NSA FOIA lawsuit
First posted

Updated
Friday November 2, 2007 06:44

http://www.curevents.com/vb/showthread.php?t=46772

Friday November 2, 2007 06:35

Received November 1, 2007














Friday November 2, 2007 06:37 

Received November 1, 2007










Friday November 2, 2007 06:37 

Received November 1, 2007










Courthouse Case Defendants Say Fed Liens Make Life Hard


Copyright © 2007
Albuquerque Journal

BY SCOTT SANDLIN
Journal Staff Writer


The government squeeze on defendants accused of skimming millions from the Metro Court construction contract has led one to take up maid work to pay for medicine, court documents show.

Sandra Mata Martinez, a former mortgage company employee and the wife of ex- Metro Court administrator Toby Martinez, is making $85 a week cleaning houses, according to her affidavit.

Toby Martinez is selling used cars, and Sandra Martinez is looking for more houses to clean, according to their sworn statements.

The affidavits were filed by the lawyers for the Martinezes in the federal criminal case against them, engineer Raul Parra, former state Sen. Manny Aragon and construction project manager Mike Murphy.

A superseding indictment filed Aug. 23 accuses them of inflating the construction contract with false invoices.

The Martinezes want Senior U.S. District Judge John Edwards Conway to release liens that federal prosecutors have placed on their personal property, including a Mercedes, a Lexus, homes, bank accounts and investments in Solid Gold Casino. They say they lack enough money for daily living expenses, including co-pays on drugs Sandra Martinez needs to treat rheumatoid arthritis.

The government's power from over criminal defendants "is immense," the attorneys say. For the Martinezes m particular, the August indictment, which added new charges, "provides a daunting example of the government's muscle."

Prosecutors have not responded to the motion for release of property.

The new counts, attorneys Mark Fine and Jerry Herrera wrote, look like part of a prosecutorial strategy "to lay economic siege through a volley of orders seizing each and every one of Mr. and Mrs. Martinezes' assets, including the aforementioned family home."

Left with no resources, Toby Martinez was forced to dismiss his attorney, Billy Blackburn, who had represented him for the previous year and a half, the motion says. Fine and Herrera are court-appointed attorneys.

The Martinezes' lawyers argue that prosecutors have no legal authority to attach assets that are unconnected to the alleged crime, especially before trial or conviction.

Money in credit union, accounts frozen by the government includes payroll deposits from Parra "for lawful consulting work that Mr. Martinez was providing" unrelated to the indictment's allegations, the Martinezes say.

According to the affidavits, the Martinezes say they were forced to accumulate debt in order to live after the new charges and forfeiture counts were filed, in August, August,illegallyillegally placed a lien on Mora

A recent 10th Circuit Court Court Appeals decision in an unrelated New Mexico criminal case provides legal ammunition for the Martinezes' argument that prosecutores have illegally restrained their property.

In U.S. v. Dana Jarvis, a drug conspiracy case, the appeals court said the government had illegally placed a lien on Mora County land that Jarvis owned before a crime is alleged to have been committed. The court said prosecutors were attempting to us the legal mechanism of the lien to hold on to the properly "in anticipation of a conviction" and a court ruling that the land is submect to forfeiture.

Albuquerque Journal Saturday October 27, 2007


Received Friday October 19, 2007

http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#envelopea










Received Friday October 19, 2007

http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#envelopeb










Saturday October 20, 2007 09:38

Nuclear-Armed Iran Risks World War, Bush Says

Without this technology our legal project would have never worked.
Case Title: Morales, et al. v. Zavitz, et al. Case Number: 01cv01198 Judge(s): Presiding: District Judge Dee V. Benson Office: Albuquerque

Zavitz blew it and didn't file an entry of appearance before filing in 1198.

But with this technology there is a chance for peaceful settlement.

john.zavitz@usdoj.gov

Are in email contact?

regards
The Oil Drum help viz.

amorales58@comcast.net
bill.leonard@nara.gov
gregory.pannoni@nara.gov
foialo@nsa.gov
julia.eichhorst@ic.fbi.gov
the.secretary@hq.doe.gov
alexander.morris@hq.doe.gov
McClenaghan c/o jayala4@leo.gov
----- 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

Keep in mind that Armijo, nor Garcia, probably wrote the nonsense filed in our NSA lawsuit void judgment efforts. Assistant US attorney Jan Elizabeth Mitchell likely did the writing.

We interacted with Zavitz before on one of the fraudulently removed New Mexico state lawsuits to federal court. Zavitz seemed to be lots smarter than his colleagues at the New Mexico US attorney's office. Mistake. Zavitz failed to file entry of appearance and got a sanctions motion filed against him.
This is likely why the certified entry of appearance.

So let's all hope settlement is in sight before matters get far worse. If you want to get an idea of far worse read World Energy and Population: Trends to 2100.

We support nuclear electric power for our Persian friends as part of settlement of these unfortunate matters because without nuclear power lots of Persians will likely face starvation in the dark and cold.


http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#zavitz







Arrived Tuesday October 16, 2007

Matters are getting worse. And better too. Comcast reports on October 10, 2007

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Payne and Morales rule 60 filing

http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#rule60


No safe harbor.

http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#rule60response







Payne got two copies of order, Morales got none.




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.

The envelope was received Saturday September 22, 2007.

Judge Armijo ordered the clerk not to file any further pleading from Morales and Payne.

Armijo's order is a crime.

The clerk, of course, signed an oath of office.

Good news!







Wednesday September 19, 2007 07:37

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. ...


http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#rule60

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           
Director, National Security Agency                               
National Security Agency                                               
Defendant                                                                          Federal Rule of Civ. P. 60(b)(3),(4)

MOTION FOR RELIEF FROM ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, STRIKING PLEADINGS, AND IMPOSING SANCTIONS FOR REASONS OF MISREPRESENTATION AND OTHER MISCONDUCT AND VOIDABLE JUDGMENTS

1 COMES NOW plaintiffs Arthur R Morales and William H Payne with Federal Rule of Civ. P. 60(b)(3),(4) motion for relief from judge Armijo's ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, STRIKING PLEADINGS, AND IMPOSING SANCTIONS file stamped August 27, 2007.

2 Judge Armijo writes

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).

Robinson v Eng and Bergeson v. Dilworth are summarized



Rule 11 states
(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.

"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" appears to be voidable for reason of lack of jurisdiction.

A court may not render a judgment which transcends the limits of its authority.

Plaintiffs assert that they are in full compliance with Rule 11(b) and any claim by either magistrate judge Garcia or judge Armijo is a misrepresentation cognizable under Rule 60(6)(3).

CIV NO 97 0266 SC/DJS is a jury trial lawsuit which should either settled or heard by a jury to try to resolve these unfortunate matters.

3 Judge Armijo writes

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.

This court was tasked to rule on motion to void judgment, not to attack plaintiffs using false charges. Plaintiffs assert that they are in full compliance with Rule 11(b).

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.

3 Judge Armijo writes

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.

Judge Armijo's statement, "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." is a misrepresentation cognizable under Rule 60(6)(3) because by Rule 5(b) "Service by mail is complete on mailing."

Judge Armijo's conduct was improper because "Motion to Void Order of Reference for Lack of Jurisdiction," [Docs. 93] was not ruled upon before to determine if plaintiffs were required to answer judge Garcia.

This is an Order which violated due process and 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.

4 Judge Armijo writes
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.

Armijo's statement "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." shows violation of her oath of office because all lawsuits are paid for trial by jury lawsuits where evidence of guilt of defendants is in writing.

Judge Armijo was required to sign 5 USC 3331.
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.

Our prima facie case lawsuits were dismissed in violation of our right to trial by jury guaranteed inviolate by 7th Amendment to US Constitution and 28 USC Rule 38 which judges were sworn to uphold.

A court may not render a judgment which transcends the limits of its authority, and a judgment is void if it is beyond the powers granted to the court by the law of its organization, even where the court has jurisdiction over the parties and the subject matter. A a judgment may not be rendered in violation of those constitutional limitations and guaranties.

5 Judge Armijo writes

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.

"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." is a false statement.

Plaintiffs did respond with "Motion to Void Order of Reference for Lack of Jurisdiction," [Docs. 93] was not ruled upon by judge Armijo before to determine if plaintiffs were required to answer judge Garcia.

This violated due process and 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.


Plaintiffs previously addressed our reasons for multiple lawsuits were that our rights were denied because the judges did not comply with their oath of office to uphold the US Constitution.

6 Judge Armijo writes

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].

Motion to void judgment does not require that "new information" be introduced.

Motion to void judgment is appropriate and necessary when Constitution, due process rules, and other factors renders a judgment void. Plaintiffs have taken this appropriate action.

Read MANDATORY JUDICIAL NOTICE AND AUTHORITIES FOR VOID JUDGMENT submitted to the Tenth Circuit Court of Appeals on September 11, 2007 to edify The Court at http://www.prosefights.org/nmlegal/moralesvoid/moralesvoid.htm#350voidnotice.

Assistant US attorney Michell bought up the subject of new material so we obliged Mitchell with the information on Wikipedia on how the 1980 Irag/Iran started.

7 Judge Armijo writes

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).”

Statement " They have accused judicial officers of being felons, of being corrupt and incompetent." is correct.

And plaintiffs have taken appropriate legal steps under federal law to try to bring these felons to justice.

See

1 http://www.prosefights.org/nmlegal/dcvoid/dcvoid.htm#feehan1
2 http://www.prosefights.org/nmlegal/dcvoid/dcvoid.htm#feehan2
3 http://www.prosefights.org/nmlegal/dcvoid/dcvoid.htm#feehan3


Plaintiffs state and federal prima facia case [all evidence of guilt of defendants is writing] federal lawsuit clear demonstrate a corrupt, arrogant, and incompetent collection of lawyers trying to avoid settlement or right to trial by jury guaranteed inviolate by 7th Amendment to US Constitution and 28 USC Rule 38 thus costing the taxpayers much money and grief.

Armijo's statement, "The State District Attorney promptly intervened and dismissed those prosecutions." is true but all were dismissed improperly and are voidable.

9 Judge Arnijo writes

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.

Plaintiffs Morales and Payne jury trial lawsuit guaranteed inviolate by 7th Amendment to US Constitution and 28 USC Rule 38 have been repeated dismissed by judges who violated their oath of office.

Plaintiffs will not tolerate further abuse by the judicial system and therefore a moving to void judgments at the Tenth Circuit and others courts.

10 Judge Arnijo writes

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).

Problem with Armijo's statement "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." is that the Tenth Circuit also issued a voidable judgment.

And, of course, the appeal Case Number: 00-2019 is valid for void judgment motion and will be used if these unfortunate matters are not settled and this motion granted.

11 Judge Armijo writes

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.

" 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." is voidable and action to vacate this case was stated on September 11, 2007 at the Tenth Circuit.

Plan of attack to void judgment started with this void judgment action in New Mexico court to see how the court was going to react. Now that plaintiffs have discovered response by courts we move to the next steps in our legal project.

Here are htm hotlink versions which link to copies of PACER dockets

http://www.prosefights.org/nmlegal/moralesvoid/moralesvoid.htm#350voidmotion http://www.prosefights.org/nmlegal/moralesvoid/moralesvoid.htm#350voidnotice

and

http://www.prosefights.org/nmlegal/tenthvoid/tenthvoid#270voidmotion
http://www.prosefights.org/nmlegal/tenthvoid/tenthvoid#270voidnotice

12 Judge Armijo writes
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.

Remedy for failing to get what we paid for and guaranteed inviolate by 7th Amendment to US Constitution and 28 USC Rule 38 is hidden by the legal profession until recently.

Some judges in the Tenth Circuit violated in writing in court"[a] judgment may not be rendered in violation of those constitutional limitations and guaranties." and managed to violate their oath of office in writing.

Plaintiffs, of course, seek settlement of these unfortunate matters and do not wish to pursue removal of offending judges for violation of oath of office.

13 Judge Armijo writes

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.

Judge Lorenzo Garcia who is defendant in CV 2000-10278 and was presiding judge in voidable 99 cv 270.

Garcia flaunts disregard for 28 USC
§ 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. ...

So Garcia should not have been selected by magistrate by judge Armijo and Garcia should have disqualified himself under 28 USC § 455.

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.

Garcia was not disqualified; therefore, ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, STRIKING PLEADINGS, AND IMPOSING SANCTIONS is voidable.

14 Judge Armijo writes
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.
"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." is a false claim.

Motion to void judgment is to void judgment when constitution, due process rules, and other factors renders a judgment void.

"The Court concludes that it has power to impose sanctions on these Plaintiffs." is also false since plaintiffs followed the law.

To the contrary judge Armijo does not follow court rules which requires ruling
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].

RELIEF SOUGHT

16 Vacate
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

CERTIFICATE OF SERVICE

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


Docket of 97cv266 as of Wednesday September 5, 2007

The clerk's office docketed both our motions for extension of time and correction
Stricken time motion
Stricken correction motion

Pdf of Armijo's order

http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#armijoorder





























IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

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

vs. No. CIV 97-266 MCA/LFG

NATIONAL SECURITY AGENCY,
Defendant.

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, STRIKING PLEADINGS, AND IMPOSING SANCTIONS

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).

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

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.

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.
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.

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



Tuesday September 18, 2007 13:02

certified return receipt requested

Clerk
UNITED STATE DISTRICT COURT
District of New Mexico
Suite 270
333 Lomas Blvd, NW
Albuquerque, New Mexico 87102

Dear Clerk

Enclosed is
MOTION FOR RELIEF FROM ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, STRIKING PLEADINGS, AND IMPOSING SANCTIONS FOR REASONS OF MISREPRESENTATION AND OTHER MISCONDUCT AND VOIDABLE JUDGMENTS for filing.

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

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



http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#gomez




















Docket of 97cv266 as of Wednesday September 5, 2007

The clerk's office docketed both our motions for extension of time and correction
Stricken time motion
Stricken correction motion

Pdf of Armijo's order


http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#armijoorder



























IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

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

vs. No. CIV 97-266 MCA/LFG

NATIONAL SECURITY AGENCY,
Defendant.

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, STRIKING PLEADINGS, AND IMPOSING SANCTIONS

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).

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

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.

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.
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.

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





Morales and Payne met on Saturday August 25, 2007 to open below. We discusssed strategy: We go after judge Conway and Hansen at the Tenth circuit since we have two open case numbers to file void judgment motion and mandatory judicial notice.

Received Friday August 24, 2007









Label/Receipt Number: 7004 2510 0006 5203 4850
Status: Delivered
Your item was delivered at 10:50 AM on August 22, 2007 in ALBUQUERQUE, NM 87102.




UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           
Director, National Security Agency                               
National Security Agency                                               
Defendant                                                                          Federal Rule of Civ. P. 60(b)(1)

MOTION TO CORRECT RESPONSE TO
REPORT AND RECOMMENDATION1 FOR SANCTIONS AND STRIKING OF DOCUMENTS

1 COMES NOW plaintiffs Arthur R Morales and William H Payne to corrrect

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.

to
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.

RELIEF SOUGHT

2 Accept correction.

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
CERTIFICATE OF SERVICE

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


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           
Director, National Security Agency                               
National Security Agency                                               
Defendant                                                                                 Federal Rule of Civ. P. 6(b)                 

MOTION FOR EXTENSION OF TIME

1 COMES NOW plaintiffs Arthur R Morales and William H Payne to request extension of 10 days to respond to any document filed in No. 97-0266 between August 21 and September 4, 2007 for reason we will be on travel and unavailable between August 27 and September 1, 2007.

RELIEF SOUGHT

2 Grant motion to extend time.


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
CERTIFICATE OF SERVICE

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

http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#reportresponse

Thursday August 16, 2007 10:37





Label/Receipt Number: 7006 2760 0005 0090 6712
Status: Delivered
Your item was delivered at 9:36 AM on August 17, 2007 in ALBUQUERQUE, NM 87102.



UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           
Director, National Security Agency                                
National Security Agency                                                
Defendant                                                                Federal Rule of Civ. P. 60(b)(4)         

                                                                                  
RESPONSE TO
REPORT AND RECOMMENDATION1 FOR SANCTIONS AND STRIKING OF DOCUMENTS

1 New Mexico chief magistrate judge Lorenzo Garcia writes

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.

CIV NO 97 0266 SC/DJS is not "[p]retrial matter pending before the court ... " or is it "[p]roposed 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."

Judge M Christina Armijo lacked jurisdiction to invoke 28 U.S.C. § 636(b)(1).

Judge Garcia's writes "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)

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.

Plaintiffs are filing "written objects" to Garcia's report with ten days [plus three for service by mail] not counting weekends. This is August 17, 2007. But plaintiffs are not "appealing" and will not appeal since Armijo's Order of Reference is voidable.

Motion to void MOTION TO VOID ORDER OF REFERENCE FOR LACK OF JURISDICTION and accompanying MANDATORY JUDICIAL NOTICE AND AUTHORITIES TO VOID ORDER OF REFERENCE FOR LACK OF JURISDICTION is before this court. See docket entry numbers 93 and 94.

2 Judge Lorenzo Garcia writes
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].

Judge Armijo wrote

[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).

in ORDER OF REFERENCE issued 21st day of June, 2007.


Judge Armijo failed to ask judge Garcia whether plaintiffs' motion was in any way invalid but rather Armijo focused on attacking plaintiffs not the merits of the motion.

Judge Armijo over-stepped her bounds and thus demonstrated her bias or incompetence.

Armijo instructed Garcia to rule on contentions made in OTHER CASES.

CIV NO 97 0266 SC/DJS should first and foremost be judged on the merits of the motion in this case only.

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. See McLellan v. Automobile Ins. Co. (CA9 Ariz) 80 F.2d 344; State ex rel. Yohe v. District Court, 33 Wyo 281, 238 P. 545.


A court may not render a judgment which transcends the limits of its authority, and a judgment is void if it is beyond the powers granted to the court by the law of its organization, even where the court has jurisdiction over the parties and the subject matter. See Royal Indem. Co. v. Mayor, etc., of Savannah, 209 Ga 383, 73 S.E.2d 205; Spencer v. Franks, 173 Md 73, 195 A 306, 114 ALR 263; Road Material & Equipment Co. v. McGowan, 229 Miss 611, 91 So.2d 554, motion dismd 229 Miss 630, 92 So.2d 245; Howle v. Twin States Express, Inc., 237 NC 667, 75 S.E.2d 732; Fitzsimmons v. Oklahoma City, 192 Okla 248, 135 P.2d 340; Robertson v. Commonwealth, 181 Va 520, 25 S.E.2d 352, 146 ALR 966; Reburg v. Lang, 239 Wis 381, 1 N.W.2d 759. The courts of a state may render only such judgments as they are authorized to do under the laws of the state. Mosely v. Empire Gas & Fuel Co., 313 Mo 225, 281 SW 762, 45 ALR 1223. See People ex rel. Arkansas Valley Sugar Beet & Irrigated Land Co. v. Burke, 72 Colo 486, 212 P. 837, 30 ALR 1085; People v. Wade, 116 Ill 2d 1, 107 Ill Dec 63, 506 N.E.2d 954; Gray v. Clement, 296 Mo 497, 246 SW 940; Ex parte Solberg, 52 ND 518, 203 NW 898; Russell v. Fourth Nat’l Bank (Ohio) 102 Ohio St 248, 131 NE 726; Hough v. Hough (Okla) 772 P.2d 920; Farmers’ Nat’l Bank v. Daggett (Tex Com App) 2 S.W.2d 834; State v. Turner, 98 Wash.2d 731, 658 P.2d 658; Shopper Advertiser, Inc. v. Wisconsin Dep’t of Revenue, 117 Wis 2d 223, 344 N.W.2d 115.


Judge Armijo wrote, "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 ... ." No appendix A was attached.

3 Judge Lorenzo Garcia writes
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.

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

Garcia failed to mention that plaintiffs also filed MANDATORY JUDICIAL NOTICE [Doc. 82]

5 Judge Lorenzo Garcia writes
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.

Judge Garcia's statement, "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." is false. This document was mailed on July 25, 2007, therefore, complies with a proper and timely filing to the court as per Rule 5.

Garcia acknowledges this:
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.

Motion to void judge Armijo's Order of Reference obviated any response to Garcia's Order to Show Cause.

Judge Armijo allows Garcia to issue REPORT AND RECOMMENDATION prior to ruling on plaintiffs' Motion to Void Order of Reference for Lack of Jurisdiction [Doc. 93].

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.

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.As to persons and agencies bound by due process, see 16A Am.Jur.2d, Constitutional Law §§ 742, 821-824.See Hanson v. Denckla, 357 US 235, 2 L.Ed.2d 1283, 78 S.Ct. 1228, reh den 358 US 858, 3 L.Ed.2d 92, 79 S.Ct. 10; Ladner v. Siegel, 298 Pa 487, 148 A 699, 68 ALR 1172.

6 Judge Lorenzo Garcia writes
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 7th 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).

Garcia's statement "Notwithstanding the dozens of lawsuits initiated by these pro se litigants" is a lie. Payne filed two Federal lawsuits: No. 92-1452 ) (Sealed) with judge Conway presiding and 99 cv 270 with judge Lorenzo Garcia presiding for recovery of damages from the false and defaming documents seen at http://www.prosefights.org/nmlegal/supremecourt/cvpa.htm#gallegos.

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.

And, of course, CIV NO 97 0266 SC/DJS.

Five New Mexico 12 person jury trial lawsuits resulted because of judicial misconduct by judges Downes, Garcia, Scott, and Brown which we have not yet received but paid for.

This makes eight, not dozens.


New Mexico state lawsuits are:

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

Since all evidence of guilt of defendants is in writing, we are prepared to go to New Mexico state jury trials with no oral argument required if we do not settle.

Federal criminal complaint affidavits have been filed with Kirtland Air Force Base commander Colonel against 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. See http://www.prosefights.org/nmlegal/dcvoid/dcvoid.htm#feehan. See Appendix A hardcopy without links without links to written evidence of guilt.

Judge Lorenzo Garcia earned an additional criminal complaint for obstruction of justice in this case with evidence of guilt in writing in court record REPORT AND RECOMMENDATION1 FOR SANCTIONS AND STRIKING OF DOCUMENTS. See http://www.prosefights.org/nmlegal/dcvoid/dcvoid.htm#feehan2.

See appendix B hardcopy without links to written evidence of guilt.

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.

9 Judge Lorenzo Garcia writes

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.

Plaintiffs merely want what they paid for: our right to trial by jury guaranteed inviolate by 7th Amendment to US Constitution and 28 USC Rule 38. Our cases are prima facie since all of the evidence of guilt of defendants is in writing.

10 Judge Lorenzo Garcia writes
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).

CIV NO 97 0266 SC/DJS is a jury demand lawsuit which was improperly dismissed by late judge Santiago Campos because right to trial by jury guaranteed inviolate by 7th Amendment to US Constitution and 28 USC Rule 38.

The court or tribunal must have the power of authority to render the particular judgment. A judgment may not be rendered in violation of those constitutional limitations and guaranties.
See as to persons and agencies bound by due process, see 16A Am.Jur.2d, Constitutional Law §§ 742, 821-824. See Hanson v. Denckla, 357 US 235, 2 L.Ed.2d 1283, 78 S.Ct. 1228, reh den 358 US 858, 3 L.Ed.2d 92, 79 S.Ct. 10; Ladner v. Siegel, 298 Pa 487, 148 A 699, 68 ALR 1172.


So Campos' dismissal is voidable.

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 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).

11 Judge Lorenzo Garcia writes
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.

Plaintiffs only file lawsuits when all of the evidence of guilt of defendants is in writing.

"The court" in "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." is judge Lorenzo Garcia who is defendant in CV 2000-10278 and was presiding judge in voidable 99 cv 270.

Garcia flaunts disregard for 28 USC
§ 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. ...

So Garcia should not have been selected by magistrate by judge Armijo and Garcia should have disqualified himself under 28 USC § 455. Therefore Garcia does not have the authority to impose sanctions on plaintiffs.


12 Judge Lorenzo Garcia writes
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.

Eherenhaus analysis is unwarraented since plaintiffs only file lawsuits when all of the evidence of guilt of defendants is in writing.


13 Judge Lorenzo Garcia writes
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.
13 Judge Lorenzo Garcia writes
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.


13 Judge Lorenzo Garcia writes
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.

Garcia states "In this present case, Judge Svet ordered Plaintiffs to pay sanctions of $625.00 ..."

This earned Svet a New Mexico state felony criminal complaint.

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].

Garcia writes, "CIV 97-350 LH/DJS, the court ordered sanctions of $2,260.85 for failing to comply with discovery obligations and court orders. , the court ordered sanctions of $2,260.85 for failing to comply with discovery obligations and court orders."

Judge C Leroy Hansen threatened to dismiss jury trial lawsuit CIV 97-350 LH/DJS if Morales did not pay $2,260.85.

Garcia writes "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." This is judge Garcia who did not disqualify himself as required by 28 USC § 455.

14 Judge Lorenzo Garcia writes
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.
Garcia wrote,"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."

Rebuttal: sentence should read, "In reviewing the eight cases filed by these litigants, it is apparent that literally hundreds of thousands of dollars of attorney fees and costs billed to taxpayers have been squandered on attorneys to shield defendants using crooked judges from settling with Plaintiffs’ prima facie case lawsuits."

Garcia wrote, "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."

Rebuttal: sentence should read, "Unless significant sanctions are imposed defendants, attorneys and judges as message to settle prima facie lawsuits rather than rely on a corrupt court system, abuse of the court system will continue and be the demise of the US way of life."

Garcia wrote, "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." is false.


Rebuttal:
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

were properly docketed and, as a result, are not frivolous.

Issues include a criminal complaint affidavit against former secretary of state Brzezinski which Garcia attempts to strike of docket thus earning him a second criminal complaint affidavit.


Garcia wrote, "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."

Rebuttal: Garcia, in the above sentence, attempts to blatantly ignore Federal Rule of Civ. P. 60(b)(4) and attack plaintiffs when judge Armijo should be ruling on motion. Garcia violated his oath of office in writing.

      
Garcia wrote, "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."

Rebuttal: Plaintiffs have always followed the law to the best of their ability. Above sanctions are unwarranted.

Garcia wrote, "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. "


Rebuttal: Garziere v. First National Bank of Northwest (Ok. App. Ct. 117 June 30, 1998). In the citation is the salient quotation that states that a sanction should ordinarily be limited to "what is sufficient to deter repetition of such conduct or comparable conduct by others in a similarly situated situation."

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 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.


Therefore any sanctions of any pro se litigant of $10,000 each is no president in any court.


15 Judge Lorenzo Garcia writes
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.

Garcia's recommendation to the court that "[P]laintiffs’ pleadings 81, 82, 84, 85, 91, 93 and 94 be stricken ... " must not be accepted because it removes a proper motion before the court which should be ruled on.


And as mentioned to Col. Feehan
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.

RELIEF SOUGHT

16 Strike docket entries 89, 92, 95, and 96 as void.

17 Immediately grant motion in docket entry 81 and proceed to trial or settlement within 90 days or, in the alternative, judge Armijo is removed under Rule 63 for reason of incompetence and bias.


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
CERTIFICATE OF SERVICE

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, and DIR NSA at foialo@nsa.gov.

________________________
Signed

________________________
Date



Thursday August 26, 2007 11:09

certified return receipt requested

Clerk
UNITED STATE DISTRICT COURT
District of New Mexico
Suite 270
333 Lomas Blvd, NW
Albuquerque, New Mexico 87102

Dear Clerk

Enclosed is
RESPONSE TO REPORT AND RECOMMENDATION1 FOR SANCTIONS AND STRIKING OF DOCUMENTS for filing.

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









MOTION TO RECONSIDER OR ALTER JUDGMENT PURSUANT TO RULE 59 (e)

After having reviewed the judgment for sanctions, the undersigned is taking this opportunity to register his objections to the present order. Amongst the reasons for doing such is the reason espoused, in the citation of Garziere v. First National Bank of Northwest (Ok. App. Ct. 117 June 30, 1998). In the citation is the salient quotation that states that a sanction should ordinarily be limited to "what is sufficient to deter repetition of such conduct or comparable conduct by others in a similarly situated situation."

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.

CONCLUSION

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.


http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#garciasanctions





























http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#garciatext

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

WILLIAM H. PAYNE and
ARTHUR R. MORALES,

Plaintiffs, vs.

CIVIL NO. 97-266 MCA/LFG

NATIONAL SECURITY AGENCY,
Defendant.

REPORT AND RECOMMENDATION1
FOR SANCTIONS AND STRIKING OF DOCUMENTS

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].

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.


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)(l), 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.

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

The undersigned Chief Magistrate Judge issued,Order to Show Cause[Doc.92]direeting 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, fiivolous 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 toy offer any rationale why the pleadings should not be stricken or denied, or why they should no. be sanctioned for their abusive litigation practices. Neither Plaintiff sought any extension of time witinn which to comply with me Court's order. The time for responding expired. The disuict'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^,the Court nonetheless reviews the Order to Show Cause on its merits.

Tne 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


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

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.

Notwithstanding the dozens of lawsuits initiated by these pro se litigants, neither Payne nor Morales succeeded in acclaim 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


3Appendix B and Appendix C [Doc. 92] consist of brief summaries of Payne' s and Morales' frivolous litigation history in the state and federal courts of New Mexico.

4See footnote 9, p. 11.

5 See Morales and Pavne v. Baca et al.. CIV 01-634 WFD [Docs. 57,61]; in Pavne 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).

6 Macbeth. Act 3, Scene IV.


3

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 U Qth 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 (he 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

4


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^ro se litigation. Johnsonv. 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 5 justice and judicial efficiency." Braley v. Campbell 832 F.2d 1504.1510(10thCir. 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 non- frivolous 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.
Ehenhaus 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 tile 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 6 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 ms. 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.

7 la 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. Image Software, me. 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 8 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 (1 Oth 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). m 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: 9
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' stem warning and entry of an order enjoining the filing of new civil actions, [Civ. 01-634, Doc. 61], thesepro 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.
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.
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.

8 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.

9 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.

11
>
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 courtorders. 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. 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

12

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
______
Lorenzo F. Garcia
Chief United States Magistrate Judge

13







http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#garciaeratta







DRAFT Wednesday July 25, 2007 13:29

Judge Lorenzo Garcia threats

http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#armijo






----- Original Message -----
From: bill payne
To: jan.mitchell@usdoj.gov ; foialo, foialo
Sent: Wednesday, July 25, 2007 3:55 PM
Subject: MOTION TO VOID ORDER OF REFERENCE FOR LACK OF JURISDICTION




UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           
Director, National Security Agency                                
National Security Agency                                                
Defendant                                                                         

                                                                                           Federal Rule of Civ. P. 60(b)(4)

MOTION TO VOID ORDER OF REFERENCE FOR LACK OF JURISDICTION

I. INTRODUCTION

1 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.

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. ...

9 Chief magistrate judge Lorenzo Garcia issues ORDERTO SHOW CAUSE filed July 6, 2007.

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

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

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.

II. BASIS OF MOTION

11 Judge M Christina Armijo Order of Reference filed 6/21/07 [Docket entry 89] is voidable for reasons of
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.

III. ISSUES

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

IV RELIEF SOUGHT

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

CERTIFICATE OF SERVICE

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, and DIR NSA at foialo@nsa.gov.

________________________
Signed

________________________
Date


DRAFT
Wednesday July 25, 2007 09:42

http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#armijonotice

----- Original Message -----
From: bill payne
To: jan.mitchell@usdoj.gov ; foialo, foialo
Sent: Wednesday, July 25, 2007 3:56 PM
Subject: MANDATORY JUDICIAL NOTICE AND AUTHORITIES TO VOID ORDER OF REFERENCE FOR LACK OF JURISDICTION


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           
Director, National Security Agency                                
National Security Agency                                                
Defendant                                                                         

                                                                                           Federal Rule of Civ. P. 60(b)(4)
MANDATORY JUDICIAL NOTICE AND AUTHORITIES TO VOID ORDER OF REFERENCE FOR LACK OF JURISDICTION

1 COMES NOW, plaintiffs Morales and Payne to place this court on judicial notice of authorities of motion to vacate judgments.

2 To be valid and enforceable, a judgment must be supported by three elements:

(1) the court must have jurisdiction of the parties;
(2) the court must have jurisdiction of the subject matter; and
(3) the court or tribunal must have the power of authority to render the particular judgment.

If the requirements for validity are not met, a judgment may be subject to avoidance. 1

3 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

4 Such a judgment is void from its inception, incapable of confirmation or ratification, and can never have any legal effect. 3

5 A void judgment must be dismissed, regardless of timeliness if jurisdiction is deficient. 5

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

7 The passage of time, however great, does not affect the validity of a judgment 6 and cannot render a void judgment valid. 7

8 The limitations inherent in the requirements of due process of law extend to judicial, as well as political, branches of the government, 8 so that a judgment may not be rendered in violation of those constitutional limitations and guaranties. 9

9 A court may not render a judgment which transcends the limits of its authority, 10 and a judgment is void if it is beyond the powers granted to the court by the law of its organization, even where the court has jurisdiction over the parties and the subject matter. 11

10 A void judgment may be cured Mandamus. 12

11 Res judicata does not apply to a void judgment motion. 13

12 An opportunity for a hearing before a competent and impartial tribunal on proper notice 14 is one of the essential elements of due process of law. 15

13 A judgment is irregular where its rendition is contrary to the course and practice of the courts; 16 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.17

14 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.18

15 A judgment is void when the court lacks jurisdiction of the parties or of the subject matter, 19 lacks the inherent power to make or enter the particular order involved, 20 or acts in a manner inconsistent with due process of law.21

16 The judgment of a court without hearing or giving a party an opportunity to be heard is not a judicial determination of its rights, 22 and is not entitled to respect in any other tribunal. 23

1 See Peduto v. North Wildwood (DC NJ) 696 F Supp 1004, affd (CA3 NJ) 878 F.2d 725; In re Doe (NM App) 99 NM 517, 660 P.2d 607; Tice v. Nationwide Life Ins. Co., 284 Pa Super 220, 425 A.2d 782.

2 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).

3 See Stidham v. Whelchel, 698 NE2d 1152 (Ind.1998); Thompson v. Thompson, 238 SW2d 218 (Tex.Civ.App. 1951); Lucas v. Estate of Stavos, 609 NE2d 1114, rehng.den., trans.den, (Ind.App.Dist.1 1993); Loyd v. Director, Dept. of Public Safety, 480 So2d 577 (Ala.Civ.App.1985); In re Marriage of Parks, 630 NE2d 509 (Ill.App.Dist.4 1991); Lubben v. Selective Service System Local Bd. No.27, 453 F.2d 645, 14 A.L.R.Fed. 298 (CA1 1972); Hobbs v. U.S. Office of Personnel Mgmt., 485 F.Supp. 456 (M.D.Fla.1980); Holstein v. City of Chicago, 803 F.Supp. 205, recon.den., 149 F.R.D. 147, aff’d, 29 F.3d 1145 (N.D.Ill.1992); City of Los Angeles v. Morgan, 234 P2d 319 (Cal.App.Dist.2 1951).

4 Orner v. Shalala, 30 F.3d 1307 (Colo.1994).

5 See Asher v. Van Brunt, 158 F.R.D. 278 (S.D.N.Y.1994).

6 See State ex rel. Smith v. Sixth Judicial Dist. Court, 63 Nev 249, 167 P.2d 648 (ovrld in part on other grounds by Poirier v. Board of Dental Examiners, 81 Nev 384, 404 P.2d 1); Monroe v. Niven, 221 NC 362, 20 S.E.2d 311.

7 See State ex rel. Smith v. Sixth Judicial Dist. Court, 63 Nev 249, 167 P.2d 648 (ovrld in part on other grounds by Poirier v. Board of Dental Examiners, 81 Nev 384, 404 P.2d 1); Columbus County v. Thompson, 249 NC 607, 107 S.E.2d 302.

8 As to persons and agencies bound by due process, see 16A Am.Jur.2d, Constitutional Law §§ 742, 821-824.

9 See Hanson v. Denckla, 357 US 235, 2 L.Ed.2d 1283, 78 S.Ct. 1228, reh den 358 US 858, 3 L.Ed.2d 92, 79 S.Ct. 10; Ladner v. Siegel, 298 Pa 487, 148 A 699, 68 ALR 1172.

10 See Royal Indem. Co. v. Mayor, etc., of Savannah, 209 Ga 383, 73 S.E.2d 205; Spencer v. Franks, 173 Md 73, 195 A 306, 114 ALR 263; Road Material & Equipment Co. v. McGowan, 229 Miss 611, 91 So.2d 554, motion dismd 229 Miss 630, 92 So.2d 245; Howle v. Twin States Express, Inc., 237 NC 667, 75 S.E.2d 732; Fitzsimmons v. Oklahoma City, 192 Okla 248, 135 P.2d 340; Robertson v. Commonwealth, 181 Va 520, 25 S.E.2d 352, 146 ALR 966; Reburg v. Lang, 239 Wis 381, 1 N.W.2d 759. The courts of a state may render only such judgments as they are authorized to do under the laws of the state. Mosely v. Empire Gas & Fuel Co., 313 Mo 225, 281 SW 762, 45 ALR 1223.

11 See People ex rel. Arkansas Valley Sugar Beet & Irrigated Land Co. v. Burke, 72 Colo 486, 212 P. 837, 30 ALR 1085; People v. Wade, 116 Ill 2d 1, 107 Ill Dec 63, 506 N.E.2d 954; Gray v. Clement, 296 Mo 497, 246 SW 940; Ex parte Solberg, 52 ND 518, 203 NW 898; Russell v. Fourth Nat’l Bank (Ohio) 102 Ohio St 248, 131 NE 726; Hough v. Hough (Okla) 772 P.2d 920; Farmers’ Nat’l Bank v. Daggett (Tex Com App) 2 S.W.2d 834; State v. Turner, 98 Wash.2d 731, 658 P.2d 658; Shopper Advertiser, Inc. v. Wisconsin Dep’t of Revenue, 117 Wis 2d 223, 344 N.W.2d 115.

12 See Sanchez v. Hester, 911 SW2d 173 (Tex.App.1995).

13 See Allcock v. Allcock, 437 NE2d 392 (Ill.App.Dist.3 1982).

14 See 46 Am.Jur.2d Judgments § 17.

15 As to the opportunity to be heard as a requisite of due process, see 16A Am.Jur.2d, Constitutional Law §§ 839 et seq.

16 See Pruitt v. Taylor, 247 NC 380, 100 S.E.2d 841.

17 See Sache v. Gillette, 101 Minn 169, 112 NW 386.

18 See McLellan v. Automobile Ins. Co. (CA9 Ariz) 80 F.2d 344; State ex rel. Yohe v. District Court, 33 Wyo 281, 238 P. 545.

19 See 46 Am.Jur.2d Judgments §§ 26, 27.

20 See 46 Am.Jur.2d Judgments § 25.

21 See 46 Am.Jur.2d Judgments §§ 17, 18.

22 See State ex rel. Anderson-Madison County Hospital Development Corp. v. Superior Court of Madison County, 245 Ind 371, 199 N.E.2d 88; Morley v. Morley, 131 Wash 540, 230 P. 645; Trough v. Trough, 59 W Va 464, 53 SE 630.

23 See State ex rel. Anderson-Madison County Hospital Development Corp. v. Superior Court of Madison County, 245 Ind 371, 199 N.E.2d 88; Moore v. Smith, 177 Va 621, 15 S.E.2d 48; Morley v. Morley, 131 Wash 540, 230 P. 645; Trough v. Trough, 59 W Va 464, 53 SE 630.

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
CERTIFICATE OF SERVICE

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, and DIR NSA at foialo@nsa.gov.

________________________
Signed

________________________
Date

 

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

Wednesday July 25, 2007 14:03

Clerk
UNITED STATE DISTRICT COURT
District of New Mexico
Suite 270
333 Lomas Blvd, NW
Albuquerque, New Mexico 87102

certified return receipt requested

Dear Clerk

Enclose is MOTION TO VOID ORDER OF REFERENCE FOR LACK OF JURISDICTION and MANDATORY JUDICIAL NOTICE AND AUTHORITIES TO VOID ORDER OF REFERENCE FOR LACK OF JURISDICTION for filing.

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



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 7th 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. ...

These judges overstepped their judicial authority in a number of cases, as a result, we are filed on Tuesday July 24, 2007 08:06:17AM to void judgments at the UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.

Our two filings are posted on Internet at

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

Judges Parker, Downes, Benson, Conway, Garcia, Scott, Brown and Vazquez appear to think that they can get away denying rights of citizens. They do this by attempting to cover up for each other. Specifically, they will not hold one-another accountable for not doing their job as required by their oath of office.

Framers of the US legal system took into account the possibility of crimes might go unprosecuted because of judges not doing their jobs.

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


DRAFT Wednesday July 25, 2007 13:15

Judge Lorenzo Garcia threats

http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#armijo

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           
Director, National Security Agency                                
National Security Agency                                                
Defendant                                                                         

                                                                                           Federal Rule of Civ. P. 60(b)(4)

MOTION TO VOID ORDER OF REFERENCE FOR LACK OF JURISDICTION

I. INTRODUCTION

1 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.

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. ...

9 Chief magistrate judge Lorenzo Garcia issues ORDERTO SHOW CAUSE filed July 6, 2007.

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

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

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.

II. BASIS OF MOTION

11 Judge M Christina Armijo Order of Reference filed 6/21/07 [Docket entry 89] is voidable for reasons of
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.

III. ISSUES

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

IV RELIEF SOUGHT

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

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION was mailed to LTG Keith B. Alexander, Director, National Security Agency, 9800 Savage Road, Fort George G. Meade, MD 20755-6000, emailed Jan Elizabeth Mitchell, Assistant US Attorney, 201 3rd ST NW, ABQ, NM 87102 at jan.mitchell@usdoj.gov, and foialo@nsa.gov by email this Friday June 15, 2007.


DRAFT
Wednesday July 25, 2007 09:42

http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#armijonotice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           
Director, National Security Agency                                
National Security Agency                                                
Defendant                                                                         

                                                                                           Federal Rule of Civ. P. 60(b)(4)
MANDATORY JUDICIAL NOTICE AND AUTHORITIES TO VOID ORDER OF REFERENCE FOR LACK OF JURISDICTION

1 COMES NOW, plaintiffs Morales and Payne to place this court on judicial notice of authorities of motion to vacate judgments.

2 To be valid and enforceable, a judgment must be supported by three elements:

(1) the court must have jurisdiction of the parties;
(2) the court must have jurisdiction of the subject matter; and
(3) the court or tribunal must have the power of authority to render the particular judgment.

If the requirements for validity are not met, a judgment may be subject to avoidance. 1

3 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

4 Such a judgment is void from its inception, incapable of confirmation or ratification, and can never have any legal effect. 3

5 A void judgment must be dismissed, regardless of timeliness if jurisdiction is deficient. 5

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

7 The passage of time, however great, does not affect the validity of a judgment 6 and cannot render a void judgment valid. 7

8 The limitations inherent in the requirements of due process of law extend to judicial, as well as political, branches of the government, 8 so that a judgment may not be rendered in violation of those constitutional limitations and guaranties. 9

9 A court may not render a judgment which transcends the limits of its authority, 10 and a judgment is void if it is beyond the powers granted to the court by the law of its organization, even where the court has jurisdiction over the parties and the subject matter. 11

10 A void judgment may be cured Mandamus. 12

11 Res judicata does not apply to a void judgment motion. 13

12 An opportunity for a hearing before a competent and impartial tribunal on proper notice 14 is one of the essential elements of due process of law. 15

13 A judgment is irregular where its rendition is contrary to the course and practice of the courts; 16 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.17

14 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.18

15 A judgment is void when the court lacks jurisdiction of the parties or of the subject matter, 19 lacks the inherent power to make or enter the particular order involved, 20 or acts in a manner inconsistent with due process of law.21

16 The judgment of a court without hearing or giving a party an opportunity to be heard is not a judicial determination of its rights, 22 and is not entitled to respect in any other tribunal. 23

1 See Peduto v. North Wildwood (DC NJ) 696 F Supp 1004, affd (CA3 NJ) 878 F.2d 725; In re Doe (NM App) 99 NM 517, 660 P.2d 607; Tice v. Nationwide Life Ins. Co., 284 Pa Super 220, 425 A.2d 782.

2 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).

3 See Stidham v. Whelchel, 698 NE2d 1152 (Ind.1998); Thompson v. Thompson, 238 SW2d 218 (Tex.Civ.App. 1951); Lucas v. Estate of Stavos, 609 NE2d 1114, rehng.den., trans.den, (Ind.App.Dist.1 1993); Loyd v. Director, Dept. of Public Safety, 480 So2d 577 (Ala.Civ.App.1985); In re Marriage of Parks, 630 NE2d 509 (Ill.App.Dist.4 1991); Lubben v. Selective Service System Local Bd. No.27, 453 F.2d 645, 14 A.L.R.Fed. 298 (CA1 1972); Hobbs v. U.S. Office of Personnel Mgmt., 485 F.Supp. 456 (M.D.Fla.1980); Holstein v. City of Chicago, 803 F.Supp. 205, recon.den., 149 F.R.D. 147, aff’d, 29 F.3d 1145 (N.D.Ill.1992); City of Los Angeles v. Morgan, 234 P2d 319 (Cal.App.Dist.2 1951).

4 Orner v. Shalala, 30 F.3d 1307 (Colo.1994).

5 See Asher v. Van Brunt, 158 F.R.D. 278 (S.D.N.Y.1994).

6 See State ex rel. Smith v. Sixth Judicial Dist. Court, 63 Nev 249, 167 P.2d 648 (ovrld in part on other grounds by Poirier v. Board of Dental Examiners, 81 Nev 384, 404 P.2d 1); Monroe v. Niven, 221 NC 362, 20 S.E.2d 311.

7 See State ex rel. Smith v. Sixth Judicial Dist. Court, 63 Nev 249, 167 P.2d 648 (ovrld in part on other grounds by Poirier v. Board of Dental Examiners, 81 Nev 384, 404 P.2d 1); Columbus County v. Thompson, 249 NC 607, 107 S.E.2d 302.

8 As to persons and agencies bound by due process, see 16A Am.Jur.2d, Constitutional Law §§ 742, 821-824.

9 See Hanson v. Denckla, 357 US 235, 2 L.Ed.2d 1283, 78 S.Ct. 1228, reh den 358 US 858, 3 L.Ed.2d 92, 79 S.Ct. 10; Ladner v. Siegel, 298 Pa 487, 148 A 699, 68 ALR 1172.

10 See Royal Indem. Co. v. Mayor, etc., of Savannah, 209 Ga 383, 73 S.E.2d 205; Spencer v. Franks, 173 Md 73, 195 A 306, 114 ALR 263; Road Material & Equipment Co. v. McGowan, 229 Miss 611, 91 So.2d 554, motion dismd 229 Miss 630, 92 So.2d 245; Howle v. Twin States Express, Inc., 237 NC 667, 75 S.E.2d 732; Fitzsimmons v. Oklahoma City, 192 Okla 248, 135 P.2d 340; Robertson v. Commonwealth, 181 Va 520, 25 S.E.2d 352, 146 ALR 966; Reburg v. Lang, 239 Wis 381, 1 N.W.2d 759. The courts of a state may render only such judgments as they are authorized to do under the laws of the state. Mosely v. Empire Gas & Fuel Co., 313 Mo 225, 281 SW 762, 45 ALR 1223.

11 See People ex rel. Arkansas Valley Sugar Beet & Irrigated Land Co. v. Burke, 72 Colo 486, 212 P. 837, 30 ALR 1085; People v. Wade, 116 Ill 2d 1, 107 Ill Dec 63, 506 N.E.2d 954; Gray v. Clement, 296 Mo 497, 246 SW 940; Ex parte Solberg, 52 ND 518, 203 NW 898; Russell v. Fourth Nat’l Bank (Ohio) 102 Ohio St 248, 131 NE 726; Hough v. Hough (Okla) 772 P.2d 920; Farmers’ Nat’l Bank v. Daggett (Tex Com App) 2 S.W.2d 834; State v. Turner, 98 Wash.2d 731, 658 P.2d 658; Shopper Advertiser, Inc. v. Wisconsin Dep’t of Revenue, 117 Wis 2d 223, 344 N.W.2d 115.

12 See Sanchez v. Hester, 911 SW2d 173 (Tex.App.1995).

13 See Allcock v. Allcock, 437 NE2d 392 (Ill.App.Dist.3 1982).

14 See 46 Am.Jur.2d Judgments § 17.

15 As to the opportunity to be heard as a requisite of due process, see 16A Am.Jur.2d, Constitutional Law §§ 839 et seq.

16 See Pruitt v. Taylor, 247 NC 380, 100 S.E.2d 841.

17 See Sache v. Gillette, 101 Minn 169, 112 NW 386.

18 See McLellan v. Automobile Ins. Co. (CA9 Ariz) 80 F.2d 344; State ex rel. Yohe v. District Court, 33 Wyo 281, 238 P. 545.

19 See 46 Am.Jur.2d Judgments §§ 26, 27.

20 See 46 Am.Jur.2d Judgments § 25.

21 See 46 Am.Jur.2d Judgments §§ 17, 18.

22 See State ex rel. Anderson-Madison County Hospital Development Corp. v. Superior Court of Madison County, 245 Ind 371, 199 N.E.2d 88; Morley v. Morley, 131 Wash 540, 230 P. 645; Trough v. Trough, 59 W Va 464, 53 SE 630.

23 See State ex rel. Anderson-Madison County Hospital Development Corp. v. Superior Court of Madison County, 245 Ind 371, 199 N.E.2d 88; Moore v. Smith, 177 Va 621, 15 S.E.2d 48; Morley v. Morley, 131 Wash 540, 230 P. 645; Trough v. Trough, 59 W Va 464, 53 SE 630.

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
CERTIFICATE OF SERVICE

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, and foialo@nsa.gov.

________________________
Signed

________________________
Date

 

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

 Pdf file location http://www.prosefights.org/nmlegal/nsalawsuit/pacerdocketsjuly182007/89.pdf

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

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


http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#garciathreats

Docket as of July 18, 2007
[C]ontempt sanctions may include censure, imposition of monetary fines and incarceration....

Contents of envelope in pdf docket entry 92.

Pdf file location http://www.prosefights.org/nmlegal/nsalawsuit/pacerdocketsjuly182007/92.pdf

Received July 10, 2007.



Docket entry 86 in pdf.
Pdf file location http://www.prosefights.org/nmlegal/nsalawsuit/pacerdocketsjuly182007/86.pdf


Docket entry 87 in pdf.
Pdf file location http://www.prosefights.org/nmlegal/nsalawsuit/pacerdocketsjuly182007/87.pdf

Docket entry 88 not posted by PACER.


Payne received in the mail



but with no copy of Minute Order.

Docket entry 89 in pdf.
Pdf file location http://www.prosefights.org/nmlegal/nsalawsuit/pacerdocketsjuly182007/89.pdf


Docket entry 90 in pdf.
Pdf file location http://www.prosefights.org/nmlegal/nsalawsuit/pacerdocketsjuly182007/90.pdf


Docket entry 91 in pdf.
Pdf file location http://www.prosefights.org/nmlegal/nsalawsuit/pacerdocketsjuly182007/91.pdf



Judges Garcia and Downes may have some lawsuit problems.

Lorenzo Garcia is defendant in New Mexico 12 person jury trial lawsuit CV 2000-10278 for defamation [libel] and harassment which was fraudulently removed to federal court and assigned to William F Downes.

And, of course, 19 New Mexico 12 person jury trial lawsuit CV 2000-10278 is removed to federal court without required verification by assistant US attorney Phyllis A Dow on 11/27/2000.

Defamation [libel] and harassment are not federal questions and no required verified petition was ever filed that defamation [libel] and harassment are federal questions.

The court must have jurisdiction of the subject matter. The court does not have jurisdiction of the subject matter.

20 New Mexico CV 2000-10278 is given federal case number 00cv01677. It is assigned to judge William F Downes by New Mexico chief judge James A Parker on 03/27/2001.

21 Petitioner Payne filed DEMAND for jury trial on 12/21/2000.

22 Downes dismisses 00cv01677 on 05/30/2003 thus denying petitioner Payne right of jury trial guaranteed inviolate by 7th Amendment to US Constitution and 28 USC Rule 38.

23 On 11/18/2004 issues ORDER by District Judge William F. Downes striking pltf's affidavit [121-1] and directing the Clerk of Court to refuse acceptance of any further pleadings w/out leave of the Chief Judge ....

A judgment may not be rendered in violation of constitutional limitations and guaranties.

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."

 


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our ongoing efforts to advance peace and health worldwide.

Sincerely,

Web Site Administrator


Label/Receipt Number: 7007 0220 0002 8762 9158
Status: Delivered

Your item was delivered at 10:51 AM on July 9, 2007 in ATLANTA, GA 30306.






 ----- Original Message -----
From: bill payne
To: carterweb@emory.edu
Cc: bill payne ; art morales ; ISCAP ; bill.leonard@nara.gov ; the.secretary@hq.doe.gov ; Sensenbrenner
Sent: Monday, July 02, 2007 6:54 AM Subject: [y]our administration's decision by apparently Zibigniew Brzezinski to incite Saddam Hussein to attack Iran in 1980 ry to resolve peacefully ...


URGENT


Sunday July 1, 2007 10:58

http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#carter

carterweb@emory.edu and certified return receipt requested mail


Jimmy Carter
The Carter Center
One Copenhill
453 Freedom Parkway
Atlanta, GA 30307
(404) 420-5100 or (800) 550-3560
carterweb@emory.edu

Dear President Carter:

An unfortunate situation resulting from your administration's decision by apparently Zibigniew Brzezinski to incite Saddam Hussein to attack Iran in 1980 requires your immediate help to try to resolve peacefully.

Persian Mr Zoubin emailed
Sunday, January 07, 2001 5:52 PM

Dear Friend, we saw some of these documents http://www.geocities.com/CapitolHill/Congress/8327/buehlerpayne.html but we would like your commentary about what happened and all circumstances so we can post it on our website but as well as a report to the mailing lists.

With thanks

On behalf of SMCCDI A. Zoubin ( Information Committee) http://www.iran-daneshjoo.org/

The Information Committee was advised that "we would like your commentary about what happened and all circumstances so we can post it on our website but as well as a report to the mailing lists" may be a bad idea for the reason the information might reach the wrong or right, depending on your point of view, people.

In the alternative, we suggested gaining as much information as possible about what happened, then taking legal action to settle these unfortunate matters peacefully.


While Mr Zoubin did not respond to our suggestion, nothing unfortunate has happened yet.


To show our Persian friends that we are, in fact, sincere in our suggestion to settle matters legally, we filed a formal criminal complaint affidavit against Brzezinki for inciting Saddman Hussein in our reply to assistant US attorney Mitchell's response to void judgment.

See




This appears to be a violation of 18 USC § 1091(c).

Note that our reply formally docked with federal court .



and thus criminal is formally before the court.

Our primary objective is to void judgments by judge John Edward Conway andC Leroy Hansen who denied us right of jury trial is guaranteed inviolate by 7th Amendment to US Constitution and 28 USC Rule 38.

But since our visibility NSA FOIA lawsuit was also a DEMANDed trial by jury denied by late judge Santiago Campos, we decided to motion to void judgment in that lawsuit too. And, of course, bring before a US court possible a legal remedy we wrote the Persians we would attempt.

Our June 12, 2007 docketed reply appears to have caused New Mexicio chief judge Martha Vazquez to threaten on June 14, 2007.

The Chief Magistrate Judge [Lorenzo 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 censure, striking pleadings, imposition of fines and/or incarceration of the Plaintiffs.

This threat was read of the PACER docket on the evening of Thursda June 14,2007 while plaintiff Payne was on vacation in Bozeman, MT.

Payne and Morales notice on unavilablity on June 6, 2007. Nonetheless, court sent

Sensing urgency to avoid retaliation for reply, Morales and Payne respond to Vazquez' threat and file reponse motion to Vazquez accusations from Bozeman on June 15, 2007.

New Mexico judge John Edwards Conway denies mandatory, not discretionary, void judgment motion and orders clerk not to accept additonal pleadings in case. Conway's order, of course, is a void judgment for many reasons and must be vacated in an appropriate court.

The behavior of federal judges Parker and Vazquez point to a possible more serious problem in this matter. Some in the courts are ignoring the law while we are trying for legal settlement of this unfortunate matter.

We have not opened the letters you see above since we recently returned from vacation.

Should the contents of any of the letters indicate that the courts and not following the law to resolved these serious matters then consequences could be unfortunate.

Since you presidental administration was responsible for much of this unfortunate situtation, we ask that you read, modify if necessary, and sign the included BRIEF OF JIMMY CARTER AS AMICI CURIAE IN SUPPORT FORMOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION in the hope that you can get these matters lawfully and peacefully settled.

Sincerely,

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111
505-292-7037
bpayne37@comcast.net


Arthur R. Morales
465 Washington St SE
Albuquerque, NM 87108
505-323-7277
amorales58@comcast.net


DRAFT
Sunday July 1, 2007 16:52


http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#carterbrief
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           
Director, National Security Agency                                
National Security Agency                                                
Defendant                                                                         

                                                                                           Federal Rule of Civ. P. 60(b)(4)

BRIEF OF JIMMY CARTER AS AMICI CURIAE IN SUPPORT
FOR
MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION

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: ____________________

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION was mailed to LTG Keith B. Alexander, Director, National Security Agency, 9800 Savage Road, Fort George G. Meade, MD 20755-6000, emailed Jan Elizabeth Mitchell, Assistant US Attorney, 201 3rd ST NW, ABQ, NM 87102 at jan.mitchell@usdoj.gov, foialo@nsa.gov by email and judge Chrisina Armijo at mcaproposedtext@nmcourt.fed.us this __________ July __, 2007.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           
Director, National Security Agency                                
National Security Agency                                                
Defendant                                                                         

                                                                                           Federal Rule of Civ. P. 60(b)(4)

BRIEF OF JIMMY CARTER AS AMICI CURIAE IN SUPPORT
FOR
MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION

1 I have read

A

Respectfully submitted,

_________________________
Jimmy Carter
The Carter Center
carterweb@emory.edu

Date: ____________________

Pro se litigants

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION was mailed to LTG Keith B. Alexander, Director, National Security Agency, 9800 Savage Road, Fort George G. Meade, MD 20755-6000, emailed Jan Elizabeth Mitchell, Assistant US Attorney, 201 3rd ST NW, ABQ, NM 87102 at jan.mitchell@usdoj.gov, and foialo@nsa.gov by email this Tuesday July 3, 2007.


Three received Tuesday June 26, 2007

Our criminal complaint affidavit against Brzezinski and subsequent docketing in New Mexico  CIV NO 97 0266 SC/DJS is gain more significance as redundant postings appear.

Zbigniew Brzezinski and the failed Nojeh coup.

Former Bush Official Accuses White House of "Trying To Push" a First Strike from Iran

1980 - Failed Nojeh Coup(7)

Zbigniew Brzezinski, the National Security Adviser under the Carter Administration from 1977 to 1981, meets with King Hussein, the ruler of Jordan, in July to discuss plans for a coup d'etat to topple the Ayatollah Khomeini in Iran.

Saddam Hussein in Iraq is chosen to lead the coup, largely due to the fact that he views Islamic Fundamentalists as a threat to his regime, and, with the backing of the US, CIA and its Western Allies, Saddam leads the failed Nojeh coup d'etat to remove Khomeini on July 9.

After failing to overthrow Khomeini, Saddam invades Iran under the disputed pretext that Iran tried to assassinate his Foreign Minister, Tariq Aziz, on September 22.

The wikipedia quote

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.

has also been reposted at Dacha Dude Weblog > Guilty Knowledge.

Dacha other informtion probably should have some redundancy

The Iranian Shah meeting with Alfred Atherton, William Sullivan, Cyrus Vance, President Carter, and Zbigniew Brzezinski, 1977 Facing a revolution, the Shah of Iran sought help from the United States. Iran occupied a strategic place in U.S. foreign policy toward the Middle East, acting as an island of stability, and a buffer against Soviet penetration into the region. He was pro-American, but domestically oppressive. The U.S. ambassador to Iran, William H. Sullivan, recalls that the U.S. national security adviser Zbigniew Brzezinski "repeatedly assured Pahlavi that the U.S. backed him fully," however these reassurances would not amount to substantive action on the part of the United States. On November 4th, 1978, Brzezinski called the Shah to tell him that the United States would "back him to the hilt." At the same time, certain high-level officials in the State Department decided that the Shah had to go, regardless of who replaced him. Brzezinski, and Energy Secretary James Schlesinger (former Secretary of Defense under Ford), continued to advocate that the U.S. support the Shah militarily. Even in the final days of the revolution, when the Shah was considered doomed no matter what the outcome of the revolution came to be, Brzezinski still advocated a U.S. invasion to stabilize Iran. President Carter could not decide how to appropriately use force, opposed a U.S. coup, ordered the Constellation aircraft carrier to the Indian Ocean, but soon countermanded his order. A deal was worked out with the Iranian generals to shift support to a moderate government, but this plan fell apart when Khomeini and his followers swept the country, taking power 12 February 1979.

"In November 1978, President Carter named the Bilderberg group's George Ball, another member of the Trilateral Commission, to head a special White House Iran task force under the National Security Council's Brzezinski. Ball recommended that Washington drop support for the Shah of Iran and support the fundamentalistic Islamic opposition of Ayatollah Khomeini. Robert Bowie from the CIA was one of the lead 'case officers' in the new CIA-led coup against the man their covert actions had placed into power 25 years earlier.

Their scheme was based on a detailed study of the phenomenon of Islamic fundamentalism, as presented by British Islamic expert, Dr. Bernard Lewis, then on assignment at Princeton University in the United States. Lewis's scheme, which was unveiled at the May 1979 Bilderberg meeting in Austria, endorsed the radical Muslim Brotherhood movement behind Khomeini, in order to promote balkanization of the entire Muslim Near East along tribal and religious lines. Lewis argued that the West should encourage autonomous groups such as the Kurds, Armenians, Lebanese Maronites, Ethiopian Copts, Azerbaijani Turks, and so forth. The chaos would spread in what he termed an 'Arc of Crisis,' which would spill over into Muslim regions of the Soviet Union.

The coup against the Shah, like that against Mossadegh in 1953, was run by British and American intelligence, with the bombastic American, Brzezinski, taking public 'credit' for getting rid of the 'corrupt' Shah, while the British characteristically remained safely in the background.

During 1978, negotiations were under way between the Shah's government and British Petroleum for renewal of the 25-year old extraction agreement. By October 1978, the talks had collapsed over a British 'offer' which demanded exclusive rights to Iran's future oil output, while refusing to guarantee purchase of the oil. With their dependence on British-controlled export apparently at an end, Iran appeared on the verge of independence in its oil sales policy for the first time since 1953, with eager prospective buyers in Germany, France, Japan and elsewhere. In its lead editorial that September, Iran's Kayhan International stated:

In retrospect, the 25-year partnership with the [British Petroleum] consortium and the 50-year relationship with British Petroleum which preceded it, have not been satisfactory ones for Iran . Looking to the future, NIOC [National Iranian Oil Company] should plan to handle all operations by itself.

London was blackmailing and putting enormous economic pressure on the Shah's regime by refusing to buy Iranian oil production, taking only 3 million or so barrels daily of an agreed minimum of 5 million barrels per day. This imposed dramatic revenue pressures on Iran, which provided the context in which religious discontent against the Shah could be fanned by trained agitators deployed by British and U.S. intelligence. In addition, strikes among oil workers at this critical juncture crippled Iranian oil production.

As Iran's domestic economic troubles grew, American 'security' advisers to the Shah's Savak secret police implemented a policy of ever more brutal repression, in a manner calculated to maximize popular antipathy to the Shah. At the same time, the Carter administration cynically began protesting abuses of 'human rights' under the Shah.

British Petroleum reportedly began to organize capital flight out of Iran, through its strong influence in Iran's financial and banking community. The British Broadcasting Corporation's Persian-language broadcasts, with dozens of Persian-speaking BBC 'correspondents' sent into even the smallest village, drummed up hysteria against the Shah. The BBC gave Ayatollah Khomeini a full propaganda platform inside Iran during this time. The British government-owned broadcasting organization refused to give the Shah's government an equal chance to reply. Repeated personal appeals from the Shah to the BBC yielded no result. Anglo-American intelligence was committed to toppling the Shah. The Shah fled in January, and by February 1979, Khomeini had been flown into Tehran to proclaim the establishment of his repressive theocratic state to replace the Shah's government.

Reflecting on his downfall months later, shortly before his death, the Shah noted from exile,

I did not know it then - perhaps I did not want to know - but it is clear to me now that the Americans wanted me out. Clearly this is what the human rights advocates in the State Department wanted. What was I to make of the Administration's sudden decision to call former Under Secretary of State George Ball to the White House as an adviser on Iran? . Ball was among those Americans who wanted to abandon me and ultimately my country.[1][1]

With the fall of the Shah and the coming to power of the fanatical Khomeini adherents in Iran, chaos was unleashed. By May 1979, the new Khomeini regime had singled out the country's nuclear power development plans and announced cancellation of the entire program for French and German nuclear reactor construction.

Iran's oil exports to the world were suddenly cut off, some 3 million barrels per day. Curiously, Saudi Arabian production in the critical days of January 1979 was also cut by some 2 million barrels per day. To add to the pressures on world oil supply, British Petroleum declared force majeure and cancelled major contracts for oil supply. Prices on the Rotterdam spot market, heavily influenced by BP and Royal Cutch Shell as the largest oil traders, soared in early 1979 as a result. The second oil shock of the 1970s was fully under way.

Indications are that the actual planners of the Iranian Khomeini coup in London and within the senior ranks of the U.S. liberal establishment decided to keep President Carter largely ignorant of the policy and its ultimate objectives. The ensuing energy crisis in the United States was a major factor in bringing about Carter's defeat a year later.

There was never a real shortage in the world supply of petroleum. Existing Saudi and Kuwaiti production capacities could at any time have met the 5-6 million barrels per day temporary shortfall, as a U.S. congressional investigation by the General Accounting Office months later confirmed.

Unusually low reserve stocks of oil held by the Seven Sisters oil multinationals contributed to creating a devastating world oil price shock, with prices for crude oil soaring from a level of some $14 per barrel in 1978 towards the astronomical heights of $40 per barrel for some grades of crude on the spot market. Long gasoline lines across America contributed to a general sense of panic, and Carter energy secretary and former CIA director, James R. Schlesinger, did not help calm matters when he told Congress and the media in February 1979 that the Iranian oil shortfall was 'prospectively more serious' than the 1973 Arab oil embargo.[2][2]

The Carter administration's Trilateral Commission foreign policy further ensured that any European effort from Germany and France to develop more cooperative trade, economic and diplomatic relations with their Soviet neighbor, under the umbrella of détente and various Soviet-west European energy agreements, was also thrown into disarray.

Carter's security adviser, Zbigniew Brzezinski, and secretary of state, Cyrus Vance, implemented their 'Arc of Crisis' policy, spreading the instability of the Iranian revolution throughout the perimeter around the Soviet Union. Throughout the Islamic perimeter from Pakistan to Iran, U.S. initiatives created instability or worse."

-- William Engdahl, A Century of War : Anglo-American Oil Politics and the New World Order, © 1992, 2004. Pluto Press Ltd. Pages 171-174.

Our legal project has brought us to Tehran [and the Evin Prison] and now the Nojeh airbase in Hamedan.

Tribunal of General Ayat Mohagheghi

IIAF Personnel killed by Islamic Regime between 1979 - Present

1st Fighter Base, Mehrabad, Tehran. Generating fighter and escort missions inside the border along western and south-western Iraq. It also operated as the main hub for tanker operations and aerial reconnaissance missions into Iraq and over battle fronts. 3rd Fighter Base, Hamedan (Shahrokhi, later Nojeh). Home to 31st and 32nd Fighter Wings. This base was in charge of aerial support of the western front Flying time from this base to Baghdad was 30 minutes. Due to its high sortie generation rate, Nojeh came under constant enemy bombing.


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.










Morales and Payne opened this, along with about a total of 12 envelopes, on Tuesday July 3, 2007.

New Mexico court sent a copy of our reply.

Our reply is likely to make history since the genocide criminal complaint is docketed in a federal court.

























 









Our legal project would not be possible without all of this high tech stuff. But there are problems.

Mitchell's long 8 page response required about a 19 page reply.

Michell was emailed our reply. Outlook Express apparently doesn't like long emails. Our reply got stuck in the OUTBOX. This resulted.

and

We haven't read Bevan's email yet. We have been reading email on our laptop however while on vacation.

The Honorable M. Christina Armijo. Note that Armijo is in Albuquerque.

http://www.prosefights.org/nmlegal/nsalawsuit/vazquez.pdf

 ----- Original Message -----
From: amorales58@comcast.net
To: bill payne
Sent: Friday, June 15, 2007 10:21 AM
Subject: Re: void judgment

Bill, as a matter of record, I agree that we should file a void judgment against vasquez!

 ----- Original Message -----
From: amorales58@comcast.net
To: bill payne
Sent: Friday, June 15, 2007 4:03 PM
Subject: Re: MOTION TO COMPEL DOCKETING OF MOTION FOR EXTENSION OF TIME

I, Arthur R. Morales, have the read the motion below and agree with William H. Payne.

----- Original Message -----
From: bill payne
To: jan.mitchell@usdoj.gov ; foialo@nsa.gov
Cc: amorales58@comcast.net ; mvproposedtext@nmcourt.fed.us ; VazquezChambers@nmcourt.fed.us ; mcaproposedtext@nmcourt.fed.us ; USANM.ECFCivil@usdoj.gov ; craig.larson@usdoj.gov ; bpayne37@comcast.net
Sent: Friday, June 15, 2007 5:30 PM
Subject: MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION
FINAL
Friday June 15, 2007 17:25
http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#vazquez






UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           
Director, National Security Agency                                
National Security Agency                                                
Defendant                                                                         

                                                                                           Federal Rule of Civ. P. 60(b)(4)

MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION

I. INTRODUCTION

1 Docket entry 87 in 97 cv 0266 shows
06/14/2007 87 ORDER of Reference by Judge Martha Vazquez (jmg) (Entered: 06/14/2007)

II. BASIS OF MOTION

2 Judge Judge M. Christina Armijo is presiding judge as of 06/12/2007. See docket entry 86
06/12/2007 86 MINUTE ORDER, Judge M. Christina Armijo added. Judge Santiago E. Campos no longer assigned to case. (ln) (Entered: 06/12/2007)

3 Judge Martha Vazquez is no standing in 97 cv 0266 and thus lack jurisdiction to issue ORDER seen in docket entry 87.

III. ISSUES

4 Judge Martha Vazquez has long history of harassing plaintiffs along with judges Garcia and Downes in Court.

Vazquez's harassment caused her to be named as defendant in New Mexico 01:CV:3118 12 person jury trial lawsuits

which was fraudlently removed to federal court and labeled 01 CV 0634.

5 Docket entry 15 of 01 CV 0634 shows
06/11/2001 15 DEMAND for jury trial by plaintiffs (sl) (Entered: 06/12/2001)

6 Docket entry 57 reads
05/28/2004 57 ORDER by District Judge William F. Downes denying as moot motions [55-1] [49-1] [44-1] [45-1] [39-1] granting motion to dismiss [21-1] denying as moot motions [20-1] [19-1] granting federal defts motion to dismiss pltf's complaint [17-1] denying as moot motions [14-1] [12-1] and granting federal defts motion [7-1] [5-1] dismissing case (cc: all counsel) (sl) (Entered: 05/28/2004)

Plaintiffs have been denied right of jury trial is guaranteed inviolate by 7th Amendment to US Constitution and 28 USC Rule 38.

Moreover, Downes rulings are void for reason of lack of subject matter jurisdiction. Harassment, replevin, and defamation [libel] are not federal questions and no affidavit that these are federal question was even submitted to courts.

9 Downes repeatedly ruled in 00 cv 1574 and 00 cv 1677. for whiich he also lacked subject matter jurisiction and jurisdiction to render verdict since both are jury trial DEMAND federal lawsuits and fraudulently removed New Mexico 12 person paid-for jury trial lawsuits.

These harassing activities earned Downes a criminal complaint in Bernalillo Metropolitan Court which is still subject to action.


10 Lorenzo Garcia in 99 cv 270 issued
11/30/1999 105 JUDGMENT: by Magistrate Judge Lorenzo F. Garcia entered in favor of deft DOE on all of pltf's federal claims which are hereby dismissed with prejudice [95-1] (cc: all counsel*) (rd) (Entered: 11/30/1999)

11/30/1999 106 JUDGMENT: by Magistrate Judge Lorenzo F. Garcia entered in favor of individually named DOE and EEOC defts on all of pltf's federal claims, which are dismissed with prejudice [96-1], [96-2] (cc: all counsel*) (rd) (Entered: 11/30/1999)

11/30/1999 107 JUDGMENT: by Magistrate Judge Lorenzo F. Garcia entered in favor of EEOC on all of pltf's federal claims, which are dismissed with prejudice; all other common law claims against EEOC are dismissed with prejudice [97-1] dismissing case (cc: all counsel*) (rd) (Entered: 11/30/1999)


11 99 cv 270 is
03/24/1999 3 DEMAND for jury trial by pltf (rd) (Entered: 03/25/1999)

Thus Payne was denied right of jury trial is guaranteed inviolate by 7th Amendment to US Constitution and 28 USC Rule 38. which is voidable.

12 Vazquez writes in her ORDER wrote

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 previously been dismissed (Arthur R. Morales and William H. Payne v. Theodore C. Baca et al., CIV 01-634, Doc. 61).2

and
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).

Downes, in fact, wrote

08/18/2004 61 ORDER by District Judge William F. Downes granting injunctive relief and prohibiting pltfs William Payne and Arthur Morales from initiating a civil action in the U.S. District Court (cc: all counsel) (sl) (Entered: 08/18/2004)

Motion to vacate judgment in CIV NO 97 0266 SC/DJS is well within allowable legal activities since "initiating a civil action in the U.S. District Court" was not done. We merely filed to void in existing case before the court.

IV RELIEF SOUGHT

6 Return filed stamped copy of this Motion with 10 working days.

7 Sign attached ORDER VACATING Judge Martha Vazaquez' s 06/14/2007 87 ORDER of Reference by Judge Martha Vazquez (jmg) (Entered: 06/14/2007)

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

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION was mailed to LTG Keith B. Alexander, Director, National Security Agency, 9800 Savage Road, Fort George G. Meade, MD 20755-6000, emailed Jan Elizabeth Mitchell, Assistant US Attorney, 201 3rd ST NW, ABQ, NM 87102 at jan.mitchell@usdoj.gov, and foialo@nsa.gov by email this Friday June 15, 2007.



DRAFT
Friday June 15, 2007 15:39
http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#order

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           
Director, National Security Agency                                
National Security Agency                                                
Defendant                                                                         

                                                                                           Federal Rule of Civ. P. 60(b)(4)

ORDER VACATING Judge Martha Vazaquez' s
06/14/2007 87 ORDER of Reference by Judge Martha Vazquez (jmg) (Entered: 06/14/2007)

1 Judge Martha Vazaquez' s 06/14/2007 87 ORDER of Reference by Judge Martha Vazquez (jmg) (Entered: 06/14/2007) is void for lack of jurisdiction since judgeM. Christina Armijo was assigned to case on 06/12/2007.

2 Judges Martha Vazquez, Lorenzo Garcia, and William F Downes are ordered to desist in any attempts to further sanction litigants Morales and Payne from pursuing legal remedies guaranteed by US Constitution and Federal Rules of Civil Procedure.






                                                                             _________________________
                                                                              M. Christina Armijo
                                                                             United States District Judge

                                                                              _________________________
                                                                              Date

(3) Fraud committed in the procurement of jurisdiction
(5)a judge does not follow statutory procedure,
(6)Unlawful activity of a judge,
(7)Violation of due process
(8) If the court exceeded it's statutory authority
(21)where an order/judgment is based on a void order/judgment

(6) Unlawful activity of a judge, Code of Judicial Conduct
(20) Where an order/judgment is based on a void order/judgment

Downes has voidable 01 cv 0634.

Downes has voidable 00 cv 1574.

Downes has voidable 00 cv 1677.

Lorenzo Garcia also has voidable judgment in 99 cv 270.

§ 636. Jurisdiction, powers, and temporary assignment
(a) Each United States magistrate judge serving under this chapter shall have within the territorial jurisdiction prescribed by his appointment—
(1) all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Courts;
(2) the power to administer oaths and affirmations, issue orders pursuant to section 3142 of title 18 concerning release or detention of persons pending trial, and take acknowledgements, affidavits, and depositions;
(3) the power to conduct trials under section 3401, title 18, United States Code, in conformity with and subject to the limitations of that section;
(4) the power to enter a sentence for a petty offense; and
(5) the power to enter a sentence for a class A misdemeanor in a case in which the parties have consented.
....
(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.
(C) the magistrate judge shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties.

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.

...

Lorenzo Garcia also has voidable judgment in 99 cv 270.

http://www.prosefights.org/nmlegal/nsalawsuit/vazquez.pdf
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

WILLIAM H. PAYNE,
Plaintiffs,

vs. CIVIL NO. 97-266 NATIONAL SECURITY AGENCY,
Defendant.

ORDER OF REFERENCE
THIS MATTER is before the Court sua sponte. On May 16, 2007, pro se Plaintiffs William H. Payne and Arthur R. Morales filed pleadings in this case [Docs. 81, 82], years after the case was dismissed [Doc. 73, Oct. 27, 1999] and the dismissal affirmed by the Tenth Circuit Court of Appeals [Doc. 80, Dec. 13, 2000]. The filing of the motion of the present motion to set aside judgment [Doc.

81] necessitated a response from the United States [Doc. 83]. The Court now issues an Order of Reference directing that the district’s Chief Magistrate Judge, Lorenzo F. Garcia, issue a report and recommendation on the motion to vacate1 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 previously been dismissed (Arthur R. Morales and William H. Payne v. Theodore C. Baca et al., CIV 01-634, Doc. 61).2

_________

1The report and recommendation will be issued to the Chief Judge, as the former trial judge, the Honorable Santiago Campos, is deceased and no Article III judge is currently assigned to this case. 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).

_________

The Chief Magistrate Judge 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 censure, striking pleadings, imposition of fines and/or incarceration of the Plaintiffs. The Chief Magistrate Judge will issue his report and recommendation to the Court in accord with the requirements of 28 U.S.C. § 636(b)(1).

____________________________________
Martha Vaquez

CHIEF UNITED STATES DISTRICT JUDGE

Read 17:15 Bozeman, MT on PACER.

 



FINAL
Wednesday June 6, 2007 15:02




http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#reply







UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           
Director, National Security Agency                               
National Security Agency                                               
Defendant                                                                         
                                                                                           Federal Rule of Civ. P. 60(b)(4)
REPLY TO RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION DIRECTED TO DISTRICT OF NEW MEXICO, SANTA FE CHIEF JUDGE MARTHA VAZQUEZ
1 Mitchell writes
Defendant National Security Agency1 opposes Plaintiffs’2 Motion to Void Judgment for Lack of Jurisdiction Directed To District Of New Mexico, Santa Fe Chief Judge Martha Vázquez, hereinafter referred to as “Plaintiffs’ Motion.”3

Defendant National Security Agency to oppose a motion to void judgment must show that deceased judge Santiago followed rules of the Court and US Constitution.

Campos violated the US Constitution by giving defendant NSA summary judgment in a jury trial lawsuit.
128 The limitations inherent in the requirements of due process of law extend to judicial, as well as political, branches of the government, 8 so that a judgment may not be rendered in violation of those constitutional limitations and guaranties. 9

Right of jury trial is guaranteed inviolate by 7th Amendment to US Constitution and 28 USC Rule 38.

2 Mitchell writes
Plaintiff contends that the Summary Judgment entered in this case is void for lack of jurisdiction because he paid the filing fee and demanded a trial by jury. Plaintiff previously raised this same issue and it was denied by Judge Santiago Campos in his Memorandum Opinion and Order dated February 17, 1999 [Doc. No. 57] and his Memorandum Opinion and Order dated December 23, 1999 [Doc. No. 77] and, as such, constitutes law of the case. Plaintiffs’ Motion should be denied.

At issue is not whether Campos' Opinion and Order and Order constitutes "law of case." but rather to void Campos' rulings for failure of
(3) the court or tribunal must have the power of authority to render the particular judgment.

3 Mitchell writes

Plaintiffs’ Motion should be denied.

Plaintiffs' motion CANNOT BE DENIED if evidence in writing exists that Campos' judgments violated 7th Amendment to US Constitution and 28 USC Rule 38 which Campos' judgments did by denying us right to trial by jury guaranteed inviolate.

Further Plaintiffs' motion to void cannot be denied because,

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

4 Michell writes
STATEMENT OF THE CASE

This lawsuit was filed on February 28, 1997 under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, relating to a request for documents which William H. Payne made upon the National Security Agency.

Mitchell's statement does not give the true picture of the situation.

Below paragraphs tell what happened and why.
Paragraph 1

Nojeh Coup

In July 1980, Zbigniew Brzezinski of the United States 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 and Latin America. Shortly after Brzezinski's meeting with Hussein, the President of Iran, Abolhassan Bani-Sadr quietly rounded up 600 of the loyalist plotters within Iran, putting an effective end to the Nojeh Coup.[5] Saddam decided to invade without the Iranian officers' assistance, beginning the Iran-Iraq war on 22 September 1980.

Paragraph recently removed from Wikipedia

Paragraph 2

In 1980, the US and Britain engineered Saddam Hussein’s invasion of Iran in an attempt to crush its new revolutionary Islamic government. That war inflicted nearly one million casualties on Iran. President Ahmadinejad led volunteers in the war.

Canadian journalist Eric Margolis

Paragraph 3

Next, this leak was compounded by the U.S. demonstration that it was also reading secret Iranian communications. As reported in Switzerland's Neue Zurcher Zeitung, the U.S. provided the contents of encrypted Iranian messages to France to assist in the conviction of Ali Vakili Rad and Massoud Hendi for the stabbing death in the Paris suburb of Suresnes of the former Iranian prime minister Shahpour Bakhtiar and his personal secretary Katibeh Fallouch. [2]

J Orlin Grabbe

Paragraph 4

What information was provided to Saddam Hussein exactly? Answers to this question are currently being sought in a lawsuit against NSA in New Mexico, which has asked to see "all Iranian messages and translations between January 1, 1980 and June 10, 1996". [7]

J Orlin Grabbe

5 Mitchells writes

1. Plaintiffs filed their first motion for summary judgment on June 4, 1997 [Doc. No. 11] to which Defendant responded on June 19, 1997 [Doc. No. 17] and Plaintiffs replied on July 8, 1997 [Doc. No. 20].

2. Defendant filed its motion for partial dismissal and for summary judgment on October 3, 1997 [Doc. No. 23], to which Plaintiffs responded on October 31, 1997 [Doc. No. 30]. Defendant filed its reply on November 14, 1997 [Doc. No. 32] and Plaintiffs filed an answer (surreply) on November 28, 1997 [Doc. No. 33].

3. Plaintiffs filed their second motion for summary judgment on December 22, 1997 [Doc. No. 34], to which Defendant responded on January 5, 1998 [Doc. No. 35] and Plaintiffs replied on January 20, 1998 [Doc. No. 36].

4. On April 30, 1998, Judge Campos entered a Memorandum Opinion and Order denying as moot Plaintiffs’ motion for summary judgment, denying Defendant’s motion for partial dismissal and staying Defendant’s motion for summary judgment pending an in camera review of a declaration to be provided to the Court4, and denying without prejudice Plaintiffs’ motion for summary judgment [Doc. No. 42].

5. Plaintiffs filed a motion to amend the memorandum opinion and order [Doc. No. 43], which was denied by the Court on May 21, 1998 [Doc. No. 44.] On May 28, 1998, Plaintiff Payne filed another motion to amend the Memorandum Opinion and Order which was denied on February 17, 1999 [Doc. No. 57.]

6. Plaintiffs filed a Notice of Interlocutory Appeal on June 9, 1998 [Doc. Nos 46, 47]. The appeal was dismissed by the United States Court of Appeals for the Tenth Circuit for lack of jurisdiction on December 17, 1998 [Doc. No. 52].

7. On October 27, 1999, Judge Campos entered a Memorandum Opinion and Order granting Defendant’s motion for summary judgment, dismissing the case, [Doc. No. 72], and entered Summary Judgment [Doc. No. 73].

8. On November 9, 1999, Plaintiff filed a motion to alter and amend the Memorandum Opinion and Order [Doc. No. 74], to which Defendant filed a response [Doc. No. 75], and Plaintiff filed a reply [Doc. No. 76].

9. On December 23, 1999, Judge Campos entered a Memorandum Opinion and Order denying the motion to alter and amend [Doc. No. 77].

10. Plaintiff filed a Notice of Appeal with the United States Court of Appeals for the Tenth Circuit on January 3, 2000. [Doc. No. 78]. The Court of Appeals affirmed the decision of the District Court on December 13, 2000 [Doc. No. 80].


4 The FOIA specifically authorizes in camera examination of documents. 5 U.S.C. § 552(a)(4)(B) (2000); S. Conf. Rep. No. 93-1200 at 9 (1974).

All Mitchell writes in above 1-10 is irrelevant for the reason that judge Campos did not schedule DEMANDed trial by jury and let the jury, not Campos, reach a verdict.

6 Mitchell writes

ARGUMENT

Plaintiff William H. Payne asserts that because he paid a filing fee of $150 on February 28, 1997 and requested a jury trial, Judge Santiago Campos lacked jurisdiction to grant Defendant’s motion for summary judgment.

This is correct. Right of jury trial is guaranteed inviolate by 7th Amendment to US Constitution and 28 USC Rule 38.

7 Michell writes

First, there is no right to a jury trial under the Freedom of Information Act.

Had the authors of the US Constitution intended that there be exceptions to

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

then they would have written

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, except in some special cases, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

In all lawsuits where the value in controversy shall exceed twenty dollars, the right to trial by jury is inviolate not matter what the subject.

Which points to a mistake in the docket of 97-cv-00266-SEC-DJS

Demand: $0

Complaint states

C award plaintiffs its costs and reasonable fees incurred in this action; and ....

Settlement fees are $1,000 per docket entry. After taxes, of course.

8 Michell writes

Second, the granting of summary judgment was entirely appropriate in this case.

Above statement is false for the reason that 97-cv-00266 is a jury trial lawsuit which can only be decided by jury verdict.

9 Michell writes

Third, Plaintiff has previously made this same assertion in this Court, i.e., that he has a right to a jury trial under the Seventh Amendment of the United States Constitution and under Federal Rule of Civil Procedure 38 [Doc. Nos. 44, 45, 76]. This argument was specifically addressed and rejected by this Court [Doc. No. 57]. Plaintiff argued the right to a jury trial again in his reply [Doc. No. 76] which the Court again rejected in its Memorandum Opinion and Order entered on December 23, 1999 [Doc. No. 77]. Under the law of the case, this issue should not be relitigated.

The court should have helped pro se plaintiffs and pointed out, sua sponte, that its ruling was void in 1999.

Plaintiffs only learned in about 2006 that void judgment was the proper venue for relief of Campos disregard for Right of jury trial is guaranteed inviolate by 7th Amendment to US Constitution and 28 USC Rule 38. Plaintiff learned this from The Family Guardian.

Only in 2007 have plaintiffs learn of the mechanics to void a judgment from Moore's Forms [Bender], tocongress.com, voidjudgments.net, VOID JUDGMENTS, Twenty-two reasons to vacate void judgment, Authorities on Void Judgments, and others. So plaintiffs' delay in filing to vacate judgmentS [we have many to void] is easily understood.

And we are not "religating," we are voiding judgments for
(3) the court or tribunal must have the power of authority to render the particular judgment.

which Campos did not.

And, of course, from our MANDATORY JUDICIAL NOTICE AND AUTHORITIES TO VOID JUDGMENT
5 A void judgment must be dismissed, regardless of timeliness if jurisdiction is deficient. 5

9 Michell writes
I. No Right To Jury Trial In FOIA Action

Plaintiff contends that because he paid a filing fee of $150 and demanded a jury trial in this lawsuit, Judge Campos lacked jurisdiction to dismiss the lawsuit. Plaintiff has previously raised a similar, if not identical argument in this case. On May 21, 1998, Plaintiff Payne filed a motion to amend the Memorandum Opinion and Order entered April 30, 1998 [Doc. No. 45]. In his motion, Plaintiff asserted that he had a right to a jury trial under the Seventh Amendment of the United States Constitution and under Federal Rule of Civil Procedure 38 and alleged that the Court violated Plaintiff’s rights to a jury trial. In his Memorandum Opinion and Order dated February 17, 1999 [Doc. No. 57] at page 5, Judge Campos addressed this issue.

As Judge Campos succinctly stated:

There is no right to a jury trial in a statutory cause of action against the federal government unless the relevant statute explicitly and unambiguously provides such a right. See Lehman v. Nakshian, 453 U.S. 156, 16-62, 168 (1981); see also Johnson v. Hospital of Med. College of Pa., 826 F. Supp. 942, 942, 945 (E.D. Pa. 1993). Congress did not explicitly provide for right to jury trial in FOIA. See 5 U.S.C. § 552.

Campos, instead of guiding a DEMANDed jury trial, is issued a vacuous Memorandum Opinion and Order dated February 17, 1999 [Doc. No. 57].

Lehman v. Nakshian is a voidable ruling because Right of jury trial is guaranteed inviolate by 7th Amendment to US Constitution and 28 USC Rule 38. Court did not have

(3) the court or tribunal must have the power of authority to render the particular judgment.

Johnson v. Hospital of Med. College of Pa. is also a voidable ruling if a trial by jury was DEMANDed but not obtained.

Voidable ruling should be used to try to support claim that Campos' ruling is not voidable.

Any judgment which says that a party does not have right to trial by jury when jury DEMAND was made is, of course, voidable.

10 Michell writes

While summary judgment is the procedural vehicle by which nearly all FOIA cases are resolved, in the event of a trial on a contested issue of fact, it will be decided by a judge alone because the FOIA does not provide for a jury trial. Office of Information and Privacy, U. S. Department of Justice, Freedom of Information Act & Privacy Act Overview, 804 (May 2004 ed.). Thus, Plaintiff was not entitled to a jury trial in this action.

Mitchell's above statement implies that FOIA overrules the 7th Amendment to US Constitution and 28 USC Rule 38.

Not only is Michell's above statement false, it is unintelligent, incompetent and with malicious intent to misrepresent the US Constitution for personal gain.

A jury trial is a jury trial. All that is required is that the amount in question be over $20.

11 Michell writes
II. Summary Judgment Was Appropriate

As Judge Campos held, there is no Seventh Amendment jury trial right where no genuine issue of material fact exists because the court may, without violating Seventh Amendment rights, grant summary judgment pursuant to Fed. R. Civ. P. 56.

Two issues of material facts are 1] do we get the requested documents from NSA

"all Iranian messages and translations between January 1, 1980 and June 10, 1996".

and 2] our $1,000 per docket entry in CIV NO 97 0266 either by settlment or almost-certain jury award.

This Court must take into consideration possible consequences if the matter of the spy sting on Iran perpetrated by NSA is not peacefully settled.

First step to peaceful settlement is to obtain the documents through settlement or jury trial decision followed by court order.

12 Michell writes

Memorandum Opinion and Order at 6, [Doc. No. 57], citing Shore v. Parklane Hosiery Co., Inc., 565 F.2d 815, 819 (2d Cir. 1977) (citation omitted), aff’d, Parklane Hosiery Co. Inc. v. Shore, 439 U. S. 322 (1979). See Murphy v. Derwinski, 990 F.2d 540, 544 (10th Cir. 1993)(citing Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U. S. 317, 322-23 (1986)). It is beyond question that a district court may grant summary judgment where the material facts concerning a claim cannot reasonably be disputed. Even though this technically prevents the parties from having a jury rule upon those facts, there is no need to go forward with a jury trial, (assuming a jury trial is even permitted under the appropriate statute, which, as stated supra, is not permitted under FOIA), when the pertinent facts are obvious and indisputable from the record; the only remaining truly debatable matters are legal questions that a court is competent to address. Garvie v. City of Fort Walton Beach, Florida, 366 F.3d 1186 (11th Cir. 2004).

Further, a Seventh Amendment right to trial is not violated because no such right exists if a party fails to make a Rule 56-required demonstration that some dispute of material fact exists which a trial could resolve. Conboy v. Edward D. Jones Co., 2005 WL 1515479 (5th Cir. 2005). Without a genuine issue for trial, there can be no demand for a jury trial. See Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 250 (1986)(summary judgment inquiry is threshold determination “whether there is the need for a trial.”); DeYoung v. Lorentz, No. 95-3153, 69 F.3d 547, 1995 WL 662087 at *2 n.5 (10th Cir. Nov. 9, 1995) (unpublished disposition) (“[A] properly applied summary judgment procedure does not violate the Seventh Amendment.”) Plaintiff in this case did not establish that a dispute of material fact existed nor was there a genuine issue for trial.

If a jury trial was DEMANDed and not received in any of Mitchell's above citations, then that lawsuit is voidable because the right of jury trial is guaranteed inviolate by 7th Amendment to US Constitution and 28 USC Rule 38.

Mitchell's statement, "Plaintiff in this case did not establish that a dispute of material fact existed nor was there a genuine issue for trial." is repeated again. So we will repeat the response with an underline.

Two issues of material facts are 1] do we get the requested documents from NSA

"all Iranian messages and translations between January 1, 1980 and June 10, 1996".

and 2] our $1,000 per docket entry in CIV NO 97 0266 either by settlment or almost-certain jury award.

This Court must take into consideration possible consequences if the matter of the spy sting on Iran perpetrated by NSA is not peacefully settled. More important the malicious intent to violate the rules and purpose of the US Constitution is egregious attempt to undermine, not only the power of the US Citizen, but jeopardize our national health and survival.

First step to peaceful settlement is to obtain the documents through settlement or jury trial decision followed by court order.

13 Michell writes

Finally, as Judge Campos noted, and the record clearly reflects, “Plaintiff cannot complain about the possible resolution of this case on Defendant’s motion for summary judgment when [Plaintiff] himself has filed two motions for summary judgment in this case.” Memorandum Opinion and Order, at 7 [Doc. No. 57]. Judge Campos’ holding in 1999 that the Seventh Amendment and Fed. R. Civ. P. 38 do not apply to Plaintiff’s lawsuit and Plaintiff has no right to a jury trial is an appropriate finding and should not be set aside. Based upon the findings of this Court, the granting of summary judgment was entirely appropriate.

Plaintiffs can move for summary judgment because they brought the lawsuit AND defendant DID NOT DEMAND trial by jury.

Defendants cannot legally move to summary judgment when a jury DEMAND has been filed by plaintiffs.

A judge who dismisses a jury trial DEMAND lawsuit is subject to a void judgment motion as is happening here.

Plaintiffs can also move to dismiss lawsuit, as they will do if 1] we get the requested documents from NSA
"all Iranian messages and translations between January 1, 1980 and June 10, 1996".

and 2] our $1,000 per docket entry in CIV NO 97 0266 either by settlment or almost-certain jury award.

14 Michell writes
III. Law Of The Case

“‘[T]he law of the case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’” McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1034 (10th Cir. 2000) (quoting United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991)). “Law of the case rules have developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.” Kennedy v. Lubar, 273 F.3d 1293, 1298 (10th Cir. 2001) (quoting 18 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction § 4478, at 788 (1981)).

Although Plaintiff has requested that the judgment in Civ. No. 97-266 SC/DJS be voided as opposed to reconsidered, law of the case would still apply. Because this Court has already issued decisions determining that the Seventh Amendment and Fed. R. Civ. P. 38 did not apply to Plaintiff’s lawsuit and that Plaintiff had no right to a jury trial, [Doc. Nos. 57, 77], the doctrine of law of the case governs. The Tenth Circuit has “routinely recognized that the law of the case doctrine is ‘discretionary, not mandatory,’ and that the rule ‘merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit on their power.’” Stifel, Nicolaus & co., v. Woolsey & Co., 81 F.3d 1540, 1544 (10th Cir. 1996) (quoting Messenger v. Anderson, 225 U.S. 436, 444 (1912).

However, even though the doctrine of law of the case is discretionary in nature and not absolute, there are limitations on when a Court should depart from the doctrine. The Tenth Circuit has determined that there are “three exceptionally narrow circumstances” when it will depart from the law of the case doctrine which are: “(1) when the evidence in a subsequent trial is substantially different; (2) when controlling authority has subsequently made a contrary decision of the law applicable to such issues; or (3) when the decision was clearly erroneous and would work a manifest injustice.” United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998), cert. denied, 525 U.S. 905 (1998). In this case, none of the three narrow exceptions apply. As to the first exception, there has not been a trial on this matter wherein new evidence would alter the Court’s decision. The second exception is equally inapplicable in that there has not been any new case law on the matter. Regarding the third exception, there is absolutely no indication that the Court’s decision was “clearly erroneous and would work a manifest injustice” nor that the Court lacked jurisdiction in the first place.

“[T]here is a natural and healthy reluctance not to reconsider the decision (or, in this case, void the decision) unless powerful reasons are given for doing so. Otherwise parties would have an incentive constantly to pester judges with requests for reconsideration.” Johnson v. Burken, 930 F.2d 1202, 1207 (7th Cir. 1991). The fact that Plaintiff is not happy with the results of this case nearly seven years after the United States Court of Appeals for the Tenth Circuit affirmed the District Court’s decision does not constitute “manifest injustice,” does not establish that this Court lacked jurisdiction to render a decision and certainly does not warrant reopening this case. Thus, this Court’s holding pertaining to Plaintiff’s right to a jury trial must stand and Plaintiff’s motion to void the judgment entered herein must fail.

Michell apparently failed to read or understand the Mandatory Judicial Notice filed with the Motion to void judgment so main points are shown below
1 (3) the court or tribunal must have the power of authority to render the particular judgment.

2 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.

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

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

5 The passage of time, however great, does not affect the validity of a judgment 6 and cannot render a void judgment valid

6 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.

7 A court may not render a judgment which transcends the limits of its authority, and a judgment is void if it is beyond the powers granted to the court by the law of its organization, even where the court has jurisdiction over the parties and the subject matter.

and finally for the benefit of the Court

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

So Mitchell's arguments must be rejected, our proposed ORDER signed, and then we
A Settle

B have jury trial is guaranteed inviolate by 7th Amendment to US Constitution and 28 USC Rule 38. with the conditions that
1 No oral argument is necessary
2 Only the original complaint
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
6 ORDER VACATING Judge Santiago Campos'
10/27/99 MEMORANDUM, OPINION, AND ORDER

7 RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION DIRECTED TO DISTRICT OF NEW MEXICO, SANTA FE CHIEF JUDGE MARTHA VAZQUEZ
8 REPLY TO RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION DIRECTED TO DISTRICT OF NEW MEXICO, SANTA FE CHIEF JUDGE MARTHA VAZQUEZ
http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#voidjudgment

is given to the jury to render its verdict.

Jury members should be required to sign a verified statement that they have read 1-5.


14 Michell writes
CONCLUSION

This Court had jurisdiction over the above-captioned case and summary judgment was appropriately entered. For the reasons stated above, Plaintiffs’ Motion should be denied.

For reasons given by Plaintiffs, the MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION DIRECTED TO DISTRICT OF NEW MEXICO, SANTA FE CHIEF JUDGE MARTHA VAZQUEZ must be granted because "relief is mandatory and is not discretionary."

15 Since this matter is properly before this court, we feel that we should try to peacefully settle these unfortunate matters before they get worse.

Paragraph 1 of this reply, the Nojeh Coup, appears to indicate that Zibigniew Brzezinski incited Saddam Hussein to attack Iran. This appears to be a violation of 18 USC § 1091(c).

Rule 3 of the Federal Rules of Criminal Procedure, entitled the Complaint provides:

The complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a magistrate.

As you may be aware,

An individual may "make a written complaint on oath before an examining and committing magistrate, and obtain a warrant of arrest." This is in conformity with the Federal Constitution, and "consonant with the principles of natural justice and personal liberty found in the common law."

[United States v Kilpatrick (1883, DC NC) 16G 765, 769]

You may also be aware,

A complaint though quite general in terms is valid if it sufficiently apprises the defendant of the nature of the offense with which he is charged.

[United States v Wood (1927, DC Tex) 26F2d 908, 910, affd (CA5 Tex) 26 F2d 912.

And for your edification,

The commission of a crime must be shown by facts positively stated. The oath or affirmation required is of facts and not opinions or conclusion.

[United States ex rel. King v Gokey (1929, DC NY) 32 F2d 793, 794] The complaint must be accompanied by an oath. [Re Rules of Court (1877, CC Ga) 3 Woods 502, F Cas No 12126]

A complaint must be sworn to before a commissioner or other officer empowered to commit persons charged with offenses against the United States.

[United States v Bierley ( 1971, WD Pa) 331 F Supp 1182]

Such office is now called a magistrate.

A complaint is ordinarily made by an investigating officer or agent, and where private citizens seek warrants of arrest, the practice recommended by the Judicial Conference of the United States is to refer the complaint to the United States Attorney. However, further reference to him is rendered futile where a mandamus proceeding is brought to compel him to prosecute and he opposes the proceeding.

[Pugach v Klein (1961, SD NY) 193 F Supp 630, citing Manual for United States Commissioners 5 (1948)]

We are citizens of the United States and you are the assigned magistrate.

In order to satisfy the requirement of the Constitution and Rules 3 and 4, a written and sworn complaint should set forth the essential facts constituting the offense charged and also facts showing that the offense was committed and that the defendant committed it.

And,

As to the requirement that the complaint be made on personal knowledge of the complainant, it is enough for the issuance of a warrant that a complainant shows it to be on the knowledge of the complainant.

[Giordenello v United States (1958) 357 US 480, 2 L Ed. 2d 1503, 78 S Ct 1245, revg (Ca5 Tx) 241 F2d 575, 579 in accord Rice v Ames (1901) 180 US 371, 45 L Ed 577, 21 S ct 406, and United States v Walker, (1952, CA2 NY) 197 F 2d 287, 289, cert den 344 US 877, 97 L Ed 679, 73 S Ct 172]

We charge Zibigniew Brzezinski with inciting Saddam Hussein to invade Iran in 1980.
SUBSCRIBED, SWORN TO and ACKNOWLEDGED before me this day of _____________

Arthur R Morales ________________________________

SUBSCRIBED, SWORN TO and ACKNOWLEDGED before me this day of _____________

William H Payne ________________________________

Verification

Under penalty of perjury as provided by law, the undersigned certifies pursuant to 28 USC section 1746 that material factual statements set forth in this pleading are true and correct, except as to any matters therein stated to be information and belief of such matters the undersigned certifies as aforesaid that the undersigned verily believes the same to be true.

Notary Public ______________________________________

Plaintiffs ask that you return a copy of the Brzezinski summons to us within 60 days.

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
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION was mailed to LTG Keith B. Alexander, Director, National Security Agency, 9800 Savage Road, Fort George G. Meade, MD 20755-6000, Jan Elizabeth Mitchell, Assistant US Attorney, 201 3rd ST NW, ABQ, NM 87102 and foialo@nsa.gov by email.

_________________________

_________________________
Date



Wednesday June 6, 2007

Clerk
United States District Court
Post Office Box 2710
Santa Fe, New Mexico 87504

Dear Clerk:

Enclosed are an original and two copies of REPLY TO RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION DIRECTED TO DISTRICT OF NEW MEXICO, SANTA FE CHIEF JUDGE MARTHA VAZQUEZ and a self addressed stamped envelope.

Please return a file stamped copies to us.

Thank you in advance.

Sincerely

Payne and Morales

 
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           
Director, National Security Agency                               
National Security Agency                                               
Defendant                                                                                 Federal Rule of Civ. P. 6(b)                 

MOTION FOR EXTENSION OF TIME

1 COMES NOW plaintiffs Arthur R Morales and William H Payne to request extension of 14 days to respond to any document filed in No. 97-0266 between June 5 and June 22, 2007 for reason we will be on vacation roughly and unavailable between June 7 and June 22, 2007.

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
CERTIFICATE OF SERVICE

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

Mitchell response citations. Monday June 4, 2007 09:57

http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#responsecitations

1 LEHMAN v. NAKSHIAN, 453 U.S. 156 (1981)

2 Johnson v. Hospital of Med. College of Pa., 826 F. Supp. 942, 942, 945 (E.D. Pa. 1993)

3 Shore v. Parklane Hosiery Co., Inc., 565 F.2d 815, 819 (2d Cir. 1977)

7. Section 20(a) of 1934 Act: Shore v. Parklane Hosiery Co., 565 F.2d 815 (2d Cir. 1977) (acknowledging the right to a jury trial under Section 20(a)), aff'd, 439 U.S. 322 (1979).

4 Parklane Hosiery Co. Inc. v. Shore, 439 U. S. 322 (1979)

.Eight years later, in Parklane Hosiery Co. v. Shore, the Supreme Court held that in the fed- eral civil context, trial courts should have broad discretion in allowing offensive issue preclusion. Therefore, in federal civil cases, issue preclusion can be used in the second lawsuit by either the defendant or the plaintiff and can bind a party who was not a party in the first action.

5 Murphy v. Derwinski, 990 F.2d 540, 544 (10th Cir. 1993)

By comparison, a disparate impact claim requires no finding of intentional discrimination to prove aprima facie case. Murphy v. Derwinski (See Tab 7), 990 F.2d 540, 544 (10th Cir, 1993). To make out aprima facie case of discrimination under the disparate impact theory, plaintiff must show that a neutralemployment practice or policy caused a significant disparate impact on a protected group. Id. As in patternor practice discrimination cases, statistics may be used to show the disparate impact resulting from thecomplained of practice or policy.

Accordingly, "[t]he thrust of the inquiry is whether the employer's practice creates 'artificial, arbitrary and unnecessary barriers to employment.'" Murphy v. Derwinski, 990 F.2d 540, 544 (10th Cir. 1993)

"Under the disparate impact theory, a plaintiff must first make out a prima facie case of discrimination by showing that a specific identifiable employment practice or policy caused a significant disparate impact on a protected group." Murphy v. Derwinski, 990 F.2d 540, 544 (10th Cir. 1993) (internal quotation marks omitted). In other words, a plaintiff must "show that there is a legally significant disparity between (a) the [gender] composition, caused by the challenged employment practice, of the pool of those enjoying a job or job benefit; and (b) the [gender] composition of the qualified applicant pool .

6 Celotex Corp. v. Catrett, 477 U. S. 317, 322-23 (1986).

Indeed, the United States Supreme Court has stated that summary judgment is mandatory in the absence of a genuine issue of any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

7 Garvie v. City of Fort Walton Beach, Florida, 366 F.3d 1186 (11th Cir. 2004).

Google found

Pro Se Fights

Garvie v. City of Fort Walton Beach, Florida, 366 F.3d 1186 (11th Cir. 2004). Further, a Seventh Amendment right to trial is not violated because no such ... mywebpages.comcast.net/bpayne37/index.htm - 581k - May 31, 2007 -

8 Conboy v. Edward D. Jones Co., 2005 WL 1515479 (5th Cir. 2005).

Google found

Pro Se Fights

Conboy v. Edward D. Jones Co., 2005 WL 1515479 (5th Cir. 2005). Without a genuine issue for trial, there can be no demand for a jury trial. See Anderson v. ... mywebpages.comcast.net/bpayne37/index.htm - 581k - May 31, 2007 -

9 Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 250 (1986)

10 DeYoung v. Lorentz, No. 95-3153, 69 F.3d 547, 1995 WL 662087 at *2 n.5 (10th Cir. Nov. 9, 1995) (unpublished disposition)
Google found

Pro Se Fights

DeYoung v. Lorentz, No. 95-3153, 69 F.3d 547, 1995 WL 662087 at *2 n.5 (10th Cir. Nov. 9, 1995) (unpublished disposition) (“[A] properly applied summary ... mywebpages.comcast.net/bpayne37/index.htm - 581k - May 31, 2007 -

11 McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1034 (10th Cir. 2000)
Furthermore, the statutory-review scheme did not give the district court jurisdiction to review the ALJ's jurisdictional determinations. The district court in this case held that because the ALJ's decisions resolved the jurisdictional issue and Stratton did not file the proper appeal, the ALJ's decisions stand as the law of the case. See R., Vol. V at 17-18. "The law of the case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case." Huffman v. Saul Holdings Ltd. P'ship, 262 F.3d 1128, 1132 (10th Cir. 2001) (quotation omitted); see McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1034 & n.1 (10th Cir. 2000);

In short, the court took Plaintiff's factual allegations as true and still determined that none of his asserted rights had been violated. Stare decisis, see United States v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000), and the law of the case doctrine, see McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1034 (10th Cir. 2000), compel us to follow Tonkovich I.

Lots more google hits.

12 United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991).
"The law of the case 'doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)). Accordingly, "when a case is appealed and remanded, the decision of the appellate court establishes the law of the case and ordinarily will be followed by both the trial court on remand and the appellate court in any subsequent appeal." Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995). This doctrine is "based on sound public policy that litigation should come to an end and is designed to bring about a quick resolution of disputes by preventing continued re-argument of issues already decided." Gage v. General Motors Corp., 796 F.2d 345, 349 (10th Cir. 1986) (citations omitted). Of course, this rule "also serves the purposes of discouraging panel shopping at the court of appeals level." Monsisvais, 946 F.2d at 116.

13 Kennedy v. Lubar, 273 F.3d 1293, 1298 (10th Cir. 2001).

14 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction § 4478, at 788 (1981)).
?11 "'[T]he law of the case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1034 (10th Cir. 2000) (quoting United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991)) (further quotations omitted). "Law of the case rules have developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit," 18 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction ? 4478, at 788 (1981) ("Wright & Miller"). Such rules are commonly applied to prevent an appellate court from revisiting or reconsidering "matters resolved on a prior appeal," and it is not uncommon for "appellate court . . . [to] adhere[] to prior rulings as the law of the case, at times despite substantial reservations as to the correctness of the ruling." Id.

15 Stifel, Nicolaus & co., v. Woolsey & Co., 81 F.3d 1540, 1544 (10th Cir. 1996)
This court has "routinely recognized," however, that application of these principles is "'discretionary, not mandatory.'" Kennedy v. Lubar, 273 F.3d 1293, 1299 (10th Cir. 2001) (quoting Stifel, Nicolaus & Co. v. Woolsey & Co., 81 F.3d 1540, 1544 (10th Cir. 1996) (further quotation omitted)). There are well-recognized exceptions to both the law of the case doctrine and the mandate rule.(4) One of these exceptions is triggered by a subsequent, contrary decision of applicable law by a controlling authority. Huffman v. Saul Holdings Ltd. P'ship, 262 F.3d 1128, 1133 (10th Cir. 2001).

16 Messenger v. Anderson, 225 U.S. 436, 444 (1912).


17 United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998), cert. denied, 525 U.S. 905 (1998).
Clark previously challenged the instant forfeiture action on double jeopardy grounds. Pursuant to Abney v. United States, 431 U.S. 651, 660 (1977), we considered his appeal of the district court’s denial of his motion to dismiss prior to the completion of the forfeiture proceedings, and affirmed that denial pursuant to United States v. Ursery, 518 U.S. 267, 277-79 (1996). See Orienta Park Second, 1997 WL 312140 at **1. To the extent that Clark re-urges his double jeopardy arguments in this appeal, they are barred not only by Ursery but also by the doctrine of law of the case. See McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1034-35 (10th Cir. 2000). Insofar as Clark’s brief can be read as urging exceptions to this doctrine based either on a theory of intervening change in the law or on a theory the result was "clearly erroneous and would work a manifest injustice," id. at 1035 (quoting United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir.), cert. denied, 525 U.S. 905 (1998)), such arguments are frivolous. Clark relies on United States v. Rhodes, 62 F.3d 1449, 1451-52 (D.C. Cir. 1995), vacated sub nom Rhodes v. United States, 577 U.S. 1164 (1996), which was decided prior to both Ursery and Clark’s initial appeal in this case, and we cannot see how compliance with the clear instructions of the Supreme Court can represent clear error. Clark’s arguments that application of Ursery represented a violation of the Ex Post Facto Clause are likewise entirely without merit. Additionally, we note that the Ursery Court, 518 U.S. at 281-82, expressly declined to extend the holding of Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767 (1994), relied on by Clark, into the context of civil forfeitures.

Number 3 google hit is

Pro Se FightsUnited States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998), cert. denied, 525 U.S. 905 (1998). In this case, none of the three narrow exceptions apply. ... mywebpages.comcast.net/bpayne37/index.htm - 581k - May 31, 2007 -

18 Johnson v. Burken, 930 F.2d 1202, 1207 (7th Cir. 1991).
The taxpayers argue that the Tax Court was precluded by either the doctrine of res judicata or (somewhat more plausibly) the doctrine of law of the case from disallowing the deduction. The case had initially been assigned to a judge of the Tax Court, who granted partial summary judgment for the taxpayers, 94 T.C. 464 (1990), implicitly (the taxpayers argue) resolving the main issue in this case--the applicability of section 483--in their favor. The case was later reassigned to another judge, who reached the opposite conclusion. If the same judge had handled the case throughout, the law of the case doctrine would not have prevented him from reversing himself, Johnson v. Burken, 930 F.2d 1202, 1207 (7th Cir. 1991); Peterson v. Lindner, 765 F.2d 698, 704 (7th Cir. 1985); Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131, 134 (2d Cir. 1956) (L. Hand, J.), unless the time for reconsideration had expired. Johnson v. Burken, supra, 930 F.2d at 1207.

Google hit 4 is

Pro Se Fights

Johnson v. Burken, 930 F.2d 1202, 1207 (7th Cir. 1991). The fact that Plaintiff is not happy with the results of this case nearly seven years after the ... mywebpages.comcast.net/bpayne37/index.htm - 581k - May 31, 2007

Saturday June 2, 2007 19:57

Dear Dr Nejad:

An unfortunate situation has arisen which requires your and others help to resolve peacefully.
In 1980, the US and Britain engineered Saddam Hussein’s invasion of Iran in an attempt to crush its new revolutionary Islamic government. That war inflicted nearly one million casualties on Iran. President Ahmadinejad led volunteers in the war.


Regards

Dr Payne

Book 1
Book 1a
Book 2
Book 3


 
http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#closednonsense
 

District Version v3.0.5 LIVE DBPage 1 of 1
Responses and Replies
6:97-cv-00266-SEC-DJS Payne. et al v. Minihan. et al CASE CLOSED on 10/27/1999

U.S. District Court
District of New Mexico - Version 3.0


Notice of Electronic Filing
The following transaction was entered by Mitchell, Jan on 5/29/2007 at 3:37 PM MDT and filed on 5/29/2007
Case Name:              Payne, et al v. Minihan, ef al
Case Number:           6:97-cv-266
Filer:                          National Security Agency
WARNING: CASE CLOSED on 10/27/1999
Document Number: 83

Docket Text:
RESPONSE in Opposition re [81] MOTION to Set Aside Judgment filed by National Security Agency.
(Mitchell, Jan)

6:97-cv-266 Notice has been electronically mailed to:
^
Jan Elizabeth Mitchell jan.mitchell@usdoj.gov, craig.larson@usdoj.gov,
USANM.ECFCivil@usdoj.gov

6:97-cv-266 Notice has been delivered by other means to:
William H Payne
13015 Calle de Sandias, NE
Albuquerque, NM 87111

The following document(s) are associated with this transaction:
Document description:Main Document
Original filename:n/a
Electronic document Stamp:
[STAMP dcecfStamp_ID=l 167529506 [Date=5/29/2007] [FileNumber=969922-0]
[5415dedl af4b541169b684031 d4891614efb 19d7d7289cdee4af6c403aa6a408073b
3de2a012a71309b29f3a76f8ede83d39fDc52bb5ad293b926f9195d6b211]]


https://ecf.nmd.uscourts.pov/cei-hin/Disnatch.nl?5800911948979635/29/2007


http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#mitchellresponse
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

WILLIAM H. PAYNE

Plaintiff,

vs.                                                                                    CIVIL NO. 97-00266 SEC/DJS

NATIONAL SECURITY AGENCY

Defendant

RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION DIRECTED TO DISTRICT OF NEW MEXICO, SANTA FE CHIEF JUDGE MARTHA VAZQUEZ

Defendant National Security Agency1 opposes Plaintiffs’2 Motion to Void Judgment for Lack of Jurisdiction Directed To District Of New Mexico, Santa Fe Chief Judge Martha Vázquez, hereinafter referred to as “Plaintiffs’ Motion.”3 Plaintiff contends that the Summary Judgment entered in this case is void for lack of jurisdiction because he paid the filing fee and demanded a trial by jury. Plaintiff previously raised this same issue and it was denied by Judge Santiago Campos in his Memorandum Opinion and Order dated February 17, 1999 [Doc. No. 57] and his Memorandum


1 On April 30, 1998, Judge Campos entered a Memorandum, Opinion and Order holding, sua sponte, that the Defendant is the National Security Agency, and not Lt. Gen. Kenneth A. Minihan and further captions for the case should reflect this change.

2 As a preliminary note, Plaintiff Morales was dismissed as a plaintiff from this action by order of the Court dated April 30, 1998, docket no. 42 .

3 On August 18, 2004, United States District Judge William F. Downes entered an Order Granting Injunctive Relief in United States District Court for the District of New Mexico Civ. No. 01-634 WFD/DJS. The Order enjoined Plaintiff from filing any further actions without complying with the procedures set out by the Court.


Opinion and Orderdated December 23, 1999 [Doc. No. 77] and, as such, constitutes law of the case. Plaintiffs’ Motion should be denied.
STATEMENT OF THE CASE

This lawsuit was filed on February 28, 1997 under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, relating to a request for documents which William H. Payne made upon the National Security Agency. As reflected on the Civil Docket Sheet for this case, the following pleadings are relevant to the instant motion:

1. Plaintiffs filed their first motion for summary judgment on June 4, 1997 [Doc. No. 11] to which Defendant responded on June 19, 1997 [Doc. No. 17] and Plaintiffs replied on July 8, 1997 [Doc. No. 20].

2. Defendant filed its motion for partial dismissal and for summary judgment on October 3, 1997 [Doc. No. 23], to which Plaintiffs responded on October 31, 1997 [Doc. No. 30]. Defendant filed its reply on November 14, 1997 [Doc. No. 32] and Plaintiffs filed an answer (surreply) on November 28, 1997 [Doc. No. 33].

3. Plaintiffs filed their second motion for summary judgment on December 22, 1997 [Doc. No. 34], to which Defendant responded on January 5, 1998 [Doc. No. 35] and Plaintiffs replied on January 20, 1998 [Doc. No. 36].

4. On April 30, 1998, Judge Campos entered a Memorandum Opinion and Order denying as moot Plaintiffs’ motion for summary judgment, denying Defendant’s motion for partial dismissal and staying Defendant’s motion for summary judgment pending an in camera review of a declaration to be provided to the Court4, and denying without prejudice Plaintiffs’ motion for summary judgment [Doc. No. 42].

5. Plaintiffs filed a motion to amend the memorandum opinion and order [Doc. No. 43], which was denied by the Court on May 21, 1998 [Doc. No. 44.] On May 28, 1998, Plaintiff Payne filed another motion to amend the Memorandum Opinion and Order which was denied on February 17, 1999 [Doc. No. 57.]

6. Plaintiffs filed a Notice of Interlocutory Appeal on June 9, 1998 [Doc. Nos 46, 47]. The appeal was dismissed by the United States Court of Appeals for the Tenth Circuit for lack of jurisdiction on December 17, 1998 [Doc. No. 52].

7. On October 27, 1999, Judge Campos entered a Memorandum Opinion and Order granting Defendant’s motion for summary judgment, dismissing the case, [Doc. No. 72], and entered Summary Judgment [Doc. No. 73].

8. On November 9, 1999, Plaintiff filed a motion to alter and amend the Memorandum Opinion and Order [Doc. No. 74], to which Defendant filed a response [Doc. No. 75], and Plaintiff filed a reply [Doc. No. 76].

9. On December 23, 1999, Judge Campos entered a Memorandum Opinion and Order denying the motion to alter and amend [Doc. No. 77].

10. Plaintiff filed a Notice of Appeal with the United States Court of Appeals for the Tenth Circuit on January 3, 2000. [Doc. No. 78]. The Court of Appeals affirmed the decision of the District Court on December 13, 2000 [Doc. No. 80].


4 The FOIA specifically authorizes in camera examination of documents. 5 U.S.C. § 552(a)(4)(B) (2000); S. Conf. Rep. No. 93-1200 at 9 (1974).


ARGUMENT

Plaintiff William H. Payne asserts that because he paid a filing fee of $150 on February 28, 1997 and requested a jury trial, Judge Santiago Campos lacked jurisdiction to grant Defendant’s motion for summary judgment. First, there is no right to a jury trial under the Freedom of Information Act. Second, the granting of summary judgment was entirely appropriate in this case. Third, Plaintiff has previously made this same assertion in this Court, i.e., that he has a right to a jury trial under the Seventh Amendment of the United States Constitution and under Federal Rule of Civil Procedure 38 [Doc. Nos. 44, 45, 76]. This argument was specifically addressed and rejected by this Court [Doc. No. 57]. Plaintiff argued the right to a jury trial again in his reply [Doc. No. 76] which the Court again rejected in its Memorandum Opinion and Order entered on December 23, 1999 [Doc. No. 77]. Under the law of the case, this issue should not be relitigated.
I. No Right To Jury Trial In FOIA Action

Plaintiff contends that because he paid a filing fee of $150 and demanded a jury trial in this lawsuit, Judge Campos lacked jurisdiction to dismiss the lawsuit. Plaintiff has previously raised a similar, if not identical argument in this case. On May 21, 1998, Plaintiff Payne filed a motion to amend the Memorandum Opinion and Order entered April 30, 1998 [Doc. No. 45]. In his motion, Plaintiff asserted that he had a right to a jury trial under the Seventh Amendment of the United States Constitution and under Federal Rule of Civil Procedure 38 and alleged that the Court violated Plaintiff’s rights to a jury trial. In his Memorandum Opinion and Order dated February 17, 1999 [Doc. No. 57] at page 5, Judge Campos addressed this issue.

As Judge Campos succinctly stated:

There is no right to a jury trial in a statutory cause of action against the federal government unless the relevant statute explicitly and unambiguously provides such a right. See Lehman v. Nakshian, 453 U.S. 156, 16-62, 168 (1981); see also Johnson v. Hospital of Med. College of Pa., 826 F. Supp. 942, 942, 945 (E.D. Pa. 1993). Congress did not explicitly provide for right to jury trial in FOIA. See 5 U.S.C. § 552.

While summary judgment is the procedural vehicle by which nearly all FOIA cases are resolved, in the event of a trial on a contested issue of fact, it will be decided by a judge alone because the FOIA does not provide for a jury trial. Office of Information and Privacy, U. S. Department of Justice, Freedom of Information Act & Privacy Act Overview, 804 (May 2004 ed.). Thus, Plaintiff was not entitled to a jury trial in this action.
II. Summary Judgment Was Appropriate

As Judge Campos held, there is no Seventh Amendment jury trial right where no genuine issue of material fact exists because the court may, without violating Seventh Amendment rights, grant summary judgment pursuant to Fed. R. Civ. P. 56. Memorandum Opinion and Order at 6, [Doc. No. 57], citing Shore v. Parklane Hosiery Co., Inc., 565 F.2d 815, 819 (2d Cir. 1977) (citation omitted), aff’d, Parklane Hosiery Co. Inc. v. Shore, 439 U. S. 322 (1979). See Murphy v. Derwinski, 990 F.2d 540, 544 (10th Cir. 1993)(citing Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U. S. 317, 322-23 (1986)). It is beyond question that a district court may grant summary judgment where the material facts concerning a claim cannot reasonably be disputed. Even though this technically prevents the parties from having a jury rule upon those facts, there is no need to go forward with a jury trial, (assuming a jury trial is even permitted under the appropriate statute, which, as stated supra, is not permitted under FOIA), when the pertinent facts are obvious and indisputable from the record; the only remaining truly debatable matters are legal questions that a court is competent to address. Garvie v. City of Fort Walton Beach, Florida, 366 F.3d 1186 (11th Cir. 2004).

Further, a Seventh Amendment right to trial is not violated because no such right exists if a party fails to make a Rule 56-required demonstration that some dispute of material fact exists which a trial could resolve. Conboy v. Edward D. Jones Co., 2005 WL 1515479 (5th Cir. 2005). Without a genuine issue for trial, there can be no demand for a jury trial. See Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 250 (1986)(summary judgment inquiry is threshold determination “whether there is the need for a trial.”); DeYoung v. Lorentz, No. 95-3153, 69 F.3d 547, 1995 WL 662087 at *2 n.5 (10th Cir. Nov. 9, 1995) (unpublished disposition) (“[A] properly applied summary judgment procedure does not violate the Seventh Amendment.”) Plaintiff in this case did not establish that a dispute of material fact existed nor was there a genuine issue for trial.

Finally, as Judge Campos noted, and the record clearly reflects, “Plaintiff cannot complain about the possible resolution of this case on Defendant’s motion for summary judgment when [Plaintiff] himself has filed two motions for summary judgment in this case.” Memorandum Opinion and Order, at 7 [Doc. No. 57]. Judge Campos’ holding in 1999 that the Seventh Amendment and Fed. R. Civ. P. 38 do not apply to Plaintiff’s lawsuit and Plaintiff has no right to a jury trial is an appropriate finding and should not be set aside. Based upon the findings of this Court, the granting of summary judgment was entirely appropriate.

III. Law Of The Case

“‘[T]he law of the case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’” McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1034 (10th Cir. 2000) (quoting United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991)). “Law of the case rules have developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.” Kennedy v. Lubar, 273 F.3d 1293, 1298 (10th Cir. 2001) (quoting 18 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction § 4478, at 788 (1981)).

Although Plaintiff has requested that the judgment in Civ. No. 97-266 SC/DJS be voided as opposed to reconsidered, law of the case would still apply. Because this Court has already issued decisions determining that the Seventh Amendment and Fed. R. Civ. P. 38 did not apply to Plaintiff’s lawsuit and that Plaintiff had no right to a jury trial, [Doc. Nos. 57, 77], the doctrine of law of the case governs. The Tenth Circuit has “routinely recognized that the law of the case doctrine is ‘discretionary, not mandatory,’ and that the rule ‘merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit on their power.’” Stifel, Nicolaus & co., v. Woolsey & Co., 81 F.3d 1540, 1544 (10th Cir. 1996) (quoting Messenger v. Anderson, 225 U.S. 436, 444 (1912).

However, even though the doctrine of law of the case is discretionary in nature and not absolute, there are limitations on when a Court should depart from the doctrine. The Tenth Circuit has determined that there are “three exceptionally narrow circumstances” when it will depart from the law of the case doctrine which are: “(1) when the evidence in a subsequent trial is substantially different; (2) when controlling authority has subsequently made a contrary decision of the law applicable to such issues; or (3) when the decision was clearly erroneous and would work a manifest injustice.” United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998), cert. denied, 525 U.S. 905 (1998). In this case, none of the three narrow exceptions apply. As to the first exception, there has not been a trial on this matter wherein new evidence would alter the Court’s decision. The second exception is equally inapplicable in that there has not been any new case law on the matter. Regarding the third exception, there is absolutely no indication that the Court’s decision was “clearly erroneous and would work a manifest injustice” nor that the Court lacked jurisdiction in the first place.

“[T]here is a natural and healthy reluctance not to reconsider the decision (or, in this case, void the decision) unless powerful reasons are given for doing so. Otherwise parties would have an incentive constantly to pester judges with requests for reconsideration.” Johnson v. Burken, 930 F.2d 1202, 1207 (7th Cir. 1991). The fact that Plaintiff is not happy with the results of this case nearly seven years after the United States Court of Appeals for the Tenth Circuit affirmed the District Court’s decision does not constitute “manifest injustice,” does not establish that this Court lacked jurisdiction to render a decision and certainly does not warrant reopening this case. Thus, this Court’s holding pertaining to Plaintiff’s right to a jury trial must stand and Plaintiff’s motion to void the judgment entered herein must fail.

CONCLUSION

This Court had jurisdiction over the above-captioned case and summary judgment was appropriately entered. For the reasons stated above, Plaintiffs’ Motion should be denied.

Respectfully submitted,

LARRY GOMEZ Acting United States Attorney

Electronically filed 5/29/07

JAN ELIZABETH MITCHELL
Assistant U. S. Attorney
P.O. Box 607
Albuquerque, NM 87103
505.346.7274
jan.mitchell@usdoj.gov

I HEREBY CERTIFY that on May 29, 2007, I filed the foregoing pleading electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:

AND I FURTHER CERTIFY that on such date I served the foregoing pleading on the following non-EM/ECF Participant via first class mail, postage prepaid addressed as follows:

William H. Payne
13015 Calle de Sandias, NE
Albuquerque, NM 87111 /s
JAN ELIZABETH MITCHELL

U.S. District Court
District of New Mexico - Version 3.0 (Santa Fe) CIVIL DOCKET FOR CASE #: 6:97-cv-00266-SEC-DJS

Payne, et al v. Minihan, et al
Assigned to: Senior Judge Santiago E. Campos
Referred to: Magistrate Judge Don J. Svet
Demand: $0
Case in other court: 00-02019
98-02156
98-02157
Cause: 05:552 Freedom of Information Act
Date Filed: 02/28/1997
Date Terminated: 10/27/1999
Jury Demand: Plaintiff
Nature of Suit: 895 Freedom of Information Act
Jurisdiction: U.S. Government Defendant
Plaintiff
William H Payne represented by William H Payne
13015 Calle de Sandias, NE
Albuquerque, NM 87111
(505) 292-7037
PRO SE

Plaintiff
Arthur R Morales
TERMINATED: 04/30/1998 represented by Arthur R Morales
1734 Soplo Rd SE
Albuquerque, NM 87123-4485
PRO SE


V.

Defendant
Lieutenant General Kenneth A Minihan
USAF Director
TERMINATED: 04/30/1998 represented by Jan Elizabeth Mitchell
United States Attorneys Office
Civil Division
P.O. Box 607
Albuquerque, NM 87102
505 346-7274
Fax: 505 346-7205
Email: jan.mitchell@usdoj.gov
TERMINATED: 04/30/1998
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Defendant
National Security Agency represented by Jan Elizabeth Mitchell
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#dockettext

Date Filed # Docket Text

02/28/1997 1 COMPLAINT (referred to Magistrate Don J. Svet) (pz) (Entered: 03/04/1997)

03/04/1997 FILING FEE PAID: on 2/28/97 in the amount of $150.00, receipt #: 100 105110. (pz) (Entered: 03/04/1997)

03/17/1997 2 DEMAND for jury trial by plaintiffs (dmw) (Entered: 03/18/1997)

04/01/1997 3 CONFIRMATION (MOTION) for Extension by plaintiff William H Payne to respond to complaint until plaintiff has returned from business trip on 4/7/97 & notification of business travel (dmw) (Entered: 04/01/1997)

04/01/1997 4 ORDER by Senior Judge Santiago E. Campos granting deft's request (motion) for extension of time to answer until 4/4/97 [3-1] (cc: all counsel) (mk) (Entered: 04/01/1997)

04/04/1997 5 ANSWER by defendant [1-1] (dmw) (Entered: 04/07/1997)

04/24/1997 6 REPLY & affidavit by plaintiffs to answer to complaint [5-1] (dmw) (Entered: 04/25/1997)

05/02/1997 7 INITIAL SCHEDULING ORDER by Magistrate Don J. Svet ; parties to meet and confer by 5/14/97; provisional discovery plan is due 5/23/97; IPTR submitted by 5/23/97; Rule 16 scheduling conference is set for 6/5/97 at 10:30 am on 6/5/97 (cc: all counsel) (seal) (Entered: 05/02/1997)

05/23/1997 8 NOTICE by plaintiffs (re initial pretrial report) (dmw) (Entered: 05/23/1997)

05/23/1997 9 MOTION by plaintiff for order to accept discovery plan (dmw) (Entered: 05/23/1997)

06/03/1997 10 MINUTE ORDER: striking Initial Pre-Trial Report filed 5/23/97 for failure to comply with scheduling order filed by Magistrate Svet [8-1] CLK-mm (cc: all counsel) (msm) (Entered: 06/03/1997)

06/04/1997 11 MOTION by plaintiffs for summary judgment (dmw) (Entered: 06/04/1997)

06/06/1997 12 CLERK'S MINUTES: before Magistrate Don J. Svet ; Rule 16 scheduling conference was held (pz) (Entered: 06/06/1997)

06/09/1997 13 MOTION by plaintiff to accept discovery plan of plaintiffs as an unopposed motion before the Court (dmw) (Entered: 06/09/1997)

06/09/1997 14 RESPONSE by defendants to motion to accept discovery plan of plaintiffs as an unopposed motion before the Court [13-1] (dmw) (Entered: 06/10/1997)

06/11/1997 15 ORDER by Magistrate Don J. Svet ; Discovery cutoff 9/3/97 ; Motion Filing cutoff 9/23/97; Pretrial order ddl 11/18/97 FURTHER ORDERED that discovery in this matter shall only be undertaken upon obtaining Court permission; See Order for specifics (cc: all counsel) (pz) Modified on 06/13/1997 (Entered: 06/11/1997)

06/13/1997 16 REPLY by plaintiffs to response to motion to accept discovery plan of plaintiffs as an unopposed motion before the Court [13-1] (dmw) (Entered: 06/13/1997)

06/19/1997 17 RESPONSE by defendant to motion for summary judgment [11-1] (dmw) (Entered: 06/19/1997)

06/24/1997 18 MOTION by pltfs to remove (strike) docket sheet entry 14 and associated response (kd) (Entered: 06/25/1997)

06/24/1997 19 MOTION by pltfs for order to restore pltfs' civil rights (kd) (Entered: 06/25/1997)

07/08/1997 20 REPLY by pltfs to response to mtn for summary judgment [11-1] (kd) (Entered: 07/08/1997)

09/23/1997 21 MOTION by defts to dismiss pltf Arthur R. Morales (kd) (Entered: 09/23/1997)

09/23/1997 22 MEMORANDUM by defts in support of mtn to dismiss pltf Arthur R. Morales [21-1] (kd) (Entered: 09/23/1997)

10/03/1997 23 MOTION by defendant for partial dismissal , and for summary judgment (dmw) Modified on 10/03/1997 (Entered: 10/03/1997)

10/06/1997 24 RESPONSE by plaintiffs to motion to dismiss pltf Arthur R. Morales [21-1] (dmw) (Entered: 10/06/1997)

10/07/1997 25 ORDER by Magistrate Don J. Svet denying as moot plaintiffs' motion to accept discovery plan of plaintiffs as an unopposed motion before the Court [13-1] & for order to accept discovery plan [9-1] (cc: all counsel) (dmw) (Entered: 10/07/1997)

10/15/1997 26 MOTION for Extension by plaintiffs to respond to motion for partial dismissal [23-1] & for summary judgment until 10/31/97 & resetting time limits for discovery [23-2] (dmw) (Entered: 10/15/1997)

10/15/1997 27 REPLY by deft to response to memorandum in support of motion to dismiss pltf Arthur R. Morales [21-1] (dmw) (Entered: 10/16/1997)

10/23/1997 28 MOTION & memorandum by defendant to strike any and all of plaintiffs' first set of requests for admissions to various employees of the National Security Agency & to various employees of Sandia National Laboratory (dmw) (Entered: 10/23/1997)

10/31/1997 29 MOTION DENY (RESPONSE) by plaintiffs to motion for partial dismissal [23-1] and for summary judgment [23-2] (dmw) (Entered: 10/31/1997)

10/31/1997 30 RESPONSE by plaintiffs to memorandum in support of motion for partial dismissal [23-1] and for summary judgment [23-2] (dmw) (Entered: 10/31/1997)

11/05/1997 31 RESPONSE by plaintiffs to motion to strike any and all of plaintiffs' first set of requests for admissions to various employees of the National Security Agency & to various employees of Sandia National Laboratory [28-1] (dmw) (Entered: 11/06/1997)

11/14/1997 32 REPLY by defendant to response to motion for partial dismissal [23-1] & for summary judgment [23-2] (dmw) (Entered: 11/17/1997)

11/28/1997 33 ANSWER (SURREPLY) by plaintiffs to cross-claim reply to response to motion for partial dismissal [23-1] & for summary judgment [23-2] (dmw) (Entered: 11/28/1997)

12/22/1997 34 MOTION by plaintiffs for summary judgment based on evidence from admissions (dmw) (Entered: 12/22/1997)

01/05/1998 35 RESPONSE by defendant to motion for summary judgment based on evidence from admissions [34-1] (dmw) Modified on 03/13/1998 (Entered: 01/06/1998)

01/20/1998 36 REPLY by plaintiffs to response to motion for summary judgment based on evidence from admissions [34-1] (dmw) (Entered: 01/20/1998)

01/28/1998 37 ORDER by Magistrate Don J. Svet granting defendant's motion to strike any and all of plaintiffs' first set of requests for admissions to various employees of the National Security Agency & to various employees of Sandia National Laboratory (see order for further specifics re sanctions & communication) [28-1] (cc: all counsel, electronically) (dmw) (Entered: 01/28/1998)

02/09/1998 38 AFFIDAVIT of attorney fees by Jan Elizabeth Mitchell in accordance with court order [37-1] (dmw) Modified on 02/12/1998 (Entered: 02/10/1998)

02/10/1998 39 ORDER by Magistrate Don J. Svet denying as moot plaintiffs' motion to remove docket sheet entry 14 and associated response [18-1] (cc: all counsel, electronically) (dmw) (Entered: 02/11/1998)

02/19/1998 40 RESPONSE by plaintiffs to orders & affidavit of attorney fees (dmw) (Entered: 02/19/1998)

03/10/1998 41 ORDER sua sponte by Magistrate Don J. Svet that plaintiffs shall pay defendant $625.00 in sanctions within 20 days of entry of this order (cc: all counsel, electronically) (dmw) (Entered: 03/10/1998)

04/30/1998 42 MEMORANDUM, OPINION, AND ORDER: by Senior Judge Santiago E. Campos; sua sponte the deft is deemed by the Court to be NSA, and not Lt Gen Kenneth A Minihan, future captions for this case should reflect this change; and FURTHER denying as moot pltfs' motion for summary judgment based on evidence from admissions [34-1]; denying deft Minihan's motion for partial dismissal [23-1], and staying deft Minihan's motion for summary judgment pending an in camera ex parte declaration consistent herewith provided by deft to the Court within 60 days of the date of this opinion [23-2], granting deft Minihan's motion to dismiss pltf Arthur R. Morales [21-1]; and denying without prejudice pltfs' motion for summary judgment [11-1]; as further described herein (cc: all counsel) (pz) (Entered: 04/30/1998)

05/08/1998 43 MOTION by plaintiffs to amend memorandum opinion & order filed 4/30/98 (dmw) (Entered: 05/11/1998)

05/21/1998 44 MEMORANDUM, OPINION, AND ORDER: by Senior Judge Santiago E. Campos denying pltf's motion to amend memorandum opinion & order filed 4/30/98 [43-1] (cc: all counsel, electronically) (dmw) (Entered: 05/22/1998)

05/28/1998 45 MOTION & objection to in camera ex parte meeting by plaintiff to amend memorandum opinion & order (dmw) (Entered: 05/28/1998)

06/09/1998 46 NOTICE OF INTERLOCUTORY APPEAL by plaintiff William H Payne from Dist. Court decision [44-1]; Fees paid - Distribution as required (cc: all counsel) (pz) Modified on 06/10/1998 (Entered: 06/10/1998)

06/09/1998 RECEIVED re appeal [46-1] fee in amount of $105.00 (Receipt # 100 110699) (notice sent to USCA) (pz) Modified on 06/10/1998 (Entered: 06/10/1998)

06/10/1998 LETTER to USCA transmitting preliminary record on appeal (pz) (Entered: 06/10/1998)

06/10/1998 47 NOTICE OF INTERLOCUTORY APPEAL by pltfs William H Payne and Arthur R Morales from Dist. Court decision [42-1] ; Fees paid - Distribution required. (cc: all counsel) (pz) (Entered: 06/10/1998)

06/10/1998 RECEIVED re appeal of pltfs Payne and Morales [47-1] fee in amount of $105.00 (Receipt #100 110700) (notice sent to USCA) (pz) (Entered: 06/10/1998)

06/10/1998 LETTER to USCA transmitting preliminary record on appeal of pltfs Payne and Morales (pz) (Entered: 06/10/1998)

06/12/1998 48 MOTION & memorandum by defendant to tax fees (dmw) (Entered: 06/15/1998)

06/12/1998 49 BILL OF COSTS submitted by defendant in the amount of $625.00 (dmw) (Entered: 06/15/1998)

06/17/1998 ACKNOWLEDGEMENT of receipt of preliminary record in by USCA on 6/12/98 re appeal of Payne, et al vs Minihan - USCA Number: 98-2157 (pz) (Entered: 06/17/1998)

06/17/1998 ACKNOWLEDGEMENT of receipt of preliminary record in by USCA on 6/12/98 re appeal Payne vs NSA - USCA Number: 98-2156 (pz) (Entered: 06/17/1998)

06/22/1998 50 MOTION & memorandum by defendant to remand pltf's first FOIA request with instructions , and to stay proceedings (dmw) (Entered: 06/22/1998)

06/30/1998 51 RESPONSE by plaintiff to motion to remand first FOIA request with instructions [50-1] & to stay proceedings [50-2] (dmw) (Entered: 06/30/1998)

06/30/1998 TAXED COSTS for defendant in the amount of $ 625.00 against plaintiff (cc: all counsel) (mjr) (Entered: 06/30/1998)

06/30/1998 ABSTRACT OF JUDGMENT DOCKET issued to defendant in the amount of $625.00 (mjr) (Entered: 06/30/1998)

12/17/1998 52 COPY of USCA Order: dismissing the appeals for lack of appellate jurisdiction [47-1] and [46-1] (pz) (Entered: 12/17/1998)

01/06/1999 53 APPLICATION by USA for Writ of Garnishment in the amount of $625.00 (former employee) (Entered: 01/06/1999)

01/06/1999 54 NOTICE (Instructions) to Sandia Corporation, Garnishee regarding the Writ of Garnishment (former employee) (Entered: 01/06/1999)

01/06/1999 WRIT of Garnishment issued to Sandia Corporation in the amount of $625.00 (former employee) (Entered: 01/06/1999)

01/06/1999 55 CLERK'S NOTICE issued to debtor of post-judgment garnishment and instructions; CLERK/jg (former employee) (Entered: 01/06/1999)

02/02/1999 56 CERTIFICATE by defendant of service of documents on judgment debtor on 2/2/99 (dmw) (Entered: 02/02/1999)

02/17/1999 57 MEMORANDUM, OPINION, AND ORDER: by Senior Judge Santiago E. Campos denying motion to amend the Memorandum Opinion & Order filed 5/28/98 [45-1] by William H Payne (cc: all counsel) (mjr) Modified on 02/19/1999 (Entered: 02/17/1999)

02/17/1999 58 MEMORANDUM, OPINION, AND ORDER: by Senior Judge Santiago E. Campos; the Court's decision on deft's motion to remand of pltf's first FOIA request [50-1] and request for stay of judicial proceedings [50-2] filed on 6/22/98 is deferred; deft shall have fifteen (15) days from the date of this Opinion to submit to the Court a detailed affidavit(s) and any other documents or supporting evidence establishing the reasonableness of the estimated search fee charged pltf for his first FOIA request and the estimated search time underlying that fee; within ten (10) days of deft's submission pltf may respond with detailed affidavits and/or other documentary or supporting evidence; within ten (10) days of pltf's submission deft may reply with any further documentary or factually supportive evidence (cc: all counsel) (mjr) (Entered: 02/17/1999)

02/22/1999 59 USM RETURN OF SERVICE executed upon Sandia Corporation on 2/17/99 (sl) (Entered: 02/22/1999)

02/23/1999 60 ANSWER of garnishee (dmw) (Entered: 02/23/1999)

03/03/1999 61 NOTICE by defendant of compliance with memorandum opinion and order dated 2/17/99 (dmw) (Entered: 03/04/1999)

03/11/1999 LETTER from Arthur R Morales addressed to John J. Kelly requesting hearing on writ of garnishment re sanctions (msm) Modified on 03/11/1999 (Entered: 03/11/1999)

03/12/1999 62 AFFIDAVIT of William H. Payne in response to order [58-1] (dmw) (Entered: 03/12/1999)

03/24/1999 63 AFFIDAVIT of William H. Payne regarding order [58-1] (mjr) (Entered: 03/29/1999)

03/26/1999 64 REPLY by defendant re affidavit in reponse to Memorandum Opinion and Order [58-1] (mjr) (Entered: 03/29/1999)

03/30/1999 65 MEMORANDUM, OPINION AND ORDER: by Senior Judge Santiago E. Campos partially granting motion to remand pltf's first FOIA to NSA as to its first request [50-1], and denying as moot the motion to stay proceedings [50-2] (cc: all counsel) (former employee) (Entered: 03/30/1999)

03/30/1999 66 ORDER of partial remand to the National Security Agency for processing of Pltf's first FOIA request by Senior Judge Santiago E. Campos re [50-1] (cc: all counsel) (former employee) (Entered: 03/30/1999)

04/20/1999 67 ORDER OF GARNISHMENT by Magistrate Judge Don J. Svet (cc: all counsel) (dmw) (Entered: 04/20/1999)

06/24/1999 68 NOTICE by USA of withdrawal of garnishment proceedings (jrm) (Entered: 06/28/1999)

06/24/1999 69 SATISFACTION OF JUDGMENT as to defendant (jrm) (Entered: 06/28/1999)

07/20/1999 70 NOTICE of hearing setting ex-parte in-camera hearing on 9/20/99 at 1:30 pm before Judge Santiago E Campos in Santa Fe, NM (cc: all counsel, electronically) (dmw) (Entered: 07/20/1999)

09/13/1999 71 MINUTE ORDER: resetting ex parte in-camera hearing on 10/12/99 at 9:30 am before Judge Santiago E Campos [70-1] (cc: all counsel, electronically) (dmw) (Entered: 09/13/1999)

10/27/1999 72 MEMORANDUM, OPINION, AND ORDER: by Senior Judge Santiago E. Campos granting motion for summary judgment [23-2] dismissing case (cc: all counsel) (msm) (Entered: 10/27/1999)

10/27/1999 73 SUMMARY JUDGMENT: by Senior Judge Santiago E. Campos (cc: all counsel) (msm) (Entered: 10/27/1999)

11/09/1999 74 MOTION by plaintiff to alter & amend memorandum opinion & order (dmw) (Entered: 11/10/1999)

11/19/1999 75 OPPOSITION (RESPONSE) by defendant to motion to alter & amend memorandum opinion & order [74-1] (dmw) (Entered: 11/19/1999)

12/01/1999 76 REPLY by plaintiff to response in opposition to motion to alter & amend memorandum opinion & order [74-1] (dmw) (Entered: 12/01/1999)

12/23/1999 77 MEMORANDUM, OPINION, AND ORDER: by Senior Judge Santiago E. Campos denying motion to alter & amend memorandum opinion & order [74-1] by William H Payne (cc: all counsel*) (dmw) (Entered: 12/27/1999)

01/03/2000 78 NOTICE OF APPEAL by pltf William H Payne from Dist. Court decisions [77-1], [73-1], [72-2]; Fees paid - Distribution as required. (cc: all counsel) (pz) (Entered: 01/05/2000)

01/05/2000 RECEIVED re appeal [78-1] fee in amount of $ 105.00 (Receipt # 100 117097) (notice sent to USCA) (pz) (Entered: 01/05/2000)

01/10/2000 LETTER transmitting PROA/ROA to USCA (former employee) (Entered: 01/10/2000)

01/10/2000 PRELIMINARY RECORD on appeal mailed to USCA in one (1) Volume 1 (former employee) (Entered: 01/10/2000)

01/11/2000 79 NOTICE of correction by plaintiff (dmw) (Entered: 01/11/2000)

01/18/2000 ACKNOWLEDGEMENT of receipt of preliminary record/record on appeal by USCA on 1/14/00 - USCA Number: 00-2019 (former employee) (Entered: 01/18/2000)

12/13/2000 80 COPY of judgment from USCA affirming the decision of the District Court [78-1] (mjr) (Entered: 12/13/2000)

05/16/2007 81 MOTION to Set Aside Judgment by William H Payne, Arthur R Morales. (pz) (Entered: 05/18/2007)

05/16/2007 82 MANDATORY JUDICIAL NOTICE by William H Payne and Arthur R Morales (pz) (Entered: 05/18/2007)

05/29/2007 83 RESPONSE in Opposition re 81 MOTION to Set Aside Judgment filed by National Security Agency. (Mitchell, Jan) (Entered: 05/29/2007)

PACER Service Center

Transaction Receipt

05/30/2007 15:12:54

PACER Login: bp0858 Client Code:

Description: Docket Report Search Criteria: 6:97-cv-00266-SEC-DJS

Billable Pages: 5 Cost: 0.40

From PACER Wednesday May 30, 2007



mitchell response in pdf.
Friday May 25, 2007 14:00

http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#mitchell



by email

Jan Michell
Assistant US attorney
jan.mitchell@usdoj.gov,

Dear Ms Mitchell

Don't even think of trying to file your response due by 20 days from FILED at Santa Fe, NM on May 16,2007 in federal court in Albuquerque.

This would be a transparent bad idea.

As you may realize judges James A Parker and William F Downes have prevented Morales and Payne from filing anything in Albuquerque federal court.

This denial of civil rights earned Parker and Downes a criminal complaint in Albuquerque Metropolitan court.

Recall that 97-0266 was appealed at the Tenth Circuit: See docket entry 78, single entry on 01/05/00 and three entries at 01/10/00. So the Tenth has jurisdiction as well as federal court in Santa Fe.

We are prepared to immediately file to vacate judgment at the Tenth Circuit court of appeals

Payne v. National Security Agency
2000 10CIR 1264
232 F.3d 902
Case Number: 00-2019
Decided: 10/19/2000
10th Circuit Court of Appeals

Before TACHA, EBEL, and LUCERO, Circuit Judges.

as well as in Santa Fe federal court under old actions if we don't promptly settle these unfortunate matters.

Metro court judge Julie Altwies issued another voidable judment on 5/22/07 in attempt to obstruct proper arraginment of your colleage Michael H Hoses.

We believe that Altwies statement is either false or based on, as a lawyer phrased Bugs Bunny law.

We are in the the process of investigating possible inclusion of false statements in the Metropolitan court judicial benchbook.

If we are unable to vacate our NSA FOIA visibility lawsuit final judment at either federal court in Santa Fe or at the Tenth Circuit, then we will be forced to file in another court of law.


US assistant attorneys Dow and Hoses have establish pattern and practice of violating our civil right in violation of 18 USC § 241 and §242. We will pursue these criminal violation if we do not settle.

We will delay filing our MOTION TO VACATE JUDGMENT FOR LACK OF JURISDICTION until 15:30 on Tuesday May 29, 2007 in hopes were hear postively from you about settlement before that time.

After that time we must deal with obtaining the documents identified in the recently declassified Gilbert letter from the FBI, NSA, Sandia labs, DOE and DOJ.

We feel that it is best to settlement matters now before we have to proceed to our next legal steps.

Morales and Payne


Distribution

USANM.ECFCivil@usdoj.gov;
craig.larson@usdoj.gov;
djscmecf@nmcourt.fed.us;
mvproposedtext@nmcourt.fed.us;

jnakamura@metrocourt.state.nm.us;
kbrandenburg@da2nd.state.nm.us;
martinchavez@cabq.gov;
mfleisher@aol.com;
Dave.Contarino@state.nm.us;

amorales58@comcast.net ; Jean.Kornblut@usdoj.gov ; Jim.Kovakas@usdoj.gov ; the.secretary@hq.doe.gov ; julia.eichhorst@ic.fbi.gov ; iscap@nara.gov ; bill.leonard@nara.gov ; AskDOJ@usdoj.gov; william.schwartz@hq.doe.gov;tapodaca@doeal.gov; foiofficer@doeal.gov; foialo@nsa.gov

Sensenbrenner@mail.house.gov
arlen_specter@specter.senate.gov
DRAFT
Friday May 25, 2007 10:37

http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#tenthvoid

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

William H. Payne                                                  )
Arthur R. Morales                                                )
                                                                                )
Appellant Plaintiffs,                                               )
                                                                                )
 v                                                                             ) 00-2019
                                                                                )
Lieutenant General Kenneth A. Minihan, USAF )
Director, National Security Agency                      )
National Security Agency                                      )
                                                                                 )
Appellee Defendant                                                )  Federal Rule of Civ. P. 60(b)(4)

MOTION TO VACATE JUDGMENT FOR LACK OF JURISDICTION

I. INTRODUCTION

Plaintiffs Morales and Payne sued the National Security Agency under the FOIA on March 4, 1997.

Subject of the lawsuit is:

What information was provided to Saddam Hussein exactly? Answers to this question are currently being sought in a lawsuit against NSA in New Mexico, which has asked to see "all Iranian messages and translations between January 1, 1980 and June 10, 1996". [7]

II. BASIS OF MOTION

1 Docket entry - , just above docket entry 1, shows that plaintiffs paid filing fee of $150 on 2/28/97.

2 Docket entry 2 shows DEMAND for jury trial filed on March 18, 1997.

3 Docket entry 73 shows late Senior Judge Santiago E Campos granting motion for summary judgment dismissing case.

4 Campos lacked jurisdiction to dismiss DEMANDed jury trial lawsuit guaranteed inviolate by US Constitution.

5 Payne v. National Security Agency, 2000 10CIR 1264,232 F.3d 902, Case Number: 00-2019
was Decided: 10/19/2000 10th Circuit Court of Appeals before TACHA, EBEL, and LUCERO, Circuit Judges.

III. ISSUES

6 Right of jury trial is guaranteed inviolate by 7thAmendment to US Constitution and 28 USC Rule 38. Therefore Campos lacked jurisdiction to dismiss paid for jury trial lawsuit.

IV RELIEF SOUGHT

7 Return filed stamped copy of this Motion with 10 working days.

8 Sign attached ORDER rescinding Campos 10/27/99 [docket entry 72] which orders settlement or trial by jury within 90 days of entry.

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

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION was mailed to judges TACHA, EBEL, and LUCERO United States Court of Appeals for the Tenth Circuit The Byron White U.S. Court House 1823 Stout Street, Denver, CO 80257, Jan Elizabeth Mitchell, Assistant US Attorney, 201 3rd ST NW, ABQ, NM 87102 and foialo@nsa.gov by email this Tuesday May 29, 2007.
DRAFT
Monday May 28, 2007 15:34

http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#tenthvoid

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

William H. Payne                                                  )
Arthur R. Morales                                                )
                                                                                )
Appellant Plaintiffs,                                               )
                                                                                )
 v                                                                             ) 00-2019
                                                                                )
Lieutenant General Kenneth A. Minihan, USAF )
Director, National Security Agency                      )
National Security Agency                                      )
                                                                                 )
Appellee Defendant                                                )  Federal Rule of Civ. P. 60(b)(4)



ORDER VACATING Judge Santiago Campos'
10/27/99 MEMORANDUM, OPINION, AND ORDER AND TENTH CIRCUIT RULING ON 00-2019

1 Judge Santiago Campos' 10/27/99 MEMORANDUM, OPINION, AND ORDER is void for lack of jurisdiction to dismiss paid for jury trial lawsuit.

Right of jury trial is guaranteed inviolate by 7thAmendment to US Constitution and 28 USC Rule 38.

2 Void Tenth Circuit ruling on 00-2019 Decided: 10/19/2000 for reason that judges TACHA, EBEL, and LUCERO cannot affirm Santiago Campos' 10/27/99 MEMORANDUM, OPINION, AND ORDER which violates constitutional right to trial by jury.

3 CIV NO 97 0266 is to be settled or proceed to trial by jury within 90 days from entry of this order.



                                                                             _________________________
                                                                             Judge
                                                                             Tenth Circuit

                                                                              _________________________
                                                                              Date
DRAFT
Friday May 25, 2007 10:46
http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#tenthvoidmandatory

[j]udicial notice may be permissive or mandatory. If it is permissive, then the court may choose to take judicial notice of the fact proffered, or may reject the request and require the party to introduce evidence in support of the point. If it is mandatory, then the court must take judicial notice of the fact proffered.
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

William H. Payne                                                  )
Arthur R. Morales                                                )
                                                                                )
Appellant Plaintiffs,                                               )
                                                                                )
 v                                                                             ) 00-2019
                                                                                )
Lieutenant General Kenneth A. Minihan, USAF )
Director, National Security Agency                      )
National Security Agency                                      )
                                                                                 )
Appellee Defendant                                                )  

MANDATORY JUDICIAL NOTICE AND AUTHORITIES TO VOID JUDGMENT

1 COMES NOW, plaintiffs Morales and Payne to place this court on judicial notice of authorities of motion to vacate judgment in CIV NO 97 0266 SC/DJS.

2 To be valid and enforceable, a judgment must be supported by three elements:

(1) the court must have jurisdiction of the parties;
(2) the court must have jurisdiction of the subject matter; and
(3) the court or tribunal must have the power of authority to render the particular judgment.

If the requirements for validity are not met, a judgment may be subject to avoidance. 1

3 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

4 Such a judgment is void from its inception, incapable of confirmation or ratification, and can never have any legal effect. 3

5 A void judgment must be dismissed, regardless of timeliness if jurisdiction is deficient. 5

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

7 The passage of time, however great, does not affect the validity of a judgment 6 and cannot render a void judgment valid. 7

8 The limitations inherent in the requirements of due process of law extend to judicial, as well as political, branches of the government, 8 so that a judgment may not be rendered in violation of those constitutional limitations and guaranties. 9

9 A court may not render a judgment which transcends the limits of its authority, 10 and a judgment is void if it is beyond the powers granted to the court by the law of its organization, even where the court has jurisdiction over the parties and the subject matter. 11

1 See Peduto v. North Wildwood (DC NJ) 696 F Supp 1004, affd (CA3 NJ) 878 F.2d 725; In re Doe (NM App) 99 NM 517, 660 P.2d 607; Tice v. Nationwide Life Ins. Co., 284 Pa Super 220, 425 A.2d 782.

2 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).

3 See Stidham v. Whelchel, 698 NE2d 1152 (Ind.1998); Thompson v. Thompson, 238 SW2d 218 (Tex.Civ.App. 1951); Lucas v. Estate of Stavos, 609 NE2d 1114, rehng.den., trans.den, (Ind.App.Dist.1 1993); Loyd v. Director, Dept. of Public Safety, 480 So2d 577 (Ala.Civ.App.1985); In re Marriage of Parks, 630 NE2d 509 (Ill.App.Dist.4 1991); Lubben v. Selective Service System Local Bd. No.27, 453 F.2d 645, 14 A.L.R.Fed. 298 (CA1 1972); Hobbs v. U.S. Office of Personnel Mgmt., 485 F.Supp. 456 (M.D.Fla.1980); Holstein v. City of Chicago, 803 F.Supp. 205, recon.den., 149 F.R.D. 147, aff’d, 29 F.3d 1145 (N.D.Ill.1992); City of Los Angeles v. Morgan, 234 P2d 319 (Cal.App.Dist.2 1951).

4 Orner v. Shalala, 30 F.3d 1307 (Colo.1994).

5 See Mitchell v. Kitsap County, 59 Wash.App. 177, 180-81, 797 P2d 516 (1990)(collateral c Jaffe and Asher v. Van Brunt, 158 F.R.D. 278 (S.D.N.Y.1994).

6 See State ex rel. Smith v. Sixth Judicial Dist. Court, 63 Nev 249, 167 P.2d 648 (ovrld in part on other grounds by Poirier v. Board of Dental Examiners, 81 Nev 384, 404 P.2d 1); Monroe v. Niven, 221 NC 362, 20 S.E.2d 311.

7 See State ex rel. Smith v. Sixth Judicial Dist. Court, 63 Nev 249, 167 P.2d 648 (ovrld in part on other grounds by Poirier v. Board of Dental Examiners, 81 Nev 384, 404 P.2d 1); Columbus County v. Thompson, 249 NC 607, 107 S.E.2d 302.

8 As to persons and agencies bound by due process, see 16A Am.Jur.2d, Constitutional Law §§ 742, 821-824.

9 See Hanson v. Denckla, 357 US 235, 2 L.Ed.2d 1283, 78 S.Ct. 1228, reh den 358 US 858, 3 L.Ed.2d 92, 79 S.Ct. 10; Ladner v. Siegel, 298 Pa 487, 148 A 699, 68 ALR 1172.

10 See Royal Indem. Co. v. Mayor, etc., of Savannah, 209 Ga 383, 73 S.E.2d 205; Spencer v. Franks, 173 Md 73, 195 A 306, 114 ALR 263; Road Material & Equipment Co. v. McGowan, 229 Miss 611, 91 So.2d 554, motion dismd 229 Miss 630, 92 So.2d 245; Howle v. Twin States Express, Inc., 237 NC 667, 75 S.E.2d 732; Fitzsimmons v. Oklahoma City, 192 Okla 248, 135 P.2d 340; Robertson v. Commonwealth, 181 Va 520, 25 S.E.2d 352, 146 ALR 966; Reburg v. Lang, 239 Wis 381, 1 N.W.2d 759. The courts of a state may render only such judgments as they are authorized to do under the laws of the state. Mosely v. Empire Gas & Fuel Co., 313 Mo 225, 281 SW 762, 45 ALR 1223.

11 See People ex rel. Arkansas Valley Sugar Beet & Irrigated Land Co. v. Burke, 72 Colo 486, 212 P. 837, 30 ALR 1085; People v. Wade, 116 Ill 2d 1, 107 Ill Dec 63, 506 N.E.2d 954; Gray v. Clement, 296 Mo 497, 246 SW 940; Ex parte Solberg, 52 ND 518, 203 NW 898; Russell v. Fourth Nat’l Bank (Ohio) 102 Ohio St 248, 131 NE 726; Hough v. Hough (Okla) 772 P.2d 920; Farmers’ Nat’l Bank v. Daggett (Tex Com App) 2 S.W.2d 834; State v. Turner, 98 Wash.2d 731, 658 P.2d 658; Shopper Advertiser, Inc. v. Wisconsin Dep’t of Revenue, 117 Wis 2d 223, 344 N.W.2d 115.

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
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION was mailed to judges TACHA, EBEL, and LUCERO United States Court of Appeals for the Tenth Circuit The Byron White U.S. Court House 1823 Stout Street, Denver, CO 80257, Jan Elizabeth Mitchell, Assistant US Attorney, 201 3rd ST NW, ABQ, NM 87102 and foialo@nsa.gov by email this Tuesday May 29, 2007.

Below envelope contained


 

Received in mail Wednesday May 23, 2006



No stamp cancelation. Just like envelope from Metro court.

Below envelope contained



Case: 97cv266

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

*ATTENTION: For those that have not correctly setup their accounts the court will be printing and mailing, via USPS, copies of the document(s) and the NEF. When filing a document, it is still the responsibility of the filer to serve any persons listed in the section of the NEF labeled (.Notice has been delivered by other means to:_).

*NOTICE: Beginning June 1st, 2007, attorneys who have an active CM/ECF account, but have not entered their primary e-mail address will no longer receive printed copies of documents and the corresponding NEF. The court will only print and mail documents to pro se parties and other individuals exempted from the mandatory e-filing requirements.

*IMPORTANT: To receive NEFs in all of your cases, you will need to properly enter contact information into your account and update all of your cases. This includes your address, phone and fax numbers as well as your e-mail address.

*First, go to the Utilities Menu and Select Maintain Your E-mail. Enter the appropriate e-mail address(es) and press submit. Please ensure that the e-mail addresses you enter are spelled correctly.

*Next, go to the Utilities menu and click on the Maintain Your Address link. Fill in or correct your information and press submit. The system will ask if you wish to update the information in your cases. Select Update All and continue. This will update the contact and e-mail information for all of your cases, ensuring that you receive NEFs for activity in your cases.

*If you have questions, or need help, please contact our Helpdesk at 505-348-2075 or 1-866-620-6383.



MIME-Version:1.0
From:cmecfbb@nmcourt.fed.us
To:cmecfto@nmcourt.fed.us
Message-ld:<954305@nmcourt.fed.us>
Bcc:jan.mitchell@usdoj.gov, USANM.ECFCivil@usdoj.gov, craig.larson@usdoj.gov,
djscmecf@nmcourt.fed.us
Subject:Activity in Case 6:97-cv-00266-SEC-DJS Payne, et al v. Minihan, et al Notice (Other)
Content-Type: texVplain***NOTE TO PUBLIC ACCESS USERS*** You may view the filed documents once without charge. To avoid later charges, download a copy of each document during this first viewing.U.S. District Court
District of New Mexico - Version 3.0

Notice of Electronic Filing
The following transaction was entered on 5/18/2007 1:48 PM MDT and filed
on 5/16/2007

Case Name: Payne, et al v. Minihan, et al
Case Number: 6:97-cv-266 http://ecf.nmd.uscourts.gov/cgi-bin/DktRpt.plP134863

Filer: William H Payne
WARNING: CASE CLOSED on 10/27/1999

Document Number: 82 Copy the URL address from the line below into the location bar of your Web
browser to view the document: http://ecf.nrnd.uscourts.gov/cgi-bin/show_case_doc?82,134863,,MAGIC,,,3515742

Docket Text:
MANDATORY JUDICIAL NOTICE by William H Payne and Arthur R Morales (pz)
6:97-cv-266 Notice has been electronically mailed to:
Jan Elizabeth Mitchell jan.mitchell@usdoj.gov, USANM.ECFCivil@usdoj.gov,
craig.larson@usdoj.gov

6:97-cv-266 Notice has been delivered by other means to:
William H Payne
13015CalledeSandias,NE
Albuquerque, NM87111

The following document(s) are associated with this transaction:
Document description: Main Document
Original filename: n/a
Electronic document Stamp:
[STAMP dcecfStamp_ID= 1167529506 [Date=5/18/2007] [FileNumber=954304-0]
[017ab6f0c873cdde7162633152aefa377e30f49e8265a77d5ae5a43b085e92df6d2bced0f11 da54abada5fef415ad6698bb8253

Please note warning that case is closed on 10/27/1999. We, of course will see about this.







----- Original Message -----
From: bill payne
To: cmecf@nmcourt.fed.us ; cmecfclasses@nmcourt.fed.us ; cmecfregistration@nmcourt.fed.us
Cc: art morales
Sent: Thursday, May 24, 2007 8:07 AM
Subject: can't access docket of 97 cv 266

What's my account user name? I recall my old password. often ....

Thanks in advance.

Links don't work.

regards

Jan Mitchell is still an assistant us attorney. Wednesday May 9, 2007 14:41.

Jan Mitchell read

To: mvproposedtext@nmcourt.fed.us
Cc: art morales; foialo, foialo ; Mitchell, Jan (USANM)
Subject: void judgment in CIV NO 97 0266 SC/DJS
Sent: Fri, 11 May 2007 15:26:44 -0600

was read on Mon, 14 May 2007 07:43:09 -0600

Note that Michell doesn't answer the phone government style. Note also the long pause while Mitchell likely tried to decide what to do.

Ultimate goal in litigation is settlement. So we need to be conciliatory when talking to the US Attorney's office.

Friday May 11, 2007 we learned on the phoned jan.mitchell@usdoj.gov.

The Honorable Martha Vázquez


Dig this

Proposed Orders/Text:
mvproposedtext@nmcourt.fed.us

Judges don't want to waste their time writing orders. So naturally we're doing what is asked. Write an order for Vázquez to sign.

----- Original Message -----
From: bill payne
To: mvproposedtext@nmcourt.fed.us
Cc: art morales ; foialo, foialo ; jan.mitchell@usdoj.gov
Sent: Friday, May 11, 2007 2:26 PM
Subject: void judgment in CIV NO 97 0266 SC/DJS

FINAL
Thursday May 10, 2007 20:39
http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#voidjudgment






Label/Receipt Number: 7007 0220 0002 8759 4562
Status: Delivered Your item was delivered at 9:14 AM on May 15, 2007 in SANTA FE, NM 87501.






Label/Receipt Number: 7007 0220 0002 8759 4548
Status: Delivered Your item was delivered at 12:16 PM on May 14, 2007 in ALBUQUERQUE, NM 87102.


Label/Receipt Number: 7007 0220 0002 8759 4555
Status: Delivered Your item was delivered at 1:06 PM on May 14, 2007 in FORT GEORGE G MEADE, MD 20755.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           MOTION TO VOID JUDGMENT
Director, National Security Agency                                FOR LACK OF JURISDICTION
National Security Agency                                                TO DISMISS PAID-FOR JURY
Defendant                                                                         TRIAL LAWSUIT

                                                                                           Federal Rule of Civ. P. 60(b)(4)
MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION DIRECTED TO DISTRICT OF NEW MEXICO, SANTA FE CHIEF JUDGE MARTHA VAZQUEZ

I. INTRODUCTION

Plaintiffs Morales and Payne sued the National Security Agency under the FOIA on March 4, 1997.

Subject of the lawsuit is:

What information was provided to Saddam Hussein exactly? Answers to this question are currently being sought in a lawsuit against NSA in New Mexico, which has asked to see "all Iranian messages and translations between January 1, 1980 and June 10, 1996". [7]

II. BASIS OF MOTION

1 Docket entry - , just above docket entry 1, shows that plaintiffs paid filing fee of $150 on 2/28/97.

2 Docket entry 2 shows DEMAND for jury trial filed on March 18, 1997.

3 Docket entry 73 shows late Senior Judge Santiago E Campos granting motion for summary judgment dismissing case.

4 Campos lacked jurisdiction to dismiss DEMANDed jury trial lawsuit guaranteed inviolate by US Constitution.

III. ISSUES

5 Right of jury trial is guaranteed inviolate by 7thAmendment to US Constitution and 28 USC Rule 38. Therefore Campos lacked jurisdiction to dismiss paid for jury trial lawsuit.

IV RELIEF SOUGHT

6 Return filed stamped copy of this Motion with 10 working days.

7 Sign attached ORDER rescinding Campos 10/27/99 [docket entry 72] which orders settlement or trial by jury within 90 days of entry.

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

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION was mailed to LTG Keith B. Alexander, Director, National Security Agency, 9800 Savage Road, Fort George G. Meade, MD 20755-6000, Jan Elizabeth Mitchell, Assistant US Attorney, 201 3rd ST NW, ABQ, NM 87102 and foialo@nsa.gov by email this Friday May 11, 2007.


FINAL
Thursday May 10, 2007 14:13
http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#order

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           MOTION TO VOID JUDGMENT
Director, National Security Agency                                FOR LACK OF JURISDICTION
National Security Agency                                                TO DISMISS PAID-FOR JURY
Defendant                                                                         TRIAL LAWSUIT

                                                                                           Federal Rule of Civ. P. 60(b)(4)

ORDER VACATING Judge Santiago Campos'
10/27/99 MEMORANDUM, OPINION, AND ORDER

1 Judge Santiago Campos' 10/27/99 MEMORANDUM, OPINION, AND ORDER is void for lack of jurisdiction to dismiss paid for jury trial lawsuit.

Right of jury trial is guaranteed inviolate by 7thAmendment to US Constitution and 28 USC Rule 38.

2 CIV NO 97 0266 is to be settled or proceed to trial by jury within 90 days from entry of this order.



                                                                             _________________________
                                                                             Martha Vázquez
                                                                             Chief United States District Judge

                                                                              _________________________
                                                                              Date


FINAL
Thursday May 10, 2007 20:45
http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#voidjudgmentnotice

[j]udicial notice may be permissive or mandatory. If it is permissive, then the court may choose to take judicial notice of the fact proffered, or may reject the request and require the party to introduce evidence in support of the point. If it is mandatory, then the court must take judicial notice of the fact proffered.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           MANDATORY JUDICIAL NOTICE and
Director, National Security Agency                                authorities for void judgment
National Security Agency
Defendant                                                                         

MANDATORY JUDICIAL NOTICE and authorities for void judgment

1 COMES NOW, plaintiffs Morales and Payne to place this court on judicial notice of authorities of motion to vacate judgment in CIV NO 97 0266 SC/DJS.

2 To be valid and enforceable, a judgment must be supported by three elements:

(1) the court must have jurisdiction of the parties;
(2) the court must have jurisdiction of the subject matter; and
(3) the court or tribunal must have the power of authority to render the particular judgment.

If the requirements for validity are not met, a judgment may be subject to avoidance. 1

3 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

4 Such a judgment is void from its inception, incapable of confirmation or ratification, and can never have any legal effect. 3

5 A void judgment must be dismissed, regardless of timeliness if jurisdiction is deficient. 5

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

7 The passage of time, however great, does not affect the validity of a judgment 6 and cannot render a void judgment valid. 7

8 The limitations inherent in the requirements of due process of law extend to judicial, as well as political, branches of the government, 8 so that a judgment may not be rendered in violation of those constitutional limitations and guaranties. 9

9 A court may not render a judgment which transcends the limits of its authority, 10 and a judgment is void if it is beyond the powers granted to the court by the law of its organization, even where the court has jurisdiction over the parties and the subject matter. 11

1 See Peduto v. North Wildwood (DC NJ) 696 F Supp 1004, affd (CA3 NJ) 878 F.2d 725; In re Doe (NM App) 99 NM 517, 660 P.2d 607; Tice v. Nationwide Life Ins. Co., 284 Pa Super 220, 425 A.2d 782.

2 See U.S.Const.Amdt. V; F.R.Civ.P. 60(b)(4); CR 60(b)(5); State cases: Lindgren v. Lindgren, 58 Wash.App. 588, 596, 794 P2d 526 (1990), rev.den., 116 Wash.2d 1009, 805 P2d 813 (1991); Brenner v. Port of Bellingham, 53 Wash.App. 182, 188, 765 P2d 1333 (1989) (motions to vacate under CR 60(b)(5) are not barred by the ‘reasonable time’ or the 1-year requirement of CR 60(b)”); Mid-City Materials, Inc. v. Heater Beaters Custom Fireplaces, 36 Wash.App. 480, 486, 674 P2d 1271 (1984); Matter of Marriage of Leslie, 112 Wash.2d 612, 618-19, 772 P2d 1013 (1989)(doctrine of laches does not bar attack of void judgment)(citing John Hancock Mut. Life. ins. Co. v. Gooley, 196 Wash. 357, 370, 83 P2d 221 (1938)(additional cite omitted); In re Marriage of Oritz, 108 Wash2d 643, 649, 740 P2d 843 (1987); Dike v. Dike, 75 Wash.2d 1, 7, 448 P2d 490 (1968); Bresolin v. Morris, 86 Wash2d 24, 245, 543 P2d 325 (1975); Cockerham v. Zikratch, 619 P2d 739 (Ariz.1980); State ex rel Turner v. Briggs, 971 P2d 581 (Wash.App.1999); Ward v. Terriere, 386 P2d 352 (Colo. 1963); Matter of Marriage of Hampshire, 869 P2d 58 (Kan.1997); Matter of Marriage of Welliver, 869 P2d 653 (Kan.1994); In re Estate of Wells, 983 P2d 279 (Kan.App.1999); B & C Investments, Inc. v. F & M Nat’l. Bank & Trust, 903 P2d 339 (Okla.App.Div.3 1995); Graff v. Kelly, 814 P2d 489 (Okl.1991); Capital Federal Savings Bank v. Bewly, 795 P2d 1051 (Okl.1990); Wahl v. Round Valley Bank, 38 Ariz. 411, 300 P. 955 (1931); Davidson Chevrolet, Inc. v. City and County of Denver, 330 P2d 1116, cert.den., 79 S.Ct. 609, 359 US 926, 3 L.Ed.2d 629 (Colo.1958); Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203 (1914); Lange v. Johnson, 204 NW2d 205 (Minn.1973); People v. Wade, 506 N.W2d 954 (Ill.1987); State v. Blankenship, 675 NE2d 1303 (Oh.App.Dist.9 1996); Hays v. Louisiana Dock Co., 452 NE2d 1383 (Ill.App.Dist.4 1983); People v. Rolland, 581 NE2d 907 (Ill.App.Dist.4 1991); Eckles v. McNeal, 628 NE2d 741 (Ill.App.1993); People v. Sales, 551 NE2d 1359 (Ill.App.Dist.2 1990); In re Adoption of E.L., 733 NE2d 846 (Ill.App.Dist.1 2000); Irving v. Rodriguez, 179 NE2d 145 (Ill.App.Dist.2 1960); People ex rel Brzica v. Village of lake Barrington, 644 NE2d 66 (Ill.App.Dist.2 1994); Steinfeld v. Haddock, 513 US 809 (Ill.1994); Dusenberry v. Dusenberry, 625 NE2d 458 (Ind.App.Dist.1 1993); Rook v. Rook, 353 SE2d 756 (Va.1987); Mills v. Richardson, 81 SE2d 409 (N.C.1950); Henderson v. Henderson, 59 SE2d 227 (N.C.1950); State v. Richie, 20 SW3d 624 (Tenn.2000); Crockett Oil Co. v. Effie, 374 SW2d 154 (Mo.App.1964); State ex rel Dawson v. Bomar, 354 SW2d 763, cert.den., ____ US _____ (Tenn.1962); Underwood. v. Brown, 244 SW2d 168 (Tenn.1951); Richardson v. Mitchell, 237 SW2d 577 (Tenn.App.1950); City of Lufkin v. McVicker, 510 SW2d 141 (Tex.Civ.App.1973); 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).

3 See Stidham v. Whelchel, 698 NE2d 1152 (Ind.1998); Thompson v. Thompson, 238 SW2d 218 (Tex.Civ.App. 1951); Lucas v. Estate of Stavos, 609 NE2d 1114, rehng.den., trans.den, (Ind.App.Dist.1 1993); Loyd v. Director, Dept. of Public Safety, 480 So2d 577 (Ala.Civ.App.1985); In re Marriage of Parks, 630 NE2d 509 (Ill.App.Dist.4 1991); Lubben v. Selective Service System Local Bd. No.27, 453 F.2d 645, 14 A.L.R.Fed. 298 (CA1 1972); Hobbs v. U.S. Office of Personnel Mgmt., 485 F.Supp. 456 (M.D.Fla.1980); Holstein v. City of Chicago, 803 F.Supp. 205, recon.den., 149 F.R.D. 147, aff’d, 29 F.3d 1145 (N.D.Ill.1992); City of Los Angeles v. Morgan, 234 P2d 319 (Cal.App.Dist.2 1951).

4 See In re Marriage of Markowski, 50 Wash.App. 633, 635, 749 P2d 745 (1988); Brickum Inv. Co. v. Vernham Corp., 46 Wash.App. 517, 520, 731 P2d 533 (1987); Orner v. Shalala, 30 F.3d 1307 (Colo.1994).

5 See Mitchell v. Kitsap County, 59 Wash.App. 177, 180-81, 797 P2d 516 (1990)(collateral challenge to jurisdiction of pro tem judge granting summary judgment properly raised on appeal)(citing Allied Fidelity Ins. Co. v. Ruth, 57 Wash.App. 783, 790, 790 P2d 206 (1990)); Jaffe and Asher v. Van Brunt, 158 F.R.D. 278 (S.D.N.Y.1994).

6 See State ex rel. Smith v. Sixth Judicial Dist. Court, 63 Nev 249, 167 P.2d 648 (ovrld in part on other grounds by Poirier v. Board of Dental Examiners, 81 Nev 384, 404 P.2d 1); Monroe v. Niven, 221 NC 362, 20 S.E.2d 311.

7 See State ex rel. Smith v. Sixth Judicial Dist. Court, 63 Nev 249, 167 P.2d 648 (ovrld in part on other grounds by Poirier v. Board of Dental Examiners, 81 Nev 384, 404 P.2d 1); Columbus County v. Thompson, 249 NC 607, 107 S.E.2d 302.

8 As to persons and agencies bound by due process, see 16A Am.Jur.2d, Constitutional Law §§ 742, 821-824.

9 See Hanson v. Denckla, 357 US 235, 2 L.Ed.2d 1283, 78 S.Ct. 1228, reh den 358 US 858, 3 L.Ed.2d 92, 79 S.Ct. 10; Ladner v. Siegel, 298 Pa 487, 148 A 699, 68 ALR 1172.

10 See Royal Indem. Co. v. Mayor, etc., of Savannah, 209 Ga 383, 73 S.E.2d 205; Spencer v. Franks, 173 Md 73, 195 A 306, 114 ALR 263; Road Material & Equipment Co. v. McGowan, 229 Miss 611, 91 So.2d 554, motion dismd 229 Miss 630, 92 So.2d 245; Howle v. Twin States Express, Inc., 237 NC 667, 75 S.E.2d 732; Fitzsimmons v. Oklahoma City, 192 Okla 248, 135 P.2d 340; Robertson v. Commonwealth, 181 Va 520, 25 S.E.2d 352, 146 ALR 966; Reburg v. Lang, 239 Wis 381, 1 N.W.2d 759. The courts of a state may render only such judgments as they are authorized to do under the laws of the state. Mosely v. Empire Gas & Fuel Co., 313 Mo 225, 281 SW 762, 45 ALR 1223.

11 See People ex rel. Arkansas Valley Sugar Beet & Irrigated Land Co. v. Burke, 72 Colo 486, 212 P. 837, 30 ALR 1085; People v. Wade, 116 Ill 2d 1, 107 Ill Dec 63, 506 N.E.2d 954; Gray v. Clement, 296 Mo 497, 246 SW 940; Ex parte Solberg, 52 ND 518, 203 NW 898; Russell v. Fourth Nat’l Bank (Ohio) 102 Ohio St 248, 131 NE 726; Hough v. Hough (Okla) 772 P.2d 920; Farmers’ Nat’l Bank v. Daggett (Tex Com App) 2 S.W.2d 834; State v. Turner, 98 Wash.2d 731, 658 P.2d 658; Shopper Advertiser, Inc. v. Wisconsin Dep’t of Revenue, 117 Wis 2d 223, 344 N.W.2d 115.

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
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION was mailed to LTG Keith B. Alexander, Director, National Security Agency, 9800 Savage Road, Fort George G. Meade, MD 20755-6000, Jan Elizabeth Mitchell, Assistant US Attorney, 201 3rd ST NW, ABQ, NM 87102 and foialo@nsa.gov by email this Friday May 11, 2007.



http://www.prosefights.org/nmlegal/nsalawsuit/

Note $150 filing fee paid on 3/4/97 and, of course Morales and Payne filed DEMAND for jury trial guaranteed inviolate by 7thAmendment to US Constitution and 28 USC Rule 38.



Judge Santiago Campos [dead from cancer] did not have jurisdiction to for docket entries 71 and 72.



Judgment must be voided ... providing we don't promptly settle, of course.



Thursday May 10, 2007 19:33

Clerk
United States District Court
Post Office Box 2710
Santa Fe, New Mexico 87504

Dear Clerk:

Enclosed are an original and two copies of a motion to void judgment, MANDATORY JUDICIAL NOTICE and authorities for void judgment and a self addressed stamped envelope.

Please return a file stamped copies to us.

Thank you in advance.

Sincerely

Payne and Morales


----- Original Message -----
From: foialo, foialo
To: bill payne
Sent: Tuesday, May 15, 2007 7:03 AM
Subject: RE: void judgment in CIV NO 97 0266 SC/DJS


Received.

Pamela N. Phillips
Chief FOIA Public Liaison Officer
National Security Agency
(301) 688-6527


----- Original Message -----
From: bill payne
To: foialo, foialo
Cc: art morales ; Jean.Kornblut@usdoj.gov ; Jim.Kovakas@usdoj.gov ; the.secretary@hq.doe.gov ; julia.eichhorst@ic.fbi.gov ; iscap@nara.gov ; bill.leonard@nara.gov ; AskDOJ@usdoj.gov ; Schwartz, William ; Apodaca, Terry ; foiofficer@doeal.gov
Sent: Thursday, May 10, 2007 4:56 PM
Subject: Settlement or another jury trial lawsuit?


Thursday May 10, 2007 14:41

Pamela N. Phillips
NSA Chief FOIA Public Liaison Officer/DJ4
9800 Savage Road, Suite 6248
Ft. George G. Meade, MD 20755-6248
Telephone: (301) 688-6527
Fax: (301) 688-4762
Email: foialo@nsa.gov

Ms phillips,

We enclose a page address containing a motion to void judgment in our visible 1997 NSA FOIA lawsuit.

The FBI Gilbert letter reveals that Sandia Labs, the FBI, and NSA withheld documents, without acknowledging their existence, requested under the FOIA/PA.

I'm hoping that Ms Becknell is successful at sending me these documents by May 25, 2007. If not, I can do another jury trial DEMAND FOIA/PA lawsuit at the DC circuit.

We really feel that we should get matter settled.

We ask for your help to get these unfortunate matters settled before they get worse.

Here's our settlement proposal:

1 We ask that NSA post on its website the documents requested in our 1997 FOIA lawsuit
What information was provided to Saddam Hussein exactly? Answers to this question are currently being sought in a lawsuit against NSA in New Mexico, which has asked to see "all Iranian messages and translations between January 1, 1980 and June 10, 1996". [7]

2 The FOIA allows monetary compensation for a successful lawsuit. Therefore, we ask for payment of $1,000 per docket entry line - of which there are currently 77 entries.

We ask that you forward by email our settlement proposal to those in power to settle.

Please give us an ack if you get this email.

Thanks in advance.

Bill and Art

DRAFT
Saturday June 2, 2007 18:07
http://www.prosefights.org/nmlegal/nsalawsuit/nsalawsuit.htm#historynotice

When we finish

JUDICIAL NOTICE
NEW MEXICO NSA FOIA LAWSUIT HISTORY
let's send a email link to

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO, SANTA FE
William H. Payne
Arthur R. Morales
Plaintiffs

v                                                                                                   CIV NO 97 0266 SC/DJS

Lieutenant General Kenneth A. Minihan, USAF           
Director, National Security Agency                               
National Security Agency                                               
Defendant                                                                         


JUDICIAL NOTICE
NEW MEXICO NSA FOIA LAWSUIT HISTORY

1
While a Muslim himself, the Shah gradually lost support with the Shi'a clergy of Iran, particularly due to his strong policy of Westernization and recognition of Israel. Clashes with the religious right, increased communist activity, Western interference in the economy, and a 1953 period of political disagreements with Mohammad Mossadegh (in which each side accused the other of staging a coup, eventually leading to Mossadegh's downfall) would cause an increasingly autocratic rule. Various controversial policies were enacted, including the banning of the Tudeh Party and the oppression of dissent by Iran's intelligence agency, SAVAK; Amnesty International reported that Iran had as many as 2,200 political prisoners in 1978. By 1979, the political unrest had transformed into a revolution which, on January 16, forced the Shah to leave Iran after 37 years of rule. Soon thereafter, the revolutionary forces transformed the government into an Islamic republic.

2
The Iran hostage crisis was a diplomatic crisis between Iran and the United States that was triggered by a group of militant university students who took over the American diplomatic mission in Tehran, Iran on November 4, 1979. The students were supported by Iran's post-revolution Islamic regime that was in the midst of solidifying power. The students objected to U.S. influence in Iran and its support of the recently fallen Shah of Iran, Mohammad Reza Pahlavi. They held 63 U.S. diplomats and three other U.S. citizens hostage until January 20, 1981. Of those captured, 52 were held hostage until the conclusion of the crisis 444 days later.

3 Below Wikipedia text removed.

Nojeh Coup

In July 1980, Zbigniew Brzezinski of the United States 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 and Latin America. Shortly after Brzezinski's meeting with Hussein, the President of Iran, Abolhassan Bani-Sadr quietly rounded up 600 of the loyalist plotters within Iran, putting an effective end to the Nojeh Coup.[5] Saddam decided to invade without the Iranian officers' assistance, beginning the Iran-Iraq war on 22 September 1980.

4 Shapour Bakhtiar and his secretary Soroush Katibeh were executed on August 7, 1991 by Ali Vakili Rad and Massoud Seyed Hendi in Paris.

5

A senior member of Sandia's technical staff since 1980 and the author of three computer texts, Payne was stripped of his security clearance badges on July 17. [1992]

6 Sandia labs employee James Gosler and Gus Simmons brag about their convert channel work to Payne and others at Sandia labs.

Gosler is funded by NSA.


7

Keep in mind that Persians are fluent in all languages in the world. Like Spanish.

They do well in Japanese, German and English, of course.

Khatami has a bachelor's degree in Western philosophy from Isfahan University, but he left the academic education while he was studying for a master's degree in Educational Sciences at Tehran University and went to Qom to complete his previous studies in Islamic sciences. He studied there for seven years and completed the courses to the highest level, Ijtihad. After that, he went to Germany to chair the Islamic Centre in Hamburg, where he stayed until the Iranian revolution.

Besides his native language Persian, he speaks Arabic, English and German.

Mr. Mohammad Khatami,
The Presidency,
Palestine Avenue,
Azerbaijan Intersection,
Tehran, Iran.
Email: khatami@president.ir
Fax: 0098- 216 464 443

Then, of course, there is their expertise in algebra and algorithms.

Without Zirakzadeh's higher algebra course in 1958 this tutorial would likely never been written.

.

The guy pictured above wrote the below.

6

 



Payne didn't know what Shane was up to until he read


Next, this leak was compounded by the U.S. demonstration that it was also reading secret Iranian communications. As reported in Switzerland's Neue Zurcher Zeitung, the U.S. provided the contents of encrypted Iranian messages to France to assist in the conviction of Ali Vakili Rad and Massoud Hendi for the stabbing death in the Paris suburb of Suresnes of the former Iranian prime minister Shahpour Bakhtiar and his personal secretary Katibeh Fallouch. [2]



Sarhadi was acquitted.
Wednesday, October 25, 2006; 7:54 PM

BUENOS AIRES, Argentina -- Argentine prosecutors asked a federal judge on Wednesday to order the arrest of former Iranian President Hashemi Rafsanjani and seven others for the 1994 bombing of a Jewish cultural center that killed scores of people.











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
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing MOTION TO VOID JUDGMENT FOR LACK OF JURISDICTION was mailed to LTG Keith B. Alexander, Director, National Security Agency, 9800 Savage Road, Fort George G. Meade, MD 20755-6000, Jan Elizabeth Mitchell, Assistant US Attorney, 201 3rd ST NW, ABQ, NM 87102 and foialo@nsa.gov by email.

_________________________

_________________________
Date

Another timely coincidence.

----- Original Message -----
From: larryeverest@hotmail.com
To: bpayne37@comcast.net
Sent: Monday, June 04, 2007 11:41 AM
Subject: Dangerous times demand courageous voices.

Dear Friends,
Dangerous times indeed demand courageous voices. And I feel Bob Avakian is such a voice.

"Avakian combines an unsparing critique of the history and current direction of American society with a sweeping view of world history and the potential for humanity. He has brought forth a fresh, relevant and compelling approach to Marxism, deeply analyzing the history of the Communist movement and the socialist revolutions and upholds their achievements. At the same time, he honestly confronts and criticizes what he views as their shortcomings, opening up new paths of inquiry in the process and initiating dialog with people who hold a wide range of views."

I wholeheartedly encourage you to go to Engage! and read the entire statement, sign it, forward it, and/or financially support its wide publication.

People who have signed (Cornel West, Kenny Leon, Chuck D, Rickie Lee Jones, Saul Williams and many others) don't necessarily agree with all of Avakian's views, but feel "his revolutionary analysis and solutions to be an important and necessary part of the ferment and discourse required in this society and the world in this dark time" and that his voice should not be the object of suppression or repression.

"In several days, the Engage! statement will appear in The Nation in print and on-line, The Amsterdam News, and The Black Commentator," the Engage Committee writes. "But to accomplish this, we still need to raise almost $6,000 in the next few days ($3,000 by Tuesday and another $2,950 by Thursday). An additional $3,500 is needed by the end of the month. Your help is urgently needed to meet this important goal....This will help bring in fresh air to this stifling and dangerous atmosphere."

You can donate on-line via PayPal at Engage! online or send a check, made payable to Engage! 70A Greenwich Avenue, #434, New York, NY 10011. Email info@engagewithbobavakian.org with questions or to let them know if you're mailing a check. If you're not able to donate a large amount but are able to give a short-term loan, please email the Engage! Committee.

Several weeks ago, Revolution newspaper (for whom I write), published "The Crossroads We Face The Leadership We Need", a special issue on Bob Avakian. With the help of 3,000 volunteers, more than 500,000 copies were distributed nationwide.

While Revolution is distinct from the Engage! Project, the issue succinctly summed up the importance of Avakian's work, and why - when the world cries out for fundamental change - it's critical that his voice be part of the conversation on how we've gotten to this point and what must be done to change it.

Best, Larry Everest

PS. My latest articles on the Middle East and danger of ongoing war, including possibly with Iran, can be found at my website.

Payne watched a CSPAN interview with Everest. He's a communist.

Transcription of handwritten material on Thursday August 9, 2007 received in mail on Saturday August 4, 2007

Motion of Reconsider or Alter judgment purusant to Rule 58(a)

After having reviewed the judgment for anctions, the understigned is taking this oppority to register his objections of order for sanctions.

In the citation of Garziere v First National Bank of Nwwat (OK civ app 117 JNE 30 1998) , it is noted if moves not of mart a sanction should be limited to "what is sufficient to deter repetition of such conduct or comparable conduct by orthers simiarly situated in attempt to explain the tend thousand dollar fine ($10,000) as applied to the individual litigants. The court cites a sinlge case in the New Mexico district court made references sanctions as applied to arrorney's not pro se litigants.

For reasons of a more applicable comparison in terms of similarly situated pro se litigantsmpt jave been sanctioned. The following cases are cited. In cas management services; m B ((crstal() Momas Monroe, Gwnem Monroe (10 on ciz. 2002) the Monroes were subject to only five hundred ($500) in canctions for frivolouys filings, after the Monroe's had been warned that "if he continue to file frivou\lous appeal, he would be subject to monetary sanctions, and filing restrictions.

In the citation for Demos v keating; John Doe Woeden, George Bush, US. President (10 m iz 1/20/03) nez is the relevant quote from Werner v. Utah, 32F, 3d 1446,1447,1448 (10th dir 1994) where it is note mat fifty filings is district court, and twenty-two appeals had been utilitzed. Yet, no such fine had been imposed in that particular case, or the case of Winslow v Homer (In RE Winslow) 17F 3rd 3111 315 (10th Cir 1994). Even though the me ze had been registered seventeen (17) appeals in that case. The sam can be stated in Ketchm v. Cruz 961 F.2d 916, 918 (10th Cir 1998) where fifteen lawsuits had been initiated.

In a case cited by this court involving Tripate v Beaman, 878, F. 2d 351, 353 (10th Cir , 1989), the use of the penalty of filing restrictions alone ws regarded as a serious sanction.

In Sam Beilue v. International Brothergood of Teamsters, Local No 492 (10th Cir. July 2001) is stated the following, " there must be sufficient nexus between noncompliance with the rules, and the amount of fees and expeses awared as a sanction (ee Turbball v Wilken, 893, F. 2d 256, 259 (10th Cir 1990) (per curiam) as an example of this one can note the case of Miller v United States of American adn Internal Revenue Service (No 87-2969 7th cir Feb 8, 1989) The 24 a sanction of Fifteen Hunder dollars ($1,500) was appropriate against Mr Miller for pursuing meritless constitutional cliams through the US of the judicial review mmm benijn and Rule 11 of the dederal rules of civiil procedure. This was done after a warning had been issued five years previous to the imposition of the fifteen hunder dollar fine.

Conclusion

The undersigned in respectfully ask the court to reconsider the ten thousand dollar fine being imposed agaisnt both litigants based on case law involving simlarly situated pro se litigant, naming even remotedly approaching theabove amount has been utitized as a sanction.

In the cse of a tax protester who ws previously wrned about fivolous filing, a sanction of only fifteen hunderd dollars was imposed. using the case law involving the Tenth Circuit court of appeals, and similar pro se litigants. We request a reconsiderationof the large amount in terms of sanctions that has been imposed against us.


Hey, we can't do a Rule 59(e) response. Reason is that Rule59(e) only applies to a judgment, not an order.

So we do a Rule 60(b)(3),(4)!

Do your own thinking.

Dr Guttman phoned September 13, 2007 19:00 to report that it was his, not his lawyer decision, to file under 59(e).

Guttman said that a judgment is an order. Guttman cited New Mexico state case law to suport his claim.

Rule 59 says "judgment" not "order".

Rule 60, specifically says "judgement or order." Very clear. We like obvious things and don't want to waste our time trying to prove the obscure.


Lawyers wrote this: "Federal Rules of Civil Procedure do not formally provide for motions for reconsideration."?

This is contradicted by Rule 59(e).


"Lawyers don't solve problems; they exacerbate them. They're paid to turn small problems into expensive big ones that take years to resolve."

I. INTRODUCTION

Federal Rules of Civil Procedure do not formally provide for motions for reconsideration. Nevertheless, courts generally construe such a motion, if filed within ten (10) days of the district court's entry of judgment, as a motion to alter or amend the judgment under Rule 59(e). See, Computerized Thermal Imaging, Inc. v. Bloomberg, L.P.. 312 F,3d 1292,1296 n. 3 (10th Cir. 2002). A Rule 59(e) motion should be granted to correct manifest errors of law, or to prevent manifest injustice. Servants of the Paraclete v. Does. 204 F.3d. 1005,1012 (10111 Cir. 2000); see also, Benne v. Int'lBus. Machines, 87 F.3d 419, 428 (10th Cir. 1996). The Tenth Circuit reviews the legal issues surrounding the grant of qualified immunity de novo, "viewing all evidence in the light most favorable to [Plaintiffs] as the non-moving party." DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001). In its Memorandum Opinion and Order of June 4, 2007, this Court rightly concluded that under the applicable standard. Plaintiff demonstrated a violation of his liberty interests in support of his "stigma plus" claim against Defendants Khiasa and Parsons. (Doc. 77, p. 8-10). As the Court correctly concluded, "Plaintiff has demonstrated more than a mere blemish on his reputation, his medical license has been completely revoked." (Id., p. 10,n.5). Nevertheless, the Court found that the contours of the right, and the law in this area, was not clearly established at the time of the publication in October 3, 2001. Plaintiff does not wish to revisit his prior arguments, but requests that the Court reconsider its ruling on this legal issue, and find that the law in this area was clearly established.

In addition, the Plaintiff for the first time recently learned that the Defendants failed to comply with the New Mexico statute governing their actions with respect to revocation of his license. Plaintiff raised this fact in response to Defendants' second Motion to Dismiss. The issue was the Defendants' failure to designate three licensed health care providers to be members of the examining committee pursuant to NMSA 1978, § 61-7-4. The District Court found as follows: "The licensing issue is completely unrelated to Plaintiff's current federal claims and is not properly cognizable by this Court. To the extent Plaintiff now moves for permission to amend his complaint yet again to add such a claim, his motion is denied." (Doc. 77, p. 14, n. 6). Plaintiff requests that the Court reconsider its ruling, considering that Plaintiff had already stated a claim for violation of due process, and this fact supports that claim, as well as the claim under the ADA. The fact itself does not assert a new claim. :

Defendants' counsel was contacted, and opposes this motion.

II. ARGUMENT

A. The failure to appoint three licensed physicians as required by New Mexico law is a fact that supports Plaintiffs claims. The Court found, in its ruling that the violation ofNMSA 1978, § 61-7-4 was completely unrelated to Plaintiffs current federal claims, that Plaintiffs failure to raise the issue prior in the state court proceedings was, at least in part, justification for the Court's refusal to consider the issue. This rationale also underlaid the Court's decision to disallow amendment of the Complaint to allege such undisputed fact. Plaintiff has alleged since the filing of the original complaint claims for violation of due process and violation of the Americans with Disabilities Act. (See, Docs. 1; 28). Plaintiff has only filed the original Civil Complaint, and a First Amended Civil Complaint after remand from the Tenth Circuit. By contrast, the Defendants have filed three motions to dismiss, and have indicated in the most recent hearing that they intend to file some more. It would be unjust to not allow the Plaintiff to raise, as a factual matter, an issue that is arguably jurisdictional and a per se violation of the due process clause. There would be no prejudice to the Defendants who have not even answered either the Plaintiffs original or amended Complaints, and have since filed a Notice of Appeal on the denial of the imputed quasi-judicial immunity defense.

The Court has found that the Defendants' multiple and piece-meal motions to dismiss were not done with an intent to delay, even though the most recent one was filed only after Plaintiff served


Monday October 22, 2007 08:15

Look at the damage done in terms of oil production by the Iraq/Iran war.

Perhaps now we all realize that the Iranian prime minister Shapour Bakhtiar and his personal secretary Katibeh Fallouch were not murdered: both were executed for their organization of the attempted Nojeh coup by Ali Vakili Rad and Massoud Hendi. The execution project took 11 years.

Zbigniew Brzezinski and King Hussein of Jordan helped engineer the Iraq/Iran war. And got caught.

In fact, "American intelligence agencies provided Iran and Iraq with deliberately distorted or inaccurate intelligence data in recent years," the Times reported (1/12/87). The motive, captured in the Times headline: "Keeping Either Side From Winning." Or, as Henry Kissinger coldly put it, "too bad they can't both lose."

LEESBURG, Virginia (AP) -- The United States and other nations will not allow Iran to obtain a nuclear weapon, Vice President Dick Cheney said Sunday.

Keep in mind readers that our Persians friends may starve in the cold and dark without nuclear electric power.

Meet friend Shirin Neshat.

Friend Shirin has pdf skills.

And, of course, meet friend Ahmad.

Imam ghoft een rezhim-e ishghalgar-e qods bayad az safheh-ye ruzgar mahv shavad.

Let's settle before matters get far worse.