Memorandum of Law on Jurisdiction of Federal Courts Explaining Why they MUST Take Civil Rights Cases Even though they Arise out of a Domestic Relations Case


(BUT federal courts can NOT modify custody, Alimony, Child Support of Divorce judgments)
Typically you will use the federal action to VOID out orders that denied Due Process and other Civil Rights




Chicago, Illinois

Amir H. Sanjari,                                              ]       Appeal from the United States District        

 Plaintiff – Appellant                                      ]       Court for the Northern District of Indiana,                                                        ]       South Bend Division.   
 Cause No.        06-2986                                 ]       US District Court Case No. 3:06 CV 235                                                                                                   ]      
                                                v.                ]
ALISON GRATZOL,                                          ]
MAX K. WALKER, JR.                                      ]
ELKHART SUPERIOR COURT 5 OF                      ]
            STATE OF  INDIANA                           ]
REX L. REED                                                 ]
                               Defendants - Appellees   ]
and, in re: the support and welfare of the      ]
     parties' minor children (AFS & MRS)           ]





            Comes now the Appellant (Plaintiff/Petitioner in the US District [lower] Court), Amir H. Sanjari, Pro Se, in this matter direct support of responding to the request by this United States Court of Appeals (hereafter referred to as “CA7”) to show the established jurisdiction for review of this cause, and upon the federal questions involved, herein alleges, states, and provides:

1.    On 04/28/2006    Appellant filed his Petition  for Removal and retention against all Appellees.

2.    On  05.15(16).2006 (entered),  the US District Court erroneously issued its remand order.

3.    On 05.25.2006, Appellant timely filed his Rule 59 motion to Amend, Alter Judgment.

4.    On 06.02.2006, Appellant timely filed his verified Cross-Motion in opposition to Appellees' (Respondents') response to his verified Rule 59 motion to amend judgment.

5.    On 07.19.2006 (entered) Appellant filed his Notice of Appeals to CA7 as the lower Court did not timely rule upon the Appellant's Rule 59 motion.

6.    On 07.25.2006, for the convenience this Court of Appeals and so that it may take timely and appropriate action in the instant appeals case, Appellant filed his Motion Requesting the District Court's Preliminary Ruling regarding his 05.25.2006 (Rule 59) Motion to Amend.

7.    To this date, the lower Court has neither ruled upon said Rule 59 motion itself, nor responded to the request for preliminary ruling upon same. In order to prevent further (irreversible) damage and violations by the Appellees of Appellant's rights and liberty, this Court is requested to encourage the District Court to issue its decision regarding said Rule 59 or the request for its preliminary ruling at the earliest. After all, the case before it is simple and clear. The Appellant believes, and indications are that the delay (over 2 months) in ruling on his Rule 59 motion (c.f., the District Court issued its remand order within 2 weeks) is enabling all the Appellees/Defendants to continue to seek and institute further illegal, unconstitutional and violative measures against the Appellant and his liberty (literal).

8.    Additionally, this Court has jurisdiction to review, the lower Court had and has jurisdiction in the removal case brought before it, and it is respectfully requested that the Constitution for the United States (hereafter referred to as “the Constitution”), statutory federal Codes of the United States and the directives of the United States Supreme Court (USSC) are adhered to.

9.     The District Court's order is reviewable, and mandated as such, in the instant Appeals Court.


10.              The District Court has, and had, proper jurisdiction over this cause of action for removal, pursuant to, but not limited to, the following statutory authorities: 15 USC § 1692k(d), and  28 USC 1441(a), 1441 (b), 1441(c), 1441(e); 28 USC § 1443(1), 1443(2), 28 USC § 1446, 28 USC § 1331, 28 USC § 1332, 28 USC § 1343, 28 USC § 1367, and 42 USC §§1981, 1983, 1985(3), 1988.

11.              Moreover, the District Court is an Article III court with the express authority to hear and adjudicate any questions arising under the Constitution, Laws, and Treaties of the United States, including but not limited to the Bill of Rights in total, the Ninth Amendment, the Eleventh Amendment, the original Thirteenth Amendment, the Fourteenth Amendment, the International Covenant on Civil and Political Rights, and the Universal Declaration of Human Rights, with Reservations. See the Article VI Supremacy Clause of the Constitution of the United States of America, as lawfully amended (hereinafter "Federal Constitution").

12.              The District Court  erred in its decision to remand which indicates the ‘wholesale disregard, misapplication, or failure to recognize controlling precedent.”, Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation omitted). Also see: Appellant's Rule 59 motion and  other papers in the instant case, Marshall v. Marshall, 547 U. S. (2006), USSC 04-1544, (“Marshall”), Decided 05.01.2006, *unanimous*, Lance v. Dennis 546 U.S.__(2006), USSC No. 05-555 (“Lance”). Decided 02.21.2006,  Loubser (pro se)  v. Thacker, US 7th Circuit (Indiana) No. 05-3058, (“Loubser”), Decided 03.08.2006, Ankenbrandt v. Richards, 504 U.S. 689 (1992), (“Ankenbrandt”), Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63.”, Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 112 (1936), and also the controlling precedents Thermtron Products, Inc., v. Hermansdorfer, 423 U.S. 336 (1976) (“Thermtron”), and Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988). Also see all case laws therein.

13.              Whereas the federal courts freely “abused” their authority regarding the “judicially created

doctrines” of Rooker-Feldman and domestic relations exceptions (ostensibly the underlying

reasons for the lower Court's order in the instant case to remand), in Marshall the USSC expressly admonishes the lower federal courts for that abuse stating:   

       “we warned that the lower courts have at times extended
"far beyond the contours of the Rooker and Feldman cases, overriding
       Congress' conferral of federal-court jurisdiction concurrent with jurisdiction
       exercised by state courts, and superseding the ordinary application of preclusion
       law pursuant to 28 U. S. C. §1738."
544 U. S., at 283. Rooker-Feldman, we
       explained, is a narrow doctrine”.
       “Last Term, in
Justice Ginsburg's lucid opinion in Exxon Mobil Corp. v. Saudi
       Basic Industries Corp.
, 544 U. S. 280 (2005), the Court finally interred the
       so-called "
Rooker-Feldman doctrine."  And, today, the Court quite properly
       disapproves of the District Court's resuscitation of a doctrine that has
       produced nothing but mischief for 23 years. 
My disagreement with the majority
       arises not from what it actually decides”. ....  “Rather than preserving whatever
       vitality that the “exception” has retained as a result of the Markham dicta,
       I would provide the creature with a decent burial in a grave adjacent to the resting
       place of the Rooker-Feldman doctrine. See Lance v. Dennis, 546 U. S. ,_(2006)
       (STEVENS, J., dissenting) (slip op., at 2–3)
. “ (Emphasis added).

14.              No doubt the USSC would welcome, through entertaining other legal instruments of action, e.g. Writ Of Mandamus (see below), the opportunity to further express its extreme displeasure at lower federal courts' continued “abuse” and disregard of the Constitution, litigants' constitutional rights and the USSC's directions regarding remands and their ostensible underlying reasons of judicially contrived doctrines of Rooker-Feldman and Domestic Relations.   Also see Nesses v. Shepard, 68 F.3d 1003, 1005 (7th Cir. 1995), and Loubser.  “The domestic-relations exception has no generally recognized application as a limitation on federal question jurisdiction; it applies only as a judicially implied limitation on diversity jurisdiction. U.S. v. Johnson, 114 F.3d 476 (C.A.4 (Va.) 1997). cited in” Catz v. Chalker, 142 F.3d 279 (C.A.6 (Ohio) 1998).

15.              Also,  “We hold that the Rooker-Feldman doctrine does not bar plaintiffs from proceeding, and vacate the District Court's judgment.” Lance.

16.              Jurisdiction is determined “by the law of the court’s creation and cannot be defeated by the extraterritorial operation of a [state] statute . . . , even though it created the right of action.” Ibid. Directly on point, the Court has held that federal-court jurisdiction, “having existed from the beginning of the Federal government, [can] not be impaired by subsequent state legislation creating courts of probate.” McClellan v. Carland, 217 U. S. 268, 281. Marshall.


17.              Upon the District Court’s remand, this United States Court of Appeals has complete

jurisdiction to hear and review this appeal, and Appellant has a corresponding and absolute

statutory right to the instant appeal, expressly provided for by Congress via 28 USC § 1447

       An order remanding a case to the State court from which it was removed
        is not reviewable on appeal or otherwise, except that an order remanding
       a case to the State court from which it was removed pursuant to section
       1443 of this title shall be reviewable by appeal or otherwise.
(emphasis supplied)

18.              The statutory term “shall” is beyond debate amongst literally thousands of judicial opinions of this country in reaffirming that it conveys and requires an absolutely mandatory duty.

19.              28 USC § 1447(d) mandates this Court to accept jurisdiction of this appeal challenging remand by the District Court, if the removal included any grounds claimed via 28 USC § 1443 which, in the instant case, it did/does.

20.              The statute, trumping case laws, expressly provides the right for, and indeed imposes the responsibility upon this Court to review on appeal.

21.              In Ankenbrandt, the United States Supreme Court clearly explained: “The Barber Court thus did not intend to strip the federal courts of authority to hear cases arising from the domestic relations of persons unless they seek the granting or modification of a divorce or alimony decree.” (emphasis added). They further added, “By concluding, as we do, that the domestic relations exception encompasses only cases involving the issuance of a divorce, alimony, or child custody decree, we necessarily find that the Court of Appeals erred by affirming the District Court's invocation of this exception.” (emphasis added).   In considering the merits of Thermtron's, as in this instant case also claiming federal subject-matter jurisdiction, the United States Supreme Court further admonished: “We agree with petitioners: The District Court exceeded its authority in remanding on grounds not permitted by the controlling statute.” At this very point, the Court also added Footnote #9, which provides additional instruction herein: “[ Footnote 9 ] Lower federal courts have uniformly held that cases properly removed from state to federal court within the federal court's jurisdiction may not be remanded for discretionary reasons not authorized by the controlling statute. Romero v. ITE Imperial Corp., 332 F. Supp. 523, 526 (PR 1971); Isbrandtsen Co. v. Dist. 2, Marine Engineers Ben. Assn., 256 F. Supp. 68, 77 (EDNY 1966); Davis v. Joyner, 240 F. Supp. 689, 690 (EDNC 1964); Vann v. Jackson, 165 F. Supp. 377, 381 (EDNC 1958).
The above precedents, specifically Ankenbrandt and Thermtron, indicate that
       a)         there is no bar to a Court of Appeals reviewing a District Court's remand order if                       the removal did not fall within the 4 statutory exceptions (see below). Therefore,
                   this Appeals Court has jurisdiction to and must review the District Court's                erroneous remand order in the instant case. And,
       b)         the USSC, in Ankenbrandt, Thermtron, etc, further directs the Court of Appeals to                    reverse the District Court's erroneous remand orders. Similarly, the remand order                       in the instant case must be reversed.

22.               In Things Remembered, Inc. v. Petrarca, 516 U.S. 124 (1995), the United States Supreme Court then further distinguished the differences of claims made under cases alleging either or both of state and federal law: “We observed that a remand order other than the orders specified in subsection [28 USC § 1447] (c) had "no warrant in the law" and could be reviewed by mandamus.

23.              Also see: Cole v. Cole, 633 F. 2d 1083 (CA4 1980); Drewes v. Ilnicki, 863 F. 2d 469 (CA6 1988); and, Lloyd v. Loeffler, 694 F. 2d 489 (CA7 1982). In City Of Chicago v. Intern'l College Of Surgeons, 522 U.S. 156 (1997), the Supreme Court again explained what enables removal in state cases that have been already ongoing: “The whole point of supplemental jurisdiction is to allow the district courts to exercise pendent jurisdiction over claims as to which original jurisdiction is lacking.” In Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381 (1998), the United States Supreme Court reiterated the same principles: “We have suggested that the presence of even one claim “arising under” federal law is sufficient to satisfy the requirement that the case be within the original jurisdiction of the district court for removal. See Chicago v. International College of Surgeons, 522 U.S. ___, ___ (1997) (slip op., at 7-9).” Also see Maris Friedlander, Et Al. v. Burton G. Friedlander, 98-1391 (CA7).


24.              Appellant removed, complaining of various willful, systemic deprivations of fundamental Rights guaranteed by the Federal Constitution, and/or by federal law, and whose deprivations are civil violations of 42 USC § 1983, and also criminal violations of 18 USC §§ 241 and 242.

25.              Within the proceedings of the instant state court, Appellant duly advised the state court judge, and all other parties – multiple times in official writing each – that certain actions and judicial events are now existing, have been done, and are now further threatened against the Petitioner, in clear, unambiguous violations of basic due process, the Federal Constitution, state statutory
law, federal statutory law, the relevant rulings by the high state courts, and/or against the relevant rulings held unanimously by all of the several federal Circuit Courts of Appeals.

26.              The instant petition for warrant of removal inures to the very essence of the enactment and clearly expressed purpose of 28 USC § 1443(1) by Congress, i.e.: to provide a remedy for removal to a United States District Court when a state court litigant “is denied or cannot enforce in the courts of such State a right under any law providing for the equal rights of citizens of the United States, or of all persons within the jurisdiction thereof.”

27.              The instant removal was based upon the express statutory authority of 28 USC § 1443.

28.              Accordingly, 28 USC § 1447(d) provides Appellant with a statutory right of appeal.


29.              Appellant notes for the Court’s convenience that 28 USC § 1443(1) provides for the removal of any and all types of state court cases for violations of equal rights, with the sole exceptions being only the following four (4) types of circumstances, pursuant to 28 USC § 1445:
a)    a civil action against a railroad or its receivers or trustees that arises under certain laws;
b)    a civil action against a carrier or its receivers or trustees that arises under certain laws;
c)    a civil action arising under the workmen’s compensation laws; and,
d)    a civil action arising under section 40302 of the Violence Against Women Act of 1994.

30.              The Appellant’s instant removal to the United States District Court was neither based upon, nor had anything to do with, any of the limited four (4) exceptions to removal listed under 28 USC § 1445.

31.              Therefore, any claims of civil rights violations committed against the Appellant within, and/or by, the instant state court were, and are, perfectly proper grounds for removal to any of the United States District Courts, subject only to consideration of proper venue requirements.

32.              ' In Cohens v. Virginia, Chief Justice Marshall famously cautioned: “It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction, if it should . . . . We have no more right to decline the exercise of jurisdiction which is given,than to usurp that which is not given.” 6 Wheat. 264, 404 (1821).'

33.              Therefore, this Court and the lower Court do have respective jurisdictions and must, in the interest of justice and adherence to the US Constitution and statutes and  the US Supreme Court directions, exercise them accordingly and respectively by  i) this Court reviewing and reversing the erroneous lower Court order to remand, and ii) the District Court considering the Appellant's removal case in its entirety.

                               WHEREFORE, the undersigned Appellant / Petitioner, Amir H. Sanjari, now prays for reversal of remand of removal of the instant state court matter back under the jurisdiction of the United States District Court, also at a minimum for appropriate declaratory and injunctive relief, and to further decide supplementary matters, to hold jury trial to determine the issues in question, and for all other relief just and proper in the premises.

                                                                                    Respectfully Submitted,

Dated:  July 31, 2006                                                   ______________________

                                                                                    Dr. Amir H. Sanjari                                            

                                                                                    Self-represented                                                                                     In propria persona, Sui Juris

                                                                                    P. O. Box 789
                                                                                    Andover, Massachusetts 01810