount of $10,000, and that Morales be sanctioned in the amount of $10,000. Each is directed to pay to the Clerk of the Court the $10,000 sum within thirty days. If this payment is not made, the Court recommends that the United States be directed to take all reasonable and necessary action to enforce the sanction orders and secure payment. The Court further recommends that the Clerk be directed to accept no further pleadings from Plaintiffs in this case.

Failure to bring Brzezinski to justice casts a dark shadow of corruption on judicial and government branches.

Further, a failure to bring Brzezinski, and others, to justice may be an invitation for retaliation by those aggrieved by what Brzezinski and others have done.

The court in coming to a fine often thousand dollars ($ 10.000) bases its decision on a singular case that involves practicing attorney's but not pro-se litigants. In order to provide a more equitable and fair comparison is the case of Monroe v. U.S. Dept of Justice (10th Cir. 2002) where as a pro-se litigant, a fine and sanction of only five hundred dollars ($500) was levied by the court, even after the court had warned Mr. Monroe about possible sanctions " if he were to continue filing frivolous appeals, there would be monetary sanctions as well as filing restrictions."

In the citation of Demo v. Keating, John Doe Warden George Bush U.S. President (10th Cir. 1/20 2003). There is included the relevant quote from Wemer v. Utah 32 F. 3d, 1446,1447,1448 (10th Cir. 1994) where it is noted that due to fifty filings in Federal District Court, and because of twenty-two appeals a sanction consisting of only filing restrictions was utilized by the court. In Winslow v. Homer (In re Winslow) 17 F. 31 711,715 (10th Cir. 1994). The court in this case used solely a penalty of filing restrictions even though the pro-se litigant had registered seventeen (17) appeals. The case of Ketchum v. Cruz 961, F. 2d 916, 918 (10th Cir. 1998), where fifteen lawsuits had been registered with the sanction being one of filing restrictions.

In a case quoted by the court involving Tripate v. Beaman, 878, F. 2d, 351, 357 (10th Cir. 1989). The use of the penalty of filing restrictions was regarded as a serious sanction. This case as well as those noted in the previous paragraphs consists of pro-se litigants, none of whom were sanctioned any where near the ten thousand dollars ($10.000) utilized by this court.

In another case involving sanctions is Sam Beilue v. International Brotherhood of Teamsters Local No. 492 (10th Cir. July, 2001). Wherein it is stated " there must be sufficient nexus between noncompliance with the Rules, and the amount of fees, and expenses awarded as a sanction" quoting Tumball v. Wilkens, 893, F. 2d, 256,259 (10 Cir. 1990) (per curiam). In another case involving a pro-se litigant was that of Miller v. United States of America and Internal Revenue Service (No. 87-2969 ^t Cir. Feb 8, 1989), where a monetary sanction of only fifteen hundred dollars ($ 1500) was considered an appropriate amount by the court for pursuing meritless constitutional claims through the U.S. Court of judicial review. This was done after a warning had been issued five years (5) prior to the issuance of the actual fine.

The undersigned respectfully asks this court to reconsider its decision of fining both litigants a total often thousand dollars each in light of the various cases previously cited where no other pro-se litigant suffered such an exorbitant sum. The litigants are asking the court to use similarly situated pro-se litigants and the penalties they've incurred as a basis for any sanction the court deems necessary. None of the cases cited in the Tenth Circuit involving pro-se litigants even remotely approaches the ten thousand dollar fine ($10.000) utilized by this court.

We have 10 days starting from July 31, 2007 2:49 PM to respond to Garcia.

Rule 6(a) states "When the period of time prescribed or allowed to respond is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computations.

We also get additional 3 days by Rule 6(e) since we were served by mail.

Calculations show ugust 17, 2007 our filing must be postmarked.

Judge Lorenzo Garcia threats

Any judgment rendered by a court which lacks jurisdiction, either of the subject matter of the parties, or lacks inherent power to enter the particular judgment, or entered an Order which violated due process or was procured through extrinsic or collateral fraud, is null and void, and can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court.

2 Docket of CIV NO 97 0266 SC/DJS shows that on 05/16/2007 plaintiffs elected to file Motion to Set Aside Judgment as is their right under the Federal Rules of Civil Procedure. Motion was properly docketed on May 16, 2007.

3 Minute order of clerk MATTHEW J. DYKMAN transfers case from judge Vazquez on June 6, 2007. See docket entry 86.

4 Judge Vazquez issues ORDER OF REFERENCE on June 14, 2007, 8 days after she was removed from case containing the threat

[i]mposition of sanctions, including censure, striking pleadings, imposition of fines and/or incarceration of the Plaintiffs. ...

See docket entry 87.

5 Petitioners file MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION on June 16, 2007 from Bozeman, MT in reponse to Vazquez ORDER OF REFERENCE both by certified return receipt requested mail and by Internet. Motion is not dockted until June 21, 2007. See docket entry 91.

Petitioners had filed of extension of time to file in case because of vacations on June 12, 2007.

So Vazquez intentionally and maliciously filed ORDER OF REFERENCE knowing petitioners would not be available.

PACER docket accessed through wireless Internet in Bozeman revealed Vazquez' treachery.

7 Judge Armijo apparently granted petitioners' MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION

in an enveloped postmarked June 18, 2007.

Annotation THERE ARE NO DOCUMENTS ATTACHED appears to indicate that judge Armijo has voided Vazquez threat.

No copy of the order was included in the envelope. Proper rules of practice have not been followed, a necessary act has been omitted.

8 June 21, 20007 Armijo threatens petitioners [see BASIS OF MOTION for petitioners' reponse].

[t]he imposition of sanctions, including but not limited to, censure, striking pleadings, and imposition of fines. ...

Payne and Morales are directed to file their written responses and supporting affidavits no later than July 25, 2007.

ORDER OF REFERENCE

THIS MATTER is before the Court sua sponte.1

Matter before the court is to void judgment CIV NO 97 0266 SC/DJS and properly process criminal complaint affidavit included in reply, not attack and threaten petitioners.

A court is authorized by statute to entertain jurisdiction in a particular case only, and undertakes to exercise the jurisdiction conferred in a case to which the statute has no application, the judgment rendered is void.

11 Judge M Christina Armijo writes in Order of Reference filed 6/21/07 [Docket entry 89]

This case was dismissed by the District Court on October 27, 1999 [Doc. 73], and the dismissal was affirmed by the Tenth Circuit Court of Appeals on December 13, 2000 [Doc. 80]. On May 16, 2007, pro se Plaintiffs William H. Payne and Arthur R. Morales filed pleadings in this case [Docs. 81, 82], seeking to set aside the Judgment previously entered [Doc. 73], or otherwise seeking to re-open this case.

Any judgment rendered by a court which lacks jurisdiction, either of the subject matter of the parties, or lacks inherent power to enter the particular judgment, or entered an Order which violated due process or was procured through extrinsic or collateral fraud, is null and void, and can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court.

Such a judgment is void from its inception, incapable of confirmation or ratification, and can never have any legal effect.

Statement "or otherwise seeking to re-open this case." violates void judgment rules because, from Federal Rule of Civ. P. 60(b)(4) standpoint, a case based on a voidable judgment is never closed. See Downes' statement in See docket entry 91.

Res judicata does not apply to a void judgment motion.

Further, plaintiffs filed to void jugment in CIV NO 97 0266 SC/DJS specifically because it did not violate judge Downes, Garcia, Brown, and Scotts voidable, but not yet void judgments.

Judges Downes [3 cases] and Bensen [2 cases] have voidable judgments because of subject matter jursdiction.

Judges Garcia, Scott, Conway, and Hansen voidable judgments because of constitutional violations.

Voidable judgment are, however, not void.

10 Judge M Christina Armijo writes in Order filed 6/21/07 [Docket entry 89]

The Court now issues this Order of Reference directing that the district’s Chief Magistrate Judge, Lorenzo F. Garcia, issue a report and recommendation on the Motion to Void Judgment for Lack of Jurisdiction Directed to District of New Mexico, Santa Fe Chief Judge Martha Vazquez [Doc. 81]. Further, the Chief Magistrate Judge shall determine whether the Plaintiffs’ filing of pleadings in this case constitutes a violation of the federal injunction previously entered prohibiting William H. Payne and Arthur R. Morales from filing new lawsuits or re-asserting claims which have

---

1This matter was assigned to The Honorable M. Christina Armijo because the former trial judge, the Honorable Santiago Campos, is deceased.

---

previously been dismissed (Arthur R. Morales and William H. Payne v. Theodore C. Baca, et al, CIV 01-634, (Docket No. 61).2 Judge Garcia may undertake whatever legal analysis he deems necessary and may conduct hearings to determine if there is a violation of the injunction and, if so, to recommend the imposition of sanctions, including but not limited to, censure, striking pleadings, and imposition of fines. Judge Garcia shall issue his Report and Recommendation to the Court in accord with the requirements of 28 U.S.C. § 636(b)(1).

SO ORDERED this 21st day of June, 2007, in Albuquerque, New Mexico.

Any judgment rendered by a court which lacks jurisdiction, either of the subject matter of the parties, or lacks inherent power to enter the particular judgment, or entered an Order which violated due process or was procured through extrinsic or collateral fraud, is null and void, and can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court.

Such a judgment is void from its inception, incapable of confirmation or ratification, and can never have any legal effect.

A void judgment must be dismissed, regardless of timeliness if jurisdiction is deficient.

A court is authorized by statute to entertain jurisdiction in a particular case only, and undertakes to exercise the jurisdiction conferred in a case to which the statute has no application, the judgment rendered is void.

Any judgment rendered by a court which lacks jurisdiction, either of the subject matter of the parties, or lacks inherent power to enter the particular judgment, or entered an Order which violated due process or was procured through extrinsic or collateral fraud, is null and void, and can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court.

Such a judgment is void from its inception, incapable of confirmation or ratification, and can never have any legal effect.

A void judgment must be dismissed when brought before a court, regardless of timeliness, if jurisdiction is deficient under Federal Rule Civ. P. 60(b)(4).

Res judicata does not apply to a void judgment motion.

An opportunity for a hearing before a competent and impartial tribunal on proper notice is one of the essential elements of due process of law.

12 Judge Lorenzo Garcia was a defendant in New Mexico 12 person jury trial CV 2000-10278 which was fraudulently removed to federal court and are voidable.

13 Judge William Downes was a defendant in New Mexico 12 person jury trial CV-2001-06293 and CV 2001-05900 both of which were fraudulently removed to federal court and are voidable.

14 Judge Brown was a defendant in New Mexico 12 person jury trial CV 2002-03425.

15 Title 18 crimes have been committed against plaintiffs with all evidence in writing in court records by New Mexico chief judge Parker, Wyoming chief judge Downes, Utah chief judge Benson, and New Mexico judges Conway, Hansen, Garcia, Scott, Brown and Vazquez in their attempts to avoid monetary settlement for wrongs done us by Sandia National Laboratories.

16 Title 18 § 241 and 242 criminal complaint affidavits [See appendix A] have been filed with appropriate military authority under Title 18 § 4 on July 24, 2007.

17 MOTION TO VACATE JUDGMENTS FOR LACK OF JURISDICTION UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MANDATORY JUDICIAL and NOTICE AND AUTHORITIES TO VOID JUDGMENT UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA were submitted on July 24, 2007 under a new action unavailable to us in New Mexico.

1 http://www.prosefights.org/nmlegal/dcvoid/dcvoid.htm#motion
2 http://www.prosefights.org/nmlegal/dcvoid/dcvoid.htm#notice

18 Void Judge M Christina Armijo Order of Reference filed 6/21/07 [Docket entry 89] for reasons given in II. BASIS OF MOTION.

19 Recuse all judicial officers in New Mexico.

20 Issue NO CONTACT ORDER preventing all judicial officers in New Mexico or the emmisaries from approaching closer than 100 feet from plaintiffs.

21 Transfer CIV NO 97 0266 SC/DJS to UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA for proper void judgment motion processing and settlement.

Respectfully submitted,


_________________________
William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111


_________________________
Arthur R. Morales
465 Washington St SE
Albuquerque, NM 87108

Date: ____________________

Pro se litigants

CV- 2000-10289 Defendants: assistant US attorney Robert J Gorence, US attorney John J Kelly, assistant US attorney Manuel Lucero, assistant US attorney Jan Elizabeth Mitchell, RESPONDENT magistrate judge Don F Svet

CV-2001-03118 Defendants: New Mexico state judge Theodore C. Baca, US attorney Norman C. Bay, assistant US attorney Phyllis A. Dow, assistant US attorney Raymond Hamilton, law firm Rodey, Dickason, Sloan , Akin & Robb PA, and RESPONDENT judge Martha Vazquez

CV-2001-06293 Defendants: assistant US attorney John J Zavits, RESPONDENT judge William F. Downes, law firm French & Associates PC

CV 2000-10278 Defendants: Sandia Corporation - Sandia National Laboratories, American Telephone and Telegraph Corporation, Lockheed Martin Corporation, law firm Krehbiel, Bannerman & Horn, lawyer John A. Bannerman, Phoenix EEOC administrator Charles Burtner, RESPONDENT magistrate judge Lorenzo F. Garcia, Sandia labs employee Michael G. Robles and lawyer Carol Lisa Smith

CV 2001-05900 Defendants: assistant US attorney Phyllis A. Dow, RESPONDENT judge William F. Downes, law firm Rodey, Dickason, Sloan , Akin & Robb PA

Tuesday July 24, 2007 14:02

Certified return receipt requested

http://www.prosefights.org/nmlegal/dcvoid/dcvoid.htm#feehan

Col. Terrence A. Feehan, Commander
Nuclear Weapons Center
2000 Wyoming Bvld SE
KAFB, NM 87116

Dear Col. Feehan:

Title 18 crimes have been committed against us with all evidence in writing in court records by New Mexico chief judge Parker, Wyoming chief judge Downes, Utah chief judge Benson, and New Mexico judges Conway, Hansen, Garcia, Scott, Brown and Vazquez in their attempts to avoid monetary settlement for wrongs done us by Sandia National Laboratories.

In 1992 Sandia manager James Gosler, we learned when the FBI declassified a Wayne R Gilbert letter on December 8, 2006, turned William Payne into the FBI Albuquerque office for some yet unknown national security crime. Payne denys committing any crimes. Payne was fired from Sandia Labs in 1992.

Legal efforts to obtain settlement were thwarted when judges Parker, Downes, Benson, Conway, Garcia, Scott, Brown and Vazquez exceeded their jurisdiction.

Arthur Morales and Manuel Garcia sued Sandia labs as leaders in a class action lawsuit for race discrimination. Sandia was forced into an expensive settlement. Subsequently Sandia Labs retaliated against Morales so Morales sued twice.

Hansen thwarted Morales' legal efforts by exceeding his jurisdiction by denying right to trial by jury.

In 1996 Morales and Payne joined forces to legally do something about judicial misconduct. Our joint legal effort was  CIV NO 97 0266 SC/DJS.

This case was dismissed improperly by the late judge Santiago Campos.

We demanded jury trial guaranteed inviolate by 7^th Amendment to US Constitution and 28 USC Rule 38.

Therefore we invoked right to file to void judgment or order under Federal Rule of Civ. P. 60(b)(4) allows

Any judgment rendered by a court which lacks jurisdiction, either of the subject matter of the parties, or lacks inherent power to enter the particular judgment, or entered an Order which violated due process or was procured through extrinsic or collateral fraud, is null and void, and can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court.

Docket of CIV NO 97 0266 SC/DJS shows that on 05/16/2007 plaintiffs elected to file Motion to Set Aside Judgment as is their right under the Federal Rules of Civil Procedure. Motion was properly docketed on May 16, 2007.

Because of this action we are being threatened by judges

[i]mposition of sanctions, including censure, striking pleadings, imposition of fines and/or incarceration of the Plaintiffs. ...

and

[t]he imposition of sanctions, including but not limited to, censure, striking pleadings, and imposition of fines. ...

1 http://www.prosefights.org/nmlegal/dcvoid/dcvoid.htm#motion
2 http://www.prosefights.org/nmlegal/dcvoid/dcvoid.htm#notice

We have been advised to invoke

Title 18 § 4. Misprision of felony

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

You are the nearest military authority.

So we enclose the original of our criminal complaint affidavit which is posted on Internet at http://www.prosefights.org/nmlegal/dcvoid/dcvoid.htm#criminal for your proper processing.

Evidence of guilt of the accused in all in writing in court records so investigation should lead to prompt issuance of summons.

We ask to receive copies of the summons when they are issued.

Sincerely,


William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111
bpayne37@comcast.net


Arthur R. Morales
465 Washington St SE
Albuquerque, NM 87108
amorales58@comcast.net

distribution

Ms Nancy Mayer-Whittington
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
U.S. District Court Clerk’s Office
333 Constitution Avenue, NW, Room 1225,
Washington, DC 20001

U.S. House of Representative Committee on the Judiciary
United States Senate Committee on the Judiciary

WILLIAM H. PAYNE and
ARTHUR R. MORALES, Plaintiffs,

vs. CIVIL NO. 97-266 MCA/DJS

NATIONAL SECURITY AGENCY,
Defendant. ORDER OF REFERENCE

THIS MATTER is before the Court sua sponte.1

This case was dismissed by the District Court on October 27, 1999 [Doc. 73], and the dismissal was affirmed by the Tenth Circuit Court of Appeals on December 13, 2000 [Doc. 80]. On May 16, 2007, pro se Plaintiffs William H. Payne and Arthur R. Morales filed pleadings in this case [Docs. 81, 82], seeking to set aside the Judgment previously entered [Doc. 73], or otherwise seeking to re-open this case.

The Court now issues this Order of Reference directing that the district’s Chief Magistrate Judge, Lorenzo F. Garcia, issue a report and recommendation on the Motion to Void Judgment for Lack of Jurisdiction Directed to District of New Mexico, Santa Fe Chief Judge Martha Vazquez [Doc. 81]. Further, the Chief Magistrate Judge shall determine whether the Plaintiffs’ filing of pleadings in this case constitutes a violation of the federal injunction previously entered prohibiting William H. Payne and Arthur R. Morales from filing new lawsuits or re-asserting claims which have 2Pro se Plaintiffs’ access to the Court was not absolutely barred. Plaintiffs could file pleadings as long as they complied with the requirements outlined in the attachment, Appendix A, to the Honorable William F. Downes’ injunctive order. [Id.] See also, Tripati v. Beaman, 878 F.2d 351, 354 (10th Cir. 1989). 2 previously been dismissed (Arthur R. Morales and William H. Payne v. Theodore C. Baca, et al, CIV 01-634, (Docket No. 61).2

Judge Garcia may undertake whatever legal analysis he deems necessary and may conduct hearings to determine if there is a violation of the injunction and, if so, to recommend the imposition of sanctions, including but not limited to, censure, striking pleadings, and imposition of fines. Judge Garcia shall issue his Report and Recommendation to the Court in accord with the requirements of 28 U.S.C. § 636(b)(1).

SO ORDERED this 21st day of June, 2007, in Albuquerque, New Mexico.

__________________________________________
THE HONORABLE M. CHRISTINA ARMIJO
UNITED STATES DISTRICT JUDGE

1This matter was assigned to The Honorable M. Christina Armijo because the former trial judge, the Honorable Santiago Campos, is deceased.

Case 1:97-cv-00266-MCA-LFG Document 89 Filed 06/21/2007 Page 2 of 2

Payne received in the mail



but with no copy of Minute Order.

63 New Mexico criminal complaint 12313-03 filed against judge William F Downes was dismissed by judge Christina Jaramillo after assistant district attorney Pete Ross gave false statement to the court to assume prosecutorial control and issued Nolle Prosequi.

Evidence of Downes guilt are the three New Mexico jury trial lawsuits he ruled on without subject matter jurisdiction.

Jaramillo's dismissal is "an Order which violated due process or was procured through extrinsic or collateral fraud, is null and void, and can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court."

1 I, Jimmy Carter, have read http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#reply and other information on the NSA FOIA lawsuit page.

2 I feel that failure to settle these unfortunate matters properly within the US court system endangers world peace.

3 Therefore, I ask relief asked by plaintiffs be granted.

4 That the criminal complaint affidavit against Zibigniew Brzezinski be properly served.

5 That a grand jury be convened to investigate and recommend remedies to these matters.

6 That my recommendation be implemented with 10 working days.

Respectfully submitted,

_________________________
Jimmy Carter
The Carter Center
carterweb@emory.edu

Date: ____________________

1 I have read

A

Respectfully submitted,

_________________________
Jimmy Carter
The Carter Center
carterweb@emory.edu

Date: ____________________

Pro se litigants

Others have faced the problems of the judiciary not doing their job properly processing a criminal complaint affidvit. Others advised us on a possible solution. A military base complaint.

Kirtland Air Force Base, New Mexico

Col. Terrence A. Feehan
Commander

Let's verify tht Feehan is, in fact, base commander and get a mailing adddresss.

NUCLEAR WEAPONS CENTER (NWC)
Commander ........................... CC ............. 846-6567
Executive Officer .................. CCE ........... 846-2494
Secretary ............................... CCS ........... 846-6567

We spoke with secretary Lt Martagon. At first Martagon was not going to give a mailing address. Then there was a long pause while Martagon conferred with some other[s]. The Martagon supplied the information

Col. Terrence A. Feehan, Commander
Nuclear Weapons Center
2000 Wyoming Bvld SE
KAFB, NM 87116
c/o Terry Walker

We have a plan in the case judge Armijo disagrees that

6 When rule providing relief from void judgments is applicable, relief is mandatory and is not discretionary. ⁴

§ 4. Misprision of felony

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

A criminal complaint affidavit directed to Kirtland AFB against federal court miscreants?

Our opposition judges and others are racking up Title 18 USC 241 and 242 [Morales in a minority class member] felony violation of law in writing.