Time: Sat Aug 02 06:28:14 1997
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Date: Sat, 02 Aug 1997 06:21:24 -0700
To: whig@pobox.com
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Kleinpaste v. United States et al.
References: <3.0.3.16.19970729204837.3e170ed4@pop.primenet.com>
<199707300334.XAA10013@paine.adm.by.net>
Please read 5 U.S.C. 552(a)(4)(B).
There is only one court with original
jurisdiction over FOIA litigation,
and that court is the DCUS. A federal
judge in Arizona also ruled that way
about a year ago. Karl can argue that
he made a mistake, because of the fraud
which is evident, and now proven, inside
Title 28 in general. Mistake is an
affirmative defense, particularly if
it was the result of fraud. On the
strength of the FOIA request, and the
proof of 2 classes of federal courts,
Karl could either transfer the case,
or demand a stay of proceedings, pending
discovery of documents requested under
the FOIA. We did a similar stay motion
at the 2nd Circuit, and so far it seems
to be working. Put simply, Karl made a
mistake to invoke the United States District
Court, and his mistake was the result of
fraud, which he will prove in his pleading
to that court. The proof will involve
simple references to other cases, like
People v. United States et al., where we
briefed this subject as thoroughly as has
ever been done. You need FOIA as a way to
prove that the DCUS is the court of original
jurisdiction for a state Citizen, under the
"arising under" clause: Article III, Section 2:
constitution, laws, and treaties of the United
States -- these are the three subject matters
which Karl can litigate in the DCUS.
/s/ Paul Mitchell
At 02:42 AM 8/2/97 +0000, you wrote:
>On 29 Jul 97 at 20:48, Paul Andrew Mitchell wrote:
>
>> Karl had better get cracking on that FOIA for
>> the Agreement on Coordination of Tax
>> Administration, and then a NOTICE AND
>> DEMAND FOR MANDATORY JUDICIAL NOTICE
>> of that FOIA request, with deadlines
>> for exhaustion detailed for the court,
>> and also the FOIA for credentials of
>> the U.S. Attorneys.
>
>Paul,
>
>I'm still not sure how FOIA gets us a change of venue. As I
>specified in my last posting on the subject, it seems if the case was
>misfiled, a motion to transfer is more direct and thus appropriate.
>FOIA might (MIGHT) stay proceedings in USDC pending resolution, but I
>hardly see how it compels transfer of a previously filed case absent
>an explicit request for transfer anyhow, so why not just petition
>thusly?
>
>> I would couple these with a MOTION TO STAY
>> PROCEEDINGS, PENDING DISCOVERY OF DOCUMENTS
>> REQUESTED UNDER FOIA. This will force
>> the question about the court of
>> original jurisdiction to compel production
>> of these documents. See 5 U.S.C. 552(a)(4)(B)
>> for the original jurisdiction granted to the DCUS.
>> We did this at the 2nd Circuit recently, and it
>> tied things up nicely, under the statutory
>> requirements of the FOIA.
>
>We're not trying to tie things up. We're trying to get proper
>jurisdiction to litigate, expeditiously. We WANT to litigate. We
>want to begin discovery. The sooner the better. Unless I'm very
>confused, you seem to be putting forward a strategy which is
>appropriate for a defendant trying to stave off prosecution, when we
>are a plaintiff trying to obtain damages and equitable relief.
>
>> Since this PROTECTIVE ORDER evidently stays
>> all discovery, without exception, I would also
>> request reconsideration of this ORDER, in light
>> of the statutory rights which can be enforced
>> under the FOIA, separately from standard
>> discovery. I would argue that this PROTECTIVE
>> ORDER only stays standard discovery, and has
>> no bearing whatsoever on Karl's ability to
>> invoke FOIA, coupled with newly found evidence.
>> This is a good place to force the effect intended
>> by Rule 201(d): mandatory judicial notice.
>
>I think you are correct that this order should not prevent FOIA from
>proceeding. Clearly FOIA is not a discovery request at all, it is a
>statutory procedure for members of the general public (neither
>specially including nor excluding litigants) to obtain records
>maintained by the federal government, and maintains no exception for
>a PROTECTIVE ORDER to my knowledge.
>
>> Karl can honestly say he did not learn about
>> these Agreements until AFTER the law suit was
>> filed, and these same Agreements have an enormous
>> bearing on the case, in part because we can challenge
>> IRS for not being a part of the U.S. Treasury.
>> See Title 31, U.S.C., for details.
>
>Fair enough.
>
>> Can you communicate to Karl that his case
>> is about to sink into oblivion, unless
>> he gets moving? At very least, he should
>> also request a continuance, until his new
>> counsel can come up to speed, whoever the
>> new counsel might be.
>
>You and I are both communicating by the same device, Paul. FWIW, no
>hearing has been scheduled at this time, to my knowledge, for which a
>continuance might be sought. He could ask for enlargement of time to
>file his answer brief, which may well be advisable.
>
>> There comes a time when I have to let a
>> client go his own way, if he does not want
>> to go with any of my suggestions. I have
>> not heard from him in the past 3 days,
>> so I am not encouraged by this silence.
>
>Do not conclude anything by this: Karl is traveling the country, and
>it is difficult for him to keep in touch. You and I are both
>presumably providing him with the best advice we are able, and he
>will make his determinations as to how he will proceed. No deadlines
>have been lost as yet, though we're certainly cutting things real
>close. Don't panic. Much.
>--
>Mike Goldman <whig@pobox.com>
>"I am, therefore I think." -- Dehors
>
>
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Paul Andrew Mitchell : Counselor at Law, federal witness
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