NO 94-1257
______
IN THE
SUPREME COURT OF THE
UNITED STATES
October Term, 1994
In Re: JAMES CONSTANT,
PETITION FOR EXTRAORDINARY WRIT
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR EXTRAORDINARY WRIT
James Constant
1603 Danbury Dr
Claremont, CA 91711
(909) 624-1801
Pro-per Petitioner
QUESTIONS PRESENTED
1. Whether the Court of Appeals abused its discretion in entering a pre-flhing order, first, on the basis that it made no substantive findings of frivolousness on questions of lack of jurisdiction of the subject matter raised in the contents of petitioner's filings and, second, on the basis that the pre-fihing order is overly broad.
2. Whether the Court of Appeals lacked discretion in entering a pre-filing order, first, on the basis that it had a duty to determine the questions of lack of jurisdiction of the subject matter raised by petitioner and, second, on the basis that a litigant cannot be coerced into accepting counsel rather than proceeding pro-se.
3. Does the pre-filing order violate petitioner's rights of free speech, petition, and due process as guaranteed by the First and Fifth Amendments.
4. Whether this Court should exercise its discretion to issue a writ of prohibition/mandamus to stay the pre-filiing order and to mandate that decisions shall be obtained on questions of jurisdiction raised by the petitioner?
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5. Whether this Court should determine the merits of questions of jurisdiction raised by petitioner, or should, instead, remand the cause to the Court of Appeals to determine such issues?
6. Whether the questions of jurisdiction set forth in Part VII A and B infra shall be the ones for decision?
7. Whether the principle of finality of judgements shall be permitted to compromise the principle of validity ofjudgements.
PARTIES
The judges of the respondent Court of Appeals are named in the caption of APPENDIX A.
Other parties against whom relief is sought are named in APPENDIX C to this petition.
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TABLE OF CONTENTS
Page
OPINION
BELOW
................................................................................................................1
THIS COURT'S JURISDICTION
..........................................................................................1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...............................1
STATEMENT OF THE CASE ...............................................................................................2
.............A. Debtor's Case ........................................................................................................4
.............B. Wife's Case ............................................................................................................4
REASONS
RELIED ON FOR
ALLOWANCE OFTHE WRIT .............................................5
............A. Abuse and Lack of Discretion
.................................................................................6
............B. Lack of Jurisdiction
.................................................................................................7
............C. Separation of Powers
............................................................................................13
............D. Constitutional Rights
..............................................................................................15
CONCLUSION ....................................................................................................................17
APPENDIX
.............A.
COURT OF
APPEALS' ORDER
.......................................................................20
.............B. PETITIONER'S RESPONSE TO COURT OF APPEALS' ORDER
..................24
.............C. HISTORY OF APPEALS
..................................................................................50
.............D. STATUTES INVOLVED
...................................................................................56
iv
TABLE OF AUTHORITIES
Cases .................................................................................................................................Page
Andrews v. Bechtel Power Corp.
(CAl 1985), 780 F2d 124,137. cert. den.
106 SCt 2896, 476 US 1172, 90 LEd2d 983 ........................................................................7
Banker's Ljfe & Casualty Co. v. Holland
(1953) 346 US 379,98 LEd 106,74 SCt 145 ........................................................................7
Barenblatt v. United
(1959) 360 US 109 ...........................................................................................................15
Chicot County v. Baxter State Bank
(1940)60 SCT317, 308 US 371, 84 LED 329 ..............................................................8,14
Christianson v. Colt Industries
(1988) 108 SCT 2166, 100 LEd2d 811 ........................................................................... 4
De Long v. Hennesy
(CA9 1990) 912 F2d 1144,1148 .....................................................................................6
Dennis v. United States
(1951) 341 US 494 .......................................................................................................15
Durfee v. Duke
(1963), 84 SCt 242. 247 n. 12,
375 US 106, 114 n. 12, 11 LED2d 186 ..........................................................................9
Grubb v. Public Utilities Comm 'n
(1930) 50 SCT 374, 281 US 470. 74 LEd 972 ..............................................................8
Gulfst ream Aerospace Corp. v. Macayamas Corp.
(1988 US) 99 LEd2d 296, 108 SCt 1133 .....................................................................7
La Buy v. Howes Leather Co.
(1957) 1 LEd 290,297 ................................................................................................10
Roche v. Evaporated Milk Asso.
(1943)319US21, 87LEd 1185,63 SCt938 ...................................................................7
v
TABLE OF AUTHORITIES - Continued
Cases .....................................................................................................................Page
Schaefer v. United States
(1920) 251 US 466 .................................................................................................15
Schenk v. United States
(1919) 249 US 47 ..................................................................................................15
Schlagenhauf v. Holder
379 US 104, 13 LEd2d 152, 85 SCt 234 ................................................................7
Stoll v. Gottlieb
(1938) 59 SCT 134, 305 US 165, 83 LEd 104 .......................................................8
Swft v. Tyson
(1842) 41 US 1-24 ...............................................................................................14
U.S. v. U.S. Fidelity & Guar Co.
(1940) 60 SCT 653,657, 309 U.S.506,514 ...........................................................9
U.S. v. Warner
(CA8 1970), 428 F2d 730, cert. den.91
SCt 194, 400 US 930,27 LEd2d 191 .....................................................................7
U.S. Alkali Export Asso. v. U.S.
(1945) 325 US 196, 89 LEd 1554,
65SCt1120 ...........................................................................................................7
Will v. Calvert Fire ins. Co.
(1978), 437 US 655, 57 LEd2d 504,
98 SCt 2552, on remand (CA 7)
586F2d12 .....................................................................................................11,13
Will v. United States
(1967) 389 US 90, 19 LEd2d 305,
88SCt269 ..........................................................................................................7
vi
UNITED STATES CONSTITUTION
.....................................................................................................................Page
First and Fifth Amendments
.............................................................................15
OTHER AUTHORITIES
Restatement (Second) of Judgements 12 ..........................................8,10,11,14
Wright, Miller & Cooper Fçderal Procedure
and Practice Jurisdiction 2d 3536 footnote 2 ................................................12
Wall Street Journal 27, May, 1993 ................................................................16
STATUTES
11
USC 544(b)
........................................................................................1,4,15
28 USC 157(b)(2)(B),(C) .................................................................1,2,9,10,13
28 USC 157(b)(2)(H)
..........................................................................1,9,10,13
28 USC 1334
..........................................................................................1,13,15
28 USC 1331,1338,1343
.............................................................1,2,9,10,13,15
28 USC 1651
....................................................................................................1
28 USC 1654
....................................................................................................7
28 USC 1962
.........................................................................................1,3,5,13
35 USC 261
...................................................................................1,3,4,5,13,15
CIVIL RULES
12(h)(3)
........................................................................................1,10,13,14,15
54(b)
..............................................................................................1,9,13,14,15
60(b)
..............................................................................................................10
vii
CALIFORNIA CODES
...................................................................................................................Page
695.010
.........................................................................................................4
3409.04 and 3405.05
....................................................................................5
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PETITION FOR EXTRAORDINARY WRIT TO THE COURT OF APPEALS FOR THE NINTH CIRCUIT
Petitioner James Constant petitions this Court to issue a writ of prohibition and mandamus to the respondent Court of Appeals, and shows as follows:
OPINION BELOW
The Court of Appeals Order entered on 20 October, 1994 appears in APPENDIX A to this Petition.
THIS COURT'S JURISDICTION
Authority to grant the writ of prohibition/mandamus, sought by petitioner herein, is conferred on this Court by the provisions of Section 1651(a) and (b), Title 28, United States Code, and Rule 20 of the Rules of this Court.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
First Amendment (freedom of speech and petition); Fifth Amendment (due process);jurisdictional statutes 28 USC 1338, 28 USC 1331,28 USC 1343,28 USC 1334,28 USC 157 (b)(2) (B),(C),(H), 11 USC 544(b); Civil Rules 12(h)(3) and 54(b); judgement lien statute 28 USC 1962; and patent statute 35 USC 261 are set forth in APPENDIX D.
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STATEMENT OF THE CASE
In earlier cases petitioner's 3 complaints for patent infringement and I complaint for lack of jurisdiction of the subject matter were dismissed on issues of defense and procedure. No patent claims or claims for lack of jurisdiction of the subject matter were actually litigated and expressly determined. in 1989, as a result of demands by creditors in earlier cases, petitioner filed for bankruptcy during which he initiated four adversary proceedings against creditors and judges involved in earlier cases (hereafter "debtor's case"), and the bankruptcy trustee initiated one adversary proceeding against debtor's wife (hereafter "wife's case").
As debtor in his bankruptcy case, petitioner initiated nine appeals. A list of appeals, subject matter jurisdiction and list of adverse parties appears in APPENDIX C. Claims of lack of jurisdiction were raised by debtor in the Bankruptcy and District Courts and in the nine appeals in the Court of Appeals. Thus, debtor initiated a suit against creditors and others under a bankruptcy statute (objections to creditor's money claims and counterclaims against creditors) alleging inter alia lack of jurisdiction of the subject matter'. Creditors defended on grounds
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1. Specific allegations include (1) a patent law defense of patent invalidity is not a claim for purposes of jurisdiction under 28 USC 1338 and a defense or procedure is not a claim under 28 USC 1331 and 1343 in earlier cases; and (2) a defense of res judicata is not a claim for purposes ofjurisdiction under 28 USC 157 (2)(b)(B) and (C) and a defense or procedure is not a claim under 28 Usc 1331 and 1343 in debtor's case.
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of res judicata. And, in debtor's case, debtor opposed the enforcement of creditor's money judgement against his United States Patents; and debtor brought a motion to intervene in wife's case; and, in wife's case, debtor brought an appeal from an order transferring 22 United States patents from debtor's wife to the bankruptcy trustee, in each instance alleging inter alia lack of jurisdiction of the subject matter2.
The Court of Appeals affirmed the District Court's dismissals on issues of defense or procedure in all nine appeals. No claims raised by the debtor, including claims for lack of jurisdiction of the subject matter, were actually litigated and expressly determined in the courts below.
On 28 September, 1994 the Court of Appeals sua sponte ordered the debtor to respond and show cause why he should not be barred from filing notices of appeal and petitions if he proceeds pro-se. The order does not apply if the debtor has counsel or the lower court certifies that the appeal is not frivolous.
Debtor's response contains specific allegations that the Court of Appeals lacked jurisdiction of the subject matter in all nine appeals. A copy of debtor's response appears in APPENDIX B and is essential to an understanding of the instant peti-
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2. Specific allegations include (1) patent statute 35 USC 261 bars the jurisdiction of a court to assign or to void the assignment of United States patents by operation of California State law; and (2) judgement lien statute 28 USC 1962 bars the jurisdiction of a court to hear a suit to assign or to void the assignment of United States patents by operation of California state law.
4
tion.
On 20 October, 1994 the Court of Appeals issued its pre-fihing review Order APPENDIX A. In issuing its order, the Court of Appeals again refused to determine the questions of lack of jurisdiction of the subject matter raised by the debtor.
The following questions were raised by debtor in the original complaint or motion, in the nine appeals, and in his response to the pre-filing order:
A. Debtor's Case
1. Whether the authority in Christiansen v. Colt Industries (1980) 108 SCt 2166, 100 LEd2d 811 supports debtor's allegations that the courts lacked jurisdiction of the subject matter in earlier cases and in debtor's case (see footnote 1 supra).
2. Whether patent statute 35 USC 261 bars the jurisdiction of a court to assign debtor's United States patents to a U.S. Marshall by operation of California state law (see footnote 2 supra).
3. Whether California state law Calif. Code 695.010 applies to debtor's patents for the enforcement of creditor's postpetition money judgement.
B. Wife's Case
1. Whether federal patent statute 35 USC 261 is the applicable law under 11 USC 544(b) to void the transfer of United States patents.
2. Whether patent statute 35 USC 261 bars the jurisdic-
5
tion of a court to void the assignment of wife's patents and toassign wife's patents by operation of California state law (see footnote 2 supra).
3. Whether Cal. Code 3409.04 and 3409.05 are inapplicable under 11 USC 544(b) to void the transfer of United States patents.
4. Whether judgement lien statute 28 USC 1962 bars earlier judgement lien creditors (and the trustee who fills their shoes) from bringing suit in California to assign debtor's United States patents and to void and to assign wife's United States Patents.
REASONS RELIED ON FOR ALLOWANCE OF THE WRIT
The relief herein sought is not available, and there is no adequate remedy, in the Court of Appeals or any other court other than this Court for the following reason: all appeals have been finally exhausted. Petitions for certiorari in eight of the underlying nine appeals have been denied by this Court3.
The issues involved in the present proceedings are of ex-
---------------------------------------
3 Petitioner moves the Court to consider underlying Appeal No. 94-55053. whose Petition for Certiorari is now pending before this Court (No. 94-782), as part of the present petition for an extraordinary writ on the ground that the questions of lack of jurisdiction are identical in underlying Appeal No. 93-56266 whose appeals have been exhausted. See APPENDLX C footnote 2.
6
ceptional character and of great public importance of holding courts to their prescribed jurisdictions.
A. Abuse And Lack Of Discretion
Initially, it is noted that the Court of Appeal's pre-fihing order makes no substantive findings of frivolousness. De Long v. Hennesy(CA9 1990) 912 F2d 1144,1148. To make such a finding, a court needs to look at "the number and content of the filings as indicia" of the frivolousness of the litigant's claims. Id. As to the number of filings, a bankruptcy case, unlike the typical civil case, can involve several discrete disputes within it which are disposed of over the course of several years. The nine appeals alleging lack of jurisdiction were discrete disputes within debtor's bankruptcy case. All nine appeals would not have been necessary had the Court of Appeals actually litigated and determined the issue of its jurisdiction raised by the debtor in the first appeal. The Court of Appeals cites no authority for the proposition that nine appeals in a single bankruptcy case axe excessive. As to the content of the filings, since the Court of Appeals did not actually litigate and expressly determine the issue of its jurisdiction raised by the debtor, it has no basis other than its own arbitrary assumption of jurisdiction, as indicia of the frivolousness of debtor's filings.
It is further noted that the pre-filing order is overly broad because it restricts debtor from filing all actions rather than restricting debtor from filing actions which seek to "relitigate issues which he raised in previous cases specifically named". De Long, supra at 1148.
7
Finally, debtor has a statutory right under 28 USC 1654 to self-representation. The Court of Appeals cites no authority for the proposition that it has the power to deprive debtor of his right to self-representation. A necessary part of the right to self-representation is that a litigant, especially in a civil case, cannot be coerced into accepting counsel rather than proceeding pro-se. Neither the court's authority nor duty extend beyond urging debtor to obtain legal counsel. Andrews v. Bechtel Power Corp. (CAl 1985), 780 F2d 124, 137, cert. den. 106 SCt 2896, 476 US 1172, 90 LEd2d 983. See also U.S. v. Warner (CA8 1970), 428 F2d 730, cert. den.91 SCt 194, 400 US 930, 27 LEd2d 191 (Judge cannot insist that defendant obtain counsel or accept appointment of counsel).
B. Lack Of Jurisdiction
The inferior courts must be held to a lawful exercise of their prescribed jurisdiction. Roche v. Evaporated Milk Asso. (1943) 319 US 21, 87LEd 1185, 63 SCt 938; U.S.Alkali Export Asso. V. U.S. (1945) 325 US 196,89 LEd 1554,65 SCt 1120; Banker's Life & Casualty Co. v. Holland (1953) 346 US 379, 98 LEd 106, 74 SCt 145; Will v. United States (1967) 389 US 90, 19 LEd2d 305, 88 SCt 269. See also Schlagenhauf v. Holder 379 US 104, 13 LEd2d 152, 85 SCt 234; Gulfstream Aerospace Corp. v. Macayamas Corp. (1988 US) 99 LEd2d 296, 108 SCt 1133.
In all nine appeals, the Court of Appeal's decisions have refused to actually litigate and expressly determine the issues of lack of subject matter jurisdiction raised by the debtor. Its
8
decisions are based on issues of defense and proceedure without an inquiry into the question of subject matter jurisdiction. Two approaches can be taken to the situation. One is to say that the issue of subject matter jurisdiction remains wholly open and the judgement therefore is indefinitely subject to attack on that ground. This was the traditional view, still adhered to in some decisions, including decisions of this Court. See Restatement (Second) of Judgements 12 Comment b at page 117 and Reporter's Note to Comment b at page 125. The other approach is to say that the issue of subject matter jurisdiction is implicitly resolved by the act of entering judgement. On this view, the entry of judgement is taken as equivalent to actual litigation of the issue of subject matterjurisdiction and hence results in its becoming res judicata. See Id Comment dat page 121 and Reporter's Note on Comment d at page 126. Apparently, it is the "implicitly resolved" approach that is taken by the Court of Appeals.
The rule has been that a court's determination that it has subject matter jurisdiction is res judicata of the issue, if the jurisdictional question actually was litigated and expressly decided. Stoll v. Gottlieb (1938) 59 SCt 134, 305 US 165, 83 LEd 104. However, the result in Chicot County v. Baxter State Bank (1940) 60 SCt 317, 308 US 371, 84 LEd 329 held that a party who does not actually contest the court's subject matter jurisdiction also will be bound by the judgement. The Chicot County case appears to overrule earlier decisions to the contrary. See Grubb v. Public Utilities Comm 'n (1930) 50 SCt 374, 281 US 470, 74 LEd 972 (jurisdiction may be challenged).
9
It is clear that there is a conflict of decisions in the two approaches. The law is not settled on the issue of when ajudgement can be attacked. Indeed, this Court has declared that the prior cases had created "no inflexible rule as to collateral objection". U.S. v. U.S. Fidelity & Guar Co. (1940) 60 SCt 653,657, 309 U.S.506,5 14. Subsequently, collateral attack was permitted in several cases in which the jurisdictional issues were not actually litigated in the first forum. See cases identified in Durfee v. Duke (1963), 84 SCt 242,247 n. 12,375 US 106, 114 n. 12, 11 LEd2d l864. This means that, as here, the courts below need not fulfill the requirements for adjudicating claims under jurisdictional statutes 28 USC 1338,133 1, 1343, and 28 USC 157(b)(2) (B),(C), and (H) and Civil Rule 54(b), the rule for entry of final judgements based on claims, since they only need to render judgements on issues of defense or proceedure and then say that their jurisdiction is implicitly resolved by the act of entering otherwise non-final judgement. If a court's jurisdiction is "implicitly resolved" upon entry of a '~udgement" based on a defense or proceedure then what is the purpose of the jurisdictional statutes and the civil rule for entry of final judgements based on claims? Clearly, what the legislature has done in enacting the jurisdictional statutes (requiring the determination of claims) has been undone by the Court of Appeals in its adoption of the "implicitly resolved" approach (permitting defenses instead of claims for purposes of jurisdiction and entry of final judgements).
----------------------------
4. In Durfee itself the first court's jurisdictional power was contested and actually decided.
10
This Court should grant the writ sought by the debtor and should itself determine the merits of the questions raised by debtor in order to resolve conflicts between the two approaches and to protect its appellate jurisdiction. The issues concern the construction and application of jurisdictional statutes 28 USC 1338,1331,1343, and 28 USC 157(b)(2) (B),(C), and (H) and Civil Rule 54(b). La Buy v. Howes Leather Co. (1957) 1 LEd 290,297 (mandamus should issue to prevent an action under a rule so as to place it beyond the scope of the rule).
When the issue ofjurisdiction is actually litigated and then a failure to seek review of the determination of the issue occurs there is reason to be confident that the public interest in the observance of limitations on jurisdiction has not been substantially violated. Restatement (Second) of Judgements 12 supra at 121. However, failure to seek review does not waive the issue ofjurisdiction, which can be raised at any time. Civil Rules 12(h)(3) and 60(b)(4).
When the issue of subject matter jurisdiction has been only "implicitly resolved" and then is raised through an attack on the judgement it signifies that the adversary system, here repeatedly, has failed to bring forward a highly relevant issue in the original proceeding. It is when the contention of subject matter jurisdiction has some substantial merit, as here, that the application of the rule of res judicata poses a real dilemma. Id.
In the instant petition, the Court of Appeals has refused to litigate the issue at least ten times, in the nine underlying appeals and in its pre-filing review Order APPENDIX A. Indeed,
11
the cause of the pre-fihing review Order and the nine appeals filed by debtor is the repeated refusal by the Court of Appeals to determine the issues of its jurisdiction raised by debtor. There is only one way to find out if debtor's contention of lack of subject matter jurisdiction has some substantial merit, namely, a court must exercise its duty to actually litigate and expressly determine the issue.
The question then is whether this Court shall permit, in the interest of securing conformity to the rules of jurisdiction, the revival of a question that the Court of Appeals should have determined in the first instance. It is clear that if a matter is a duty of the court, a party has a clear and indisputable right to a result so as to support a demand for mandamus. Will v. Calvert Fire Ins. Co. (1978), 437 US 655,57 LEd2d 504,98 SCt 2552, on remand (CA 7) 586 F2d 12.
As formulated by the modern approach, the interests primarily at stake are governmental and societal, not those of the parties. To allow debtor to raise the question of subject matter jurisdiction is in effect to make him a public agent for enforcing the rules ofjurisdiction. See Restatement (Second) of Judgements 12 supra.
In the modem approach, the question reduces to whether the public interest in observance of the particular jurisdictional rule is sufficiently strong to permit a vindication of the rule by a litigant, the debtor, who is deserving of a determination on the issues of subject matter jurisdiction raised by him in the courts below. The public interest is of that strength only if the
12
Court of Appeal's excess of authority was plain or has seriously infringed the jurisdiction of this Court or has infringed a fundamental constitutional protection. Id. All three elements of the public interest are present here.
First, in the courts below, petitioner repeatedly claimed the lack of jurisdiction of the subject matter. If the jurisdiction of a federal court is questioned, the court has the power and the duty, subject to review, to determine the jurisdictional issue. See numerous decisions in Wright, Miller, Cooper, Federal Practice And Procedure, Jurisdiction 2d 3536 footnote 2. The district court's and the appeal court's excess of authority was plain because their decisions were made without an inquiry into the question of subject matter jurisdiction raised by petitioner; Second, this Court's appellate jurisdiction was seriously infringed by the Court of Appeal's usurpation of power; and, Third, debtor's fundamental protections of due process were infringed5.
To summarize the situation, debtor has initiated nine appeals alleging lack of jurisdiction of the subject matter in each appeal. The adverse parties defend on grounds of res judicata and civil rules. Judgements are for the adverse parties without determination of issues of lack of jurisdiction raised by the debtor. The debtor may subsequently attack the judgements using two approaches, first, on the traditional ground that the
--------------------------------------
5As alleged in the complaints in debtor's case, "Judgements in Earlier Cases And in Instant Case Based On Affirmative Defenses Deprive Petitioner's Rights To Be Heard On Claims Of His Complaints".
13
issue of jurisdiction remains wholly open and the judgement(s) therefore are indefinitely open to attack and, second, on the modern ground that res judicata is subject to exception when the policy of the finality ofjudgements is outweighed by other factors, here because the courts below acted in plain excess of their authority, in infringement of this Court's jurisdiction, and in infringement of debtor's fundamental constitutional protections.
C. Separation Of Powers
While debtor raised the issue of the court's lack of subject matter jurisdiction in all complaints and motions in the courts below, and thus has a clear and indisputable right to a result so as to support a demand for mandamus, Will v. Calvert, supra, the principle of finality followed by the Court of Appeals has seriously impaired debtor's right to be heard on his claims, based on jurisdictional statutes and Civil Rule 54(b), and will be fatal to him unless the writ sought for is issued by this Court.
In fact, the principle of finality is judge-made law which therefore violates the doctrine of separation of powers. It eviscerates the intent of jurisdictional statutes 28 USC 1338, 28 USC 1331, 28 USC 1343, 28 USC 1334, 28 USC 157(b)(2) (B),(C),(H), 11 USC 544(b); Civil Rules 12(h)(3) and 54(b); judgement lien statute 28 USC 1962; and patent statute 35 USC 261 because it permits courts to "implicitly resolve" what these statutes explicitly require of every judgement.
Judge-made law tells us that the principle of finality must be balanced against the principle of validity. Thus, if a jud-
14
gement is allowed to stand in the face of the fact that the courtlacked subject matter jurisdiction, then the principle of validity is compromised. On the other hand, if the judgement remains indefinitely subject to attack for a defect of jurisdiction, then the principle of finality is compromised. Judge-made law suggests that the problem is one of selecting which of the two principles is to be given greater emphasis. See Restatement (Second) of Judgements 12 Comment a. However, the principle of finality itself rests on the premise that a court must have jurisdiction of the subject matter i.e., ajudgement does not become final until the jurisdictional statutes and Civil Rule 54(b) are met. As things now stand, courts are permitted to decide cases on issues of defense and then say that their jurisdiction is "implicitly resolved". In this modern approach, the burden is on the parties to raise the issue or waive it contrary to the express language of Civil Rule 12(h)(3), a warning to judges that their judgements will be indefinitely open to attack unless they follow the jurisdictional statues.
The principle of finality is based on the Chicot County case. This Court, speaking through Justice Joseph Story, affirmed explicitly, following Blackstone, that court decisions are not "laws" because the judicial power is not a law-making power, only a power to apply the law so as to do justice in the particular case. Swift v. Tyson (1842) 41 US 1-24. In contrast, the principle of validity is based on the jurisdictional statutes and Civil Rule 54(b) for final judgements. The Chicot County case holding that a party who does not actually contest the court's subject matter jurisdiction also will be bound by the judgement sould be overruled.
15
There is a strong public policy interest in the principle of validity ofjudgements. This public policy is expressed injurisdictional statutes 28 USC 1338, 28 USC 1331, 28 USC 1343, 28 USC 1334, 28 USC 157(b)(2) (B),(C),(H), 11 USC 544(b); Civil Rules 12(h)(3) and 54(b);judgement lien statute 28 USC 1962; and patent statute 35 USC 261. There is no comparable statutory expression of a public policy interest for the principle of finality of judgements. This disparity counsels against permitting the principle of finality to compromise the principle of validity.
D. Constitutional Rights
Freedom of speech6 is not beyond control. Schenck v. United States (1919)249 US 47 (clear and present danger test); Schaefer v. United States (1920) 251 US 466 (bad tendency test); Dennis v. United States (1951) 341 US 494 (clear and probable danger test); Barenblatt v. United (1959) 360 US 109 (balancing test). The issue at bar is whether debtor's filings warrant control under any one of these tests. Since the order to show cause asserts a right to conserve the court's resources, the balancing test is relevant here. This test requires that when the interests and rights of both individuals and the government are at stake, the more necessary right gets the weight.
By its repeated refusals to actually litigate and expressly determine the issue of lack of jurisdiction of the subject matter
------------------------------------
6Similar arguments can be made for the right to petition government and due process.
16
raised by the debtor, the Court of Appeals appears more concerned with the suppression of debtor's views and opinions on the issue than it is with its responsibility to conserve its resources. The court's resources could have been conserved had it resolved the issue of its jurisdiction raised in debtor's first appeal. While constitutional guarantees of individual rights do not include the right to consume the court's resources they do include the right to a fair trial and to be heard on all claims of a complaint or motion, including claims for lack of jurisdiction.
Moreover, the pre-filing order implies the proposition that conservation of the court's resources will benefit other litigants more deserving than debtor and thus is a strong right which must be balanced against debtor's constitutional rights. This view ignores the quality ofjustice being dispensed by the court. If the quality of justice is zero, as it is in the present case, no litigant will benefit and debtor's constitutional rights are zero. All governments, including authoritarian ones, claim a right to conserve their resources. Free governments are distinguished because they base their rights on the quality of justice they dispense. Without justice, the emperor has no clothes. Nowdays. it is well known that the American legal system is extremely inefficient and that the chance of a deserving plaintiff's prevailing in the justice system is considerably less than the odds of flipping a coin'. This general result is supported in the in-
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7The breakdown in the legal system is chronicled in a number of publications, too numerous to cite here. For example, see remarks by ex vice-president Dan Quayle "fewer than 8% of the lawsuits filed make it to trial the current system is a lottery that takes 5 or 10 years ... costs too much to resolve disputes in our legal system". Wall Street Journal, 27 May, 1993.
17
stant case by nine appeals all of which the court refused to actually litigate and expressly determine the questions of jurisdiction of the subject matter, even though it was the court's duty to do sos. Accordingly, the court's right to conserve its resources is a transparent one that does not rise to constitutional dimension. Debtor's right therefore to be heard on his claims outweighs the court's right to conserve its resources.
CONCLUSION
Wherefore, petitioner prays that this Court issue a writ of prohibition! mandamus to said Court directing it to stay its prefiling order and to decide the issues of its jurisdiction raised by the petitioner in the nine appeals filed therein. Or, this Court should decide the questions presented by the petitioner. Petitioner further prays that this Court grant petitioner such other and further relief as it may deem to be just and equitable.
Dated: January 11, 1995
Respectfully submitted
James Constant
1603 Danbury Drive
Claremont, CA 91711
(909) 624-1801
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8Debtor's ordeal in the legal system began in 1985 when he filed a suit against creditors for patent infringement.
(pages 18-20 left blank)
21 APPENDIX A
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
(filed 20 October,1994)
In re: JAMES CONSTANT, .............................) No. 94-803 18
.................Respondent.....................................
) ORDER
)
Before: BROWNING, FARRIS and LEAVY, Circuit Judges
On September 28, 1994, this court issued an order directing respondent James Constant to respond and show cause why this court should not enter the following pre-filing review order. This court has reviewed and considered the response to the order to show cause, and hereby enters the following pre-fi]ing review order.
Respondent's failure to comply with the order shall result in any new appeal(s) he seeks to file being dismissed or not being filed and other sanctions being levied against respondent, such as a monetary judgement or a judgement of contempt, as the court may deem appropriate. The Clerk shall accept no further filings in this closed docket.
Pre-Filing Review Order
1. This pre-filing review order shall apply to all notices of appeal and petitions for extraordinary writs filed by respondent, in whole or in part, if he proceeds pro Se. This order shall not apply to appeals or petitions in which respondent has coun-
APPENDIX A 22
sel or where the district court has certified in its order that theappeal or petition is not frivolous. Should respondent fail to comply with any of the provisions of this pre-fihing review order, the Clerk shall not file the document and shall return the document to respondent, informing him of the deficiencies and granting him 14 days to coirect the deficiency.
2. Each notice of appeal or petition filed by respondent shall comply with the requirements of the Ninth Circuit Rules and the Federal Rules of Civil and Appellate Procedure, especially Federal Rule of Civil Procedure 54(b) and Federal Rule of Appellate Procedure 4(a), and shall contain the following sentence in capital letters "THIS NOTICE OFAPPEAL/PETITION IS FILED SUBJECT TO PRE-FILING REVIEW ORDER No. 94-80318" in the body of the notice of appeal or petition.
3. Each of respondent's future notices of appeal and petitions shall include a copy of the order(s) of the district court from which he is appealing, a short and plain statement of the facts or law on which he will rely for the purposes of the appeal, and a statement that he has not previously appealed this order or raised this issue in a prior appeal or petition.
4. If respondent's future notices of appeal and petitions are submitted in compliance with this order, the Clerk shall lodge the notice of appeal or petition and accompanying documents. The Clerk shall not file the appeal or petition or establish a presumptive schedule for the certificate of record, briefing, or transcripts except upon further order of the court.
PSMoCa1 10/1 7/94/sg 14-15
23 APPENDIX B
UNITED STATES COURT OF APPEALS FOR TIlE
NINTH CIRCUIT
Inre: JAMES CONSTANT, ..............................) No. 94-80318
.........................Respondent..............................
)
...........................................................................) RESPONSE
Before: Peter L. Shaw,
Appellate Commissioner
RESPONSE TO ORDER TO SHOW CAUSE
As a first showing of cause, the Court's proposed injunction to require the respondent to have a lawyer violates respondent's First Amendment right to petition the Court. As officers of the Court. no lawyer will risk his practice before the Court to argue, as respondent does, that federal judges make judgements through fraud in the administration ofjustice, without jurisdiction, and in violation of respondent's constitutional rights.
As a second showing of cause, more fully detailed in the cases at bar, the Court's judgements were obtained through fraud in the administration of justice, without jurisdiction, and in violation of respondent's constitutional rights. Respondent's claims in cases at bar were never reached on the merits and all cases were decided on issues of affirmative defenses and procedure. A court's jurisdiction rests on claims of the complaint(s) not on issues of defense or procedure. Christianson v. Colt Industries (1988) 108 SCt2166, l00LEd2d 811.
APPENDIX B 24
TABLE OF CONTENTS
Page
RESPONSE TO ORDER TO SHOW CAUSE
.....................................................................23
STATUTORY PROVISIONS INVOLVED
..........................................................................29
STAThMENT OF THE CASE
..............................................................................................29
REASONS FOR CONSIDERING THE ISSUES OF
JURISDICTION
RAISED BY THE DEBTOR ..............................................................................................................................32
A. Civil Rule 12(h)(3)
Requires That
A Court Must Decide A Question of
Jurisdiction Before It ..........................................................................................................34
B. The Court Lacks
Jurisdiction To Decide
Debtor's Case on Affirmative Defenses
of Patent Invalidity And Res Judicata ..............................................................................35
C. Patent Statute 35 USC
261 Bats the
Jurisdiction of A Court To Assign
Patents Or To Void The Assignment
of United States Patents By Operation
Of California State Law ..................................................................................................36
D. Judgement Lien
Statute 28 USC 1962
Bars The Jurisdiction of A Court To
Hear A Suit To Assign Patents Or to
Void The Assignment of United States
Paptents By Operation Of California
Sate Law ........................................................................................................................39
E. Conflicts Of
Decisions On
Jurisdiction 40
(a) Courts Must Decide Questions
On Jurisdiction Before Them .......................................................................................40
(b) Courts Lack Jurisdiction To Decide
Debtor's Claims On Affirmative Defenses of
Patent Invalidity And Res Judicata ............................................................................42
25 APPENDIX B
TABLE OF CONTENTS (CONTINUED)
Page
(c) Courts Lack Jurisdiction To Assign
Patents And to Void The Assignment of
United Staes Patents By Operation
Of California State Law ...............................................................................................42
(b) Courts Lack Jurisdiction To Hear
Suits to Assign Patents And to Void
The Assignment of United Staes Patents
By Operation Of California State Law ........................................................................43
CONCLUSION
...........................................................................................................45
APPENDIX
..................................................................................................................46
APPENDIX B 26
TABLE OF AUTHORITIES CITED
Cases
.........................................................................................................................Page
Alexander v. Allister
(ND Ill 1976) 424 F Supp 277
................................................................................
34,41
Allen v. Riley
(1906) 203 US 347 .................................................................................................37,43
Basso v. Utah Power & Light Co.
(CA1O 1974) 495 F2d 906,
18 FR Serv2d 937 ..................................................................................................35,41
Christianson v. Colt Industries
(1988) 108 SCT 2166,
100LEd2d 811 ............................................................................23,31,33,35,40,42,45
Crown Die & Tool Co. v. Nye Tool & Machine
Works(1923) 261 US 24,67 LEd 516,
43 Set 254 ..........................................................................................................37,43
Eisler v. Stritzler
(CAl 1976) 535 F2d 148,
21 FR Serv2d 1380 ...........................................................................................34,41
Filmtec Corp. v. Allied Signal,
Inc. (CAFC 1991) 939 F2d 1568,
1570 n.5 ..........................................................................................................39,44
Geni-Chlor Int'l, Inc. v. Multisonics Dev. Corp.
(CA9 1978) 580 F2d 981,
200 USPQ 67 ................................................................................................37,43
Joyce v. United States
(CA3 1973) 474 F2d 215 .............................................................................35,41
International Wdeo Corp. v. Ampex Corp.
(CA 1973) 484 F2d 634, 179 USPQ 260,
17 FR Serv2d 1240 ......................................................................................35,41
27 APPENDIX B
TABLE OF AUTHORITIES CITED (Continued)
Cases ............................................................................................................Page
Louisville & N.R. Co. v. Mottley
(1908) 211 US 149,53 LEd
126, 29 SCt 42 ...........................................................................................35,41
New York, v. Waterfront Airways,
Inc. (SD NY 1985) 620 F Supp 411 ..........................................................34,41
Re Mellor
(CA9 1984) 734 F2d 1396,1941 ...............................................................39,43
Re Peregrine
(BC CD Cal. 1990) 116 BR
194, 206 footnote 17 ............................................................................36-38,43
Re Transportation Design
(BC SD Cal 1985) 48 BR 635, 639-40 ................................................36,37,43
Re Velikoplejki
(BC SD Fla 1985) 54 BR 534, 538 ...............................................................37
Rice v. Rice Foundation
(CA7 1979) 610 F2d471 .........................................................................34,41
Sadat v. Mertes
(CA7 1980) 615 F2d 1176,
54ALRFed401 ........................................................................................34,41
Unarco Industries, Inc. v. Kelley Co.
(CA7 1972) 465 F2d 1302, 1305-06 .....................................................37,43
Velez v. Crown Life Ins. Co.
(CAl 1979) 599 F2d471 ........................................................................34,41
Wymard v. McCloskey & Co.
(CA3 1965) 342 F2d 495 cert.
den. 382 US 823, 15 LEd2d 68,86 SCt 52 ...........................................34,41
APPENDIX B 28
OTHER AUTHORITIES
Page
4 Wright & Miller, Federal Practice and
Procedure 1071, at 429-30 (1987) ........................................................39,44
Moore's Federal Practice 2d ed.1994
12-237 n.21, 12-239 n.23 ......................................................................34,41
US LEd Digest, Courts 232. 291 ...........................................................37,44
Wright, Miller & Cooper Federal Procedure
and Practice Jurisdiction 2d 3536
footnote 2 ..............................................................................................34,40
STATUTES
11 USC 544(b)
...........................................................................30,33,39,40
28 USC 157(b)(2)(B),(C)
................................................................29,30,36
28 USC 157(b)(2)(H)
...........................................................................30,31
28 USC 455(a) ..........................................................................................45
28 USC 1334
..................................................................................29-31,36
28 USC 1331, 1338, 1343
........................................................................35
28 USC 1962
..............................................................29-33,35,39,40,43,44
35 USC 261
...............................................................29,31-33,36-40,42-45
CIVIL RULES
12(h)(3) ............................................................................29,32,34,40,41,45
CALIFORNIA CODES
695.010
..........................................................................................32,42,43
3409.04 and 3405.05
......................................................................32,33,42
29 APPENDIX B
As a third showing of cause, more fully detailed in the cases at bar and hereinbelow, the Court lacks jurisdiction of the subject matter in each case at bar. Judges who decide cases in the clear absence of jurisdiction violate their oaths of office and are liable under the criminal laws. The Court's proposed injunction appears to be an attempt to silence the respondent for having brought suits against judges of this circuit claiming fraud in the procurement of judgements, lack of jurisdiction, and violations of constitutional rights. See Appeal Nos 92-55891, 92-56045, and 92-55995.
STATUTORY PROVISIONS INVOLVED
Jurisdictional statutes 28 USC 1334,28 USC 157(b)(2) (B),(C),(H); 11 USC 544(b); Civil Rule 12(h)(3); judgement lien statute 28 USC 1962; and patent statute 35 USC 261 are set forth in APPENDIX A.
STATEMENT OF THE CASE
Respondent initiated the stated appeals as a debtor in his bankruptcy case. Before the petition for bankruptcy was filed, debtor was the owner of 8 patents and debtor had assigned 22 patents to his wife pursuant to patent statute 35 USC 261 governing the assignment of United States Patents and voidance thereof. Three of debtor's patents were found invalid by the district court (hereafter "pre-petition cases") and unsecured creditors obtained a pre-petition judgement lien against the debtor pursuant to 28 USC 1962 and demanded debtor's patents, his only assets, as payment. Debtor filed for bankruptcy and filed the actions at bar. Debtor's 8 patents were abandoned
APPENDIX B 30
to debtor by the bankruptcy court as having no value. In the district court, unsecured creditors obtained a post-petition judgement lien against debtor and demanded debtor's patents as payment, and the district court assigned debtor's 8 patents to the U.S. Marshall under California state laws. The bankruptcy trustee brought suit against debtor's wife to recover wife's patents; and the bankruptcy court voided the assignment and assigned wife's 22 patents to the bankruptcy trustee under California state laws. On appeals, this Court affirmed.
In the courts below and in this Court. debtor argued that the courts lacked jurisdiction, first, to decide pre-petition cases and cases at bar on creditor's affirmative defenses, second, to assign debtor's patents to the U.S. Marshall under California state laws, third, to void the assignment of wife's patents and to assign wife's patents to the trustee under California state laws and, fourth, that judgement lien statute 28 USC 1962 does not apply to patents and thus bars pre-petition judgement lien creditors (and the trustee who fills their shoes under 11 USC 544(b)) from bringing suit in California to assign and to void the assignment of United States patents by operation of California state laws.
In debtor's cases1, the bankruptcy court had jurisdiction pursuant to 28 USC 1334 [Bankruptcy Cases and Proceedings], and 28 USC 157(b)(2)(B) and (C) [Allowance or
---------------------------------
1Appeal Nos 92-55465,92-56220, 92-56475,92-55891, 92-56045,92-55995 (hereafter "debtor's cases").
31 APPENDIX B
dissallowance of claims against the estate; counterclaims by the estate]. As argued by debtor, first, the Supreme Court has ruled that courts lack jurisdiction to decide claims of complaints on issues of affirmative defense (patent invalidity in pre-petition cases; res judicata in debtor's cases). Christianson v. Colt industries (1988) 108 SCt 2166, 100 LEd2d 811, second, that patent statute 35 USC 261 bars the jurisdiction of a court to assign debtor's patents to a U.S. Marshall by operation of California state law and, third, judgement lien statute 28 USC 1962 does not apply to patents and thus bars the jurisdiction of a court to hear a suit by unsecured creditors to assign debtor's patents in California. ~ Appeal No. 92-56475.
In wife's cases2, the bankruptcy court had jurisdiction pursuant to 28 USC 1334 [Bankruptcy Cases and Proceedings], 28 USC 157(b)(2)(H) [Proceedings to Determine, Avoid, or Recover Fraudulent Conveyances), and 11 USC 544 [trustee may avoid transfer of property]. The trustee's action was brought under 11 USC 544(b) which provides that the trustee may avoid any transfer by debtor "that is voidable under applicable law"3. As argued by the debtor, first, the applicable non-bankruptcy law under 11 USC 544(b) is federal patent statute 35 USC 261 governing the assignment and the voiding of assignment of United States patents, second, that patent statute 35 USC 261 bars the jurisdiction of a court to void the assignment of wife's
----------------------------------
2 Appeal Nos 93-56266, 94-55053 (hereafter "wife's cases").
3 Subsection 544(b) limits the trustee to the rights of actual unsecured creditors to void transfers "under applicable law".
APPENDIX B 32
United States patents and to assign wife's patents by operation of California State law, third, that California state laws Cal. Codes 3439.04 and 3439.05 are inapplicable under 11 USC 544(b) because the voiding of assignment of United States patents is governed by patent statute 35 USC 261 and, fourth, judgement lien statute 28 USC 1962 does not apply to patents and thus bars the jurisdiction of a court to hear a suit by unsecured creditors (and the trustee) to void the assignment of and to assign wife's United States patents in California.
This Court failed to consider the issues of jurisdiction raised by debtor and affirmed solely on issues based on affirmative defenses (Appeal Nos 92-55465,92-56-220,92-55891, 92-56045, 92-55995), California state laws (Appeal No 92-56475), and issues of procedure (wife's cases).
REASONS FOR CONSIDERING THE ISSUES OF JURISDICTION RAISED BY THE DEBTOR
This Court's assumption of jurisdiction in the cases at bar, without determination of issues on jurisdiction raised by debtor, confficts with previous decisions of the Supreme Court. with the decisions of other Circuits, and with decisions of this Court and courts in this Circuit.
The following points of law raised by debtor were not determined by the Court:
1. Whether Civil Rule 12(h)(3) requires a court to determine the jurisdictional issue raised by the debtor.
33 APPENDIX B
2. Whether courts lack jurisdiction to invalidate debtor's pre-petition patents on the issue of defense of patent invalidity and to decide debtor's cases on the issue of defense of res judicata. Christiansen, supra.
3. Whether patent statute 35 USC 261 bars the jurisdiction of a court to assign debtor's United States patents to a U.S. Marshall by operation of California state law.
4. Whether California state law Calif. Code 695.010 applies to debtor's patents for the enforcement of creditor's postpetition money judgement.
5. Whether federal patent statute 35 USC 261 is the applicable non~bankruptcy law to void the assignment of United States patents under 11 USC 544(b).
6. Whether patent statute 35 USC 261 bars the jurisdiction of a court to void the assignment of wife's patents and to assign wife's patents by operation of California state law.
7. Whether Cal. Code 3409.04 and 3409.05 are inapplicable under 11 USC 544(b) to void the transfer of United States patents.
8. Whether judgement lien statute 28 USC 1962 bars pre-petition judgement lien creditors (and the trustee who fills their shoes) from bringing suit in California to assign debtor's United States patents and to void and to assign wife's United states Patents.
APPENDIX B 34
A. Civil Rule 12(h)(3) Requires That A Court Must Decide A Question Of Jurisdiction Before It
Civil Rule 12(h)(3) permits raising ajurisdictional question at any time by suggestion of a party or non-party.
If the jurisdiction of a federal court is questioned, the court has the power and the duty, subject to review, to determine the jurisdictional issue. See numerous decisions in Wright, Miller, Cooper, Federal Practice And Procedure, Jurisdiction 2d 3536 footnote 2. A party may always suggest that the court lacks jurisdiction. Moore's Federal Practice 2d ed. 1994 12-237 n.21. The court at any stage of the proceedings has a duty to raise such a defect on its own initiative. Id 12-239 n.23. Challenges to jurisdiction may be brought to the court's attention by persons other than parties to the action. New York~ V. Waterfront Airways, inc. (SD NY 1985) 620 F Supp 411. The question whether or not there is subject matter jurisdiction is open to challenge at any time and at any level of adjudication. Sadat v. Mertes (CA7 1980) 615 F2d 1176, 54 ALR Fed 401. Subject matter jurisdiction can be challenged even after judgement. Eislerv. Stritzler (CAl 1976) 535 F2d 148, 21 FRServ2d 1380; Alexander v. Allister (ND 1111976) 424 F Supp 277. An appellate court can consider the question of lack of subject matter jurisdiction even on its own motion and even where the issue was not raised in the district court. Wvmard v. McCloskey & Co. (CA3 1965) 342 F2d 495 cert. den. 382 US 823, 15 LEd2d 68, 86 Set 52; Rice v. Rice Foundation (CA7 1979) 610 F2d 471; Velez v. Crown Life Ins. Co. (CAl 1979) 599 F2d 471. Even the Supreme Court will raise lack of jurisdiction of the
35 APPENDIX B
subject matter on its own motion when the case reaches that late stage. Louisville & N.R.Co. v. Mottley (1908) 211 US 149, 53 LEd 126, 29 SCt42.
Where there is no subject matter jurisdiction, a court has no discretion to ignore lack of jurisdiction. Joyce v. United States (CA3 1973) 474 F2d 215; international Video Corp. v. Ampex Corp. (CA9 1973)484 F2d 634, 179 USPQ 260, 17 FR Serv2d 1240. A court lacking subject matter jurisdiction cannot renderjudgement, but must dismiss the case at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking. Basso v. Utah Power & Light Co. (CA 10 1974)495 F2d 906, 18 FR Serv2d 937.
The Court's decisions at bar were made without an inquiry into the questions of subject matter jurisdiction under Christiansen, supra, patent statute 35 USC 261, and judgement lien statute 28 USC 1962 raised by the debtor. See the specific points of law 1-8 raised by debtor, sup ra.
B. The Court Lacks Jurisdiction To Decide Debtor's Cases On Affirmative Defenses of Patent Invalidity And Res Judicata
In Christianson v. Colt Industries (1988) 108 SCt 2166, 100 LEd2d 811 the Court held that a patent law defense of patent validity is not a claim (cause of action) for purposes ofjurisdiction under 28 USC 1338. The Court also held that a defense or procedure is not a claim under 28 USC 1331 and 28 USC 1343. As alleged in debtor's cases, pre-petition cases were decided on issues of defenses without jurisdiction of the subject matter.
APPENDIX B 36
In debtor's cases, the district court's jurisdiction is under 28 USC 1334, 28 USC 157(b)(2)(B) [allowance or dissallowance of claims] and (C) [counterclaims against perSons filing claims against the estate]. There is nothing in the record of debtor's cases that shows that creditor's claims were judicially determined as allowed or dissallowed or that petitioner's counterclaims against creditor's claims were adjudicated on the actual merits. Debtor's cases were decided on issues of defense (res judicata) without jurisdiction of the subject matter4.
C. Patent Statute 35 USC 261 Bars The Jurisdiction of A Court To Assign Patents Or To Void The Assignment of United States Patents By Operation Of California State Law
Re Peregrine (Bkrtcy. CD Cal 1990) 116 BR 194,205 footnote 16 held that "while it appears that in California ajudicial lien may, in fact, be used to encumber a copyright [or patent], that is only half the task; the court must also determine whether federal law insulates copyrights [or patents] from attachment by state court procedures". As to patents, state law is limited to determining the relative rights of creditors and patent exemptions. Re Transportation Design (BC SD Cal. 1985) 48 BR 635,639-40.
-------------------------
4 The Court's repeated acts without jurisdiction point to gross incompetence or willfull suppression in the cases at bar. Debtor's opinion is that the Court willfully suppressed the cases at bar to cover up debtor's claims of fraud in the procurement ofjudgements, lack ofjurisdiction, and constiwtional violations by federal judges named as defendants in debtor's cases.
37 APPENDIX B
State law may not nullify the patent laws of Congress regulating their transfer. Allen v. Riley (1906) 203 US 347. Federal regulation under 35 USC 261 preempts state law. Re Peregrine (Bkrtcy. CD Cal 1990) 116 BR 194,206 footnote 17. Where federal law excludes state law, the court must apply the federal law. Re Velikoplejki (BC SD Fla 1985) 54 BR 534,538; Re Transportation Design (BC SD Cal 1985)48 BR 635,639-40; Unarco Industries, Inc. v. Kelley Co. (CA7 1972) 465 F2d 1302,1305-06.
Patent statute 35 USC 261 governs the assignment and voidance of assignment of patents. Questions of patent assignments arise under the patent laws. Crown Die & Tool Co. v. Nye Tool & Machine Works (1923)261 US 24,67 LEd 516,43 SCt 254; SCt background US LEd Digest Courts 291; GeniChlor Int'l, Inc. v. MultisonicsDev. Corp. (CA9 1978) 580 F2d 981, 200 USPQ 67.
In Re Peregrine (Bkrtcy. CD Cal 1990) 116 BR 194 the court was faced with the same issue which is now before this Court, i.e., should a creditor have the status of a bona fide purchaser, rather than that of a judicial lien creditor. Creditor Cap Fed argued that the term transfer in section 205(d) of the Copyright Act refers only to consensual transfers. The court rejected this argument
APPENDIX B 38
However, in footnote 17, the court distinguished the Patent Act
The court held that Cap Feds earlier prepetition unperfected security interest in NPI's copyrights is trumped by NPI's hypothetical judicial lien. Id 207.
Debtor's and wife's ownership of patents trumps the creditor's unsecured and unperfectable claim. Creditors are not secured creditors that could have perfected their security interests by filing in the Patent Office. Unsecured, unperfected interests have no claim to title under 35 USC 261. Id 206 footnote 17. Under 35 USC 261 the creditor must have the status of a bona fide purchaser, rather than that of unsecured creditor since 35 USC 261 refers only to consensual transfers.
Judgement lien creditors are not purchasers or mortgagees under 35 USC 261. Re Peregrine (Bkrtcy. CD Cal 1990) 116 BR 194,206 footnote 17. Ajudgement lien creditor is not a
39 APPENDIX B
bona flde purchaser. Re Mellor (CA9 1984)734 F2d 1396, 1941. Accordingly, creditors (and the trustee who fills their shoes) are not entitled to file their pre-petition judgement lien in the Patent Office to assign debtor's patents and to void the assignment of and to assign wife's patents under 35 USC 261. Nor does the trustee have rights under 11 USC 544(b) superior to those of unsecured creditors. Creditors, by bringing their motion to assign debtor's patents (Appeal No. 92-56475), and the trustee, by bringing its suit to assign wife's patents (wife's cases) have obtained rights not otherwise available to creditors or the trustee under patent statute 35 USC 261.
D. Judgement Lien Statute 28 USC 1962 Bars The Jurisdiction Of A Court To Hear A Suit To Assign Patents Or to Void The Assignment of United States Patents By Operation Of California State Law
Nor are creditor's pre-petition and post-petition judgements a lien under 28 USC 1962 that would entitle them (and the trustee who fills their shoes) to bring suits against debtor and wife because patents have no situs for jurisdictional purposes. "Intellectual property, such as patents, is the most intangible form of property", Filmtec Corp. v. Allied Signal, Inc. (CAFC 1991) 939 F2d 1568, 1570 n.5, "with no situs forjurisdictionai purposes", see 4 Wright & Miller, Federal Practice and Procedure 1071, at 429-30 (1987) (rule that jurisdiction can be based on location of property "obviously has no relevance when the debt or obligation is not embodied in a writing at all, as is true of patents").
APPENDIX B 40
Thus, creditors are not even lienholders under 28 USC 1962 because their claims based on their pre-bankruptcy and post-bankruptcy judgement liens do not apply to patents. Accordingly, creditors (and the trustee who fills their shoes) are not entitled to file their judgement liens in a court to assign debtor's patents and to void the assignment of and to assign wife's patents by operation of California state law. Nor does the trustee have rights under 11 USC 544(b) superior to those of unsecured creditors. By bringing their suit to assign debtor's and wife's patents under California law, the creditors and the trustee have obtained rights not otherwise available to creditors under judgement lien statute 28 USC 1962.
E. Conflicts Of Decisions On Jurisdiction
(a) Courts Must Decide Questions On Jurisdiction Before Them
The Court's affirming of decisions at bar were made without an inquiry into the questions of subject matterjurisdiction under Christiansen, supra, patent statute 35 USC 261, and judgement lien statute 28 USC 1962 raised by the debtor. See the specific points of law 1-8 raised by debtor, supra. This is contrary to decisions on jurisdiction of the Supreme Court and other Circuits. See citations in Part A supra. The Court should determine the issue of its jurisdiction in light of Civil Rule 12(h)(3), first, to resolve the conflicts created by the Court's assumption ofjurisdiction and the numerous decisions in Wright, Miller,Cooper, Federal Practice And Procedure, Jurisdiction 2d 3536 footnote 2 (courts lack discretion to ignore questions of juris-
41 APPENDIX B
diction of subject matter under Civil Rule 12(h)(3)), second, to explicitly nile that courts must decide questions of jurisdiction brought to their attention by parties or otherwise and, third, to resolve the conflicts created by the Court's assumption ofjurisdiction and the decisions in Moore's Federal Practice 2d ect 1994 12-237 n.21 (a party may always suggest that the court lacks jurisdiction) and 12-239 n.23 (court at any stage of the proceedings has a duty to raise such a defect on its own initiative); in the decision of New York; v. Waterfront Airways, inc., supra, (challenges to jurisdiction may be brought to the court's attention by persons other than parties to the action); in the decision of Sadat v. Mertes, supra, (the question whether or not there is subject matter jurisdiction is open to challenge at any time and at any level of adjudication); in the decisions of Eisler v. Stritzle,; supra; Alexander v. Alliste, supra, (subject matter jurisdiction can be challenged even after judgement); in the decisions of Wymard v. McCloskey & Co., supra; Rice v. Rice Foundation, supra; Velez v. Crown Life ins. Co., supra, (an appellate court can consider the question of lack of subject matter jurisdiction even on its own motion and even where the issue was not raised in the district court; in the decision of the Supreme Court in Louisville & MR. Co. v. Mottley supra, (even the Supreme Court will raise lack ofjurisdiction of the subject matter on its own motion when the case reaches that late stage); in the decisions of Joyce v. United States, supra; international l4deo Corp. V. Ampex Corp., supra, (where there is no subject matter jurisdiction, a court has no discretion to ignore lack ofjurisdiction) and in the decision in Basso v. Utah Power & Light Co., supra, (a court lacking subject mat-
APPENDIX B 42
ter jurisdiction cannot render judgement, but must dismiss the case at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking).
(b) Courts Lack Jurisdiction To Decide Debtor's Cases On Affirmative Defenses of Patent Invalidity And Res Judicata
The Court relies on issues of defense (patent invalidity and res judicata) for the implied proposition that it has jurisdiction to decide debtor's cases. See Appeal No. 92-55465. This is contrary to the Supreme Court's decision. See Part B, supra . The Court should determine the issue of its jurisdiction, first, in light of Christiansen, supra (courts lack jurisdiction to decide claims on issues of affirmative defense) and, second, to explicitly rule that affirmative defenses are not claims for purposes of a court's jurisdiction.
(c) Courts Lack Jurisdiction To Assign Patents And To Void The Assignment of United States Patents By Operation Of California State Law
The Court relies on Cal. Code 695.010 for the implied proposition that it has jurisdiction to decide debtor's case Appeal No. 92-56475. And, the Court relies on Cal. Codes 3409.04 and 3439.05 for the implied proposition that it has jurisdiction to void the assignment of and to assign wife's patents under state laws. This is contrary to decisions on jurisdiction of the Supreme Court, other Circuits, and courts in this circuit. See citations in Part C supra. The Court should determine its jurisdiction in light of patent statute 35 USC 261, first, to resolve the conflicts created by the
43 APPENDIX B
Court's decisions on jurisdiction and the Supreme Court's decision in Allen v. Riley supra (state law may not nullify the patent laws of Congress regulating their transfer); and the Supreme Court's decisions in Crown Die & Tool, supra, and in US LEd Digest Courts 291, supra, (questions of patent assignments arise under the patent laws), second, to explicitly rule that patent statute 35 USC 261 bars the jurisdiction of a court to assign and to void the assignment of United States patents by operation of state law, third, to resolve the conflicts created by the Court's decisions on jurisdiction and the Seventh Circuit decision in Unarco Industries, supra (where federal law excludes state law, the court must apply the federal law) and, fourth, to resolve the conflicts created by the Court's assumption ofjurisdiction and this Court's decisions in Geni-Chlo, supra (questions of patent assignment arise under the patent laws) and in Re Mello, supra (a judgement lien creditor is not a bona flde purchaser), and the decisions of courts in this circuit in Re Peregrine, supra 205 footnote 16 (court must determine if federal law insulates patents), 206 footnote 17 (judgement lien creditors are not purchasers or mortgagees under 35 USC 261), and Re Transportation Design, supra at 639-640 (state law is limited to determining the relative tights of creditors and patent exemptions).
(d) Courts Lack Jurisdiction To Hear Suits To Assign Patents And To Void The Assignment of United States Patents By Operation Of California State Law
The Court relies on Cal. Code 695.010 for the implied proposition that judgement lien statute 28 USC 1962 permits
APPENDIX B 44
the courts to hear suits by creditors with pre-petition and post-petition judgement liens to assign debtor's patents in Appeal No. 92-56475. And the Court relies on Cal. Codes 3409.04 and 3439.05 for the implied proposition that judgement lien statute 28 USC 1962 permits the courts to hear suits by creditors (or the trustee who fills their shoes) to void the assignment of and to assign wife's patents. This is contrary to decisions of other Circuits. See citations in Part D supra. This Court should determine its jurisdiction in light ofjudgement lien statute 28 USC 1962, first, to resolve the conflicts created by the Court's assumption of jurisdiction and the decision in the Federal Circuit in Filmtec, supra and in the decisions in 4 Wright & Millei Federal Practice and Procedure 1071 at 429-30 (1987) (patents have no situs for jurisdictional purposes) and, second, to explicitly rule that judgement lien statute 28 USC 1962 bars the jurisdiction of a court to hear suits to assign patents and to void the assignment of United States Patents by operation of California state law.
45 APPENDIX B
CONCLUSION
The Court must decide the specific questions of its jurisdiction of subject matter raised by the debtor in light of Civil Rule 12(h)(3), Christiansen, supra, patent statute 35 USC 261, and judgement lien statute 28 USC 1962, see Part E, supra, before it attempts to issue the proposed unconstitutional injunction.
If the Court decides it lacks jurisdiction in the cases at bar, thejudges who have tried these cases may be liable to the debtor for having acted without jurisdiction of the subject matter.
The judges who have tried the cases at bar shall disqualify themselves from deciding the issues showing cause above, as their impartiality might reasonably be questioned. 28 USC 455(a).
dated: 4 October, 1994
Respectfully submitted
James Constant
Respondent
APPENDIX B 46
APPENDIX
28 USC 1334 Bankruptcy Cases And Proceedings
(a) Except as provided in subsection (b) of this section, the district courts shall have jurisdiction of all cases under title 11.
28 USC 157(b)(2) Procedures
(B) allowance or dissallowance of claims against the estate..
(C) counterclaims by the estate against persons filing claims against the estate.
(H) proceedings to determine, avoid, or recover fraudulent conveyances.
11 USC 544(b)
The trustee may avoid any transfer of an interest of the
debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under section 502 of this title or that is not allowable only under section 502 of this title.
Civil Rule 12(h)(3):
Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
47 APPENDIX B
28 USC 1962 Lien
Every judgement rendered by a district court within a State shall be a lien on the property located in such State in the same manner, to the same extent and under the same conditions as a judgement of a court of general jurisdiction in such State
35 USC 261 Ownership; Assignment
. . . . . . .patents, or any interest therein, shall be assignable in law by an instrument in writing. The . . .patentee, or his assigns or legal representatives may in like manner may in like manner grant and convey an exclusive right under his . . . patents . . . An assignment . . .shall be void against any subsequent purchaser or mortgagee for a valuable consideration, without notice, unless it is recorded in the Patent and Trademark Office within three months from the date or prior to the date of such subsequent purchase or mortgage.
(page 48 omitted)
49 APPENDIX C
HISTORY OF APPEALS INITIATED BY PETITIONER
I. DEBTOR'S CASE (INITIATED BY PETITIONER)
Appeals 92-55465, 92-56220, 92-56475,
92-70072 (Consolidated Appeals Opinion)
92-55465. Debtor's Objections to Creditor's Claims Based On Void Judgements Obtained Through Fraud. The Bankruptcy Court Had Jurisdiction pursuant to 28 USC 1334 and 28 USC 157(b)(B) and (C). The Court of Appeals affirmed the District Court's dismissal of the complaint on grounds of res judicata.
92-56220. Debtor's Opposition to Rule 11 Sanctions Request by creditors. The Court of Appeals affirmed the District Court's award of sanctions under Rule 11.
92-56475. Debtor's Opposition to the enforcement of creditor's money judgement under California State laws. The Court of Appeals affirmed the District Court's authority to enforce a money judgement against United States Patents under California State laws.
92-70072. Petition for Rehearing Appeal Nos. 92-55465, 92-56220,92-56475 And Suggestion That Case Be Heard In Banc. The Court of Appeals denied the petition for rehearing and rejected the suggestion for rehearing en banc.
Adverse Parties In Appeal NOS.92-55465, 92-56220,
92-56475 (Creditors)
Corporations: Advanced Micro-Devices, Inc.; AT&T, Paradyne; Fujitsu, Ltd; Fujitsu Microelectronics; FPS, Inc.;
APPENDIX C 50
American Telephone & Telegraph; Hitachi America, Inc.; Analog Devices, Inc.; NEC Electronics, Inc.; Intel Corp.; American Microsystems, Inc.; Gould, Inc.; Texas Instruments, Inc.; Digital Switch, Inc.; Granger Associates, Inc.; Rockwell International, Inc.; TRW, Inc.
Attorney finns: Kane, Dalsimer, Sullivan, Kurucz, Levy, Eisele & Richard; Skjerven, Morrill, MacPherson, Franklin & Friel; Morrison & Foerster; Limbach & Sutton; Sheppard, Mullin, Richter & Hampton; Baker, Mills & Glast; Acker, Underwood & Smith; Fullbright & Jaworski; Spensley, Horn, Jubas & Lubitz; Pretty, Schroeder, Brueggeman & Clark; Hopgoode, Calimafde, Kalil, Blaustein & Judlowe; Blakely, Sokoloff, Taylor & Zafman; Brown & Bain; Romney, Golant, Marten & Ashen; Grossman, Graven, Perry & Block; Munger, Tolles & Olson; White & Durkee; Saltzburg, Ray & Bergman.
Attorneys: Kristin M. Cano; Jonathan R. Ellowitz; Anthony De Alcuaz; Paul Malingagio.
Marcel Hoff, an individual; and
David L. Ray, Bankruptcy Trustee.
Appeals 92-55891, 92-56045, 92-55995
(Consolidated Appeals Opinion)
92-55891.Debtor's Objections to Creditor's Claims Based On Void Judgements Obtained Through Fraud. The Bankruptcy Court Had Jurisdiction pursuant to 28 USC 1334 and 28 USC 157(b)(B) and (C).
92-56045. Debtor's Declaratory Judgements That Statutes
51 APPENDIX C
28 USC 2072,331,137, Civil Rules 11,12(b),41(b),56 and General Order 2241 Are Unconstitutional. The Bankruptcy Court had jurisdiction pursuant to 28 USC 1334 and 28 USC 157(b)(B) and (C).
92-55995. Deprivation of Debtor's Legal And Constitutional Rights, Conspiracy To Obstruct Justice And To Deprive Privileges And Immunities, Neglect To Prevent Conspiracy, And Void Judgements. The District Court had Jurisdiction pursuant to 28 USC 1331 and 28 USC 1343(a)(1) and (2).
The Court of Appeals affirmed the District Court's dismissal of the 3 complaints on grounds of absolute judicial immunity.
Adverse parties in Appeal NOS. 92-55891,92-56045,
92-55995 (Judges)
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1 Cited statutes were used by courts to gain jurisdiction to dismiss prepetition cases and to sanction debtor.
APPENDIX C 52
II. WIFE'S CASE (INITIATED BY BANKRUPTCY TRUSTEE AGAINST DEBTOR'S WIFE)
93-56266. Debtor's Motion To Intervene In Adversary Proceeding By The Trustee Against Debtor's Wife. The Bankruptcy Court had jurisdiction pursuant to 28 USC 1334 and 28 USC 157(b)(H).
94-55053. Debtor's appeal from an order of the Bankruptcy Court transferring 22 Umted States Patents from debtor's wife to the bankruptcy trustee2.
The Court of Appeals affirmed the District Court's dismissal of both appeals on grounds debtor has no standing to appeal.
Adverse Party In Wife's Case:
David L. Ray, Bankruptcy Trustee.
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2 Petitions for certiorari in the underlying appeals have been denied by this Court except for the Petition for Certiorari in underlying Appeal No. 94-55053 which is pending in this Court.
53 APPENDIX D
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Amendment I United States Constitution
Congress shall make no law ... abridging the freedom of speech ... or the right to petition the government for a redress of grievances.
Amendment V United States Constitution
No person shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
28 USC 1338 Patents
(a) The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents . . .
28 USC 1331 Federal Question
The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States.
28 USC 1343 Civil Rights
(a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
(1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42.
APPENDIX D 54
(2) To recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in section 1985 of Title 42 which he had knowledge were about to occur and power to prevent.
28 USC 1334 Bankruptcy Cases And Proceedings
(a) Except as provided in subsection (b) of this section, the district courts shall have jurisdiction of all cases under title 11.
28 USC 157(b)(2) Procedures
(B) allowance or dissallowance of claims against the estate..
(C) counterclaims by the estate against persons filing claims against the estate.
(H) proceedings to determine, avoid, or recover fraudulent conveyances.
11 USC 544(b)
The trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under section 502 of this title or that is not allowable only under section 502 of this title.
Civil Rule 12 Non-Waiver of Jurisdiction of the Subject Matter
(h)(3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
55 APPENDIX D
Civil Rule 54 Judgement Upon Multiple Claims Or Involving Multiple Parties
(b) When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgement as to one or more but fewer than all claims of the parties only upon an express deterrnination that there is no just reason for delay and upon an express direction for entry ofjudgement. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry ofjudgement adjudicating all the claims and the rights and liabilities of the parties.
28 USC 1962 Lien
Every judgement rendered by a district court within a State shall be a lien on the property located in such State in the same manner, to the same extent and under the same conditions as a iudgement of a court of general jurisdiction in such State . . .
APPENDIX D 56
35 USC 261 Ownership; Assignment
. . . . patents, or any interest therein, shall be assignable in law by an instrument in writing. The . . .patentee, or his assigns or legal representatives may in like manner may in like manner grant and convey an exclusive right under his . . . . patents . . . An assignment . . . .shall be void against any subsequent purchaser or mortgagee for a valuable consideration, without notice, unless it is recorded in the Patent and Trademark Office within three months from the date or prior to the date of such subsequent purchase or mortgage.