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)
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Plaintiff – Appellant
] Court for the Northern District of Indiana,
] South Bend Division.
EN BANC CONSIDERATION IS REQUESTED
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 tatutory federal Codes of the United States and the directives of the
9. The District Court's order is reviewable, and mandated as such, in the instant Appeals Court.
JURISDICTION OF THE UNITED STATES DISTRICT
COURT WAS REQUIRED
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").
JURISDICTION OF THIS UNITED STATES COURT OF APPEALS IS REQUIRED
Upon the District Court’s remand, this United States Court of Appeals has
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.
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).
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.”
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
BACKGROUND OF REMOVAL TO THE UNITED STATES DISTRICT COURT
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.
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
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.
THERE ARE ONLY FOUR (4) PROHIBITED REMOVALS OF STATE COURT CASES
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:
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.
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.
Dated: July 31, 2006 ______________________
Dr. Amir H. Sanjari
Self-represented In propria persona, Sui Juris
P. O. Box 789