Tuesday 8/11/98 6:56 PM John Young J Orlin Grabbe Morales courtroom outcome today was perhaps most important for the reason that judge Leroy Hansen dismissed all of the individually-named defendants in Morales' case. Hansen cited a Tenth circuit ruling where individually-named defendants were dismissed. The tenth circuit decision is monumental in that 1 one can only do discovery on individually-named defendants if some opinion is correct. Named parties. Morales and I squeaked by in our NSA lawsuit because US assistant attorney did not complain in time. 2 no one is INDIVIDUALLY to blame. There is only an agency. The LeMay theory is that EVERYONE is to blame. This is after general Curtis. http://www.psispy.com/ufo/people/l/lemay/ The LeMay theory is that if some government is doing something the US government does not like, then the US begins to kill the citizens of the errant government. Doesnt make any difference what citizens. All are treated equal. After the US kills enough citizens, then the errant government stops whatever offended the US. 2 is opposite the LeMay theory. Problem is that few believe this. Disbelivers revert to the LeMay theory. Everyone is to blame. Hence terrorism is justified. The Allahu Akbar crowd has figured-out this. Morales and I are going to ATTEMPT to bring the guilty in our NSA lawsuit to justice. Wish us luck. Later bill UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT William H. Payne ) Arthur R. Morales ) ) Appellants Plaintiffs, ) ) 98-2156 v ) 98-2157 ) Lieutenant General Kenneth A. Minihan, USAF ) Director, National Security Agency ) National Security Agency ) ) Appellees Defendants ) RESPONSE TO MOTION FOR EXTENSION OF TIME TO FILE MEMORANDUM BRIEFS ADDRESSING JURISDICTIONAL ISSUES 1 COMES NOW appellant plaintiffs [Appellants - Plaintiffs] Payne [Payne] and Morales [Morales] pro se litigants to exercise their rights guaranteed under the Constitution and Federal Rules of Appellate Procedure http://www.ca5.uscourts.gov/docs/frap-iop.htm Any party may file a response in opposition to a motion other than one for procedural order [for which see subdivision (b)] within 7 days after service of the motion, ... http://www.ca5.uscourts.gov/docs/frap-iop.htm#27 and FRAP 26c Additional Time after Service. When a party is required or permitted to act within a prescribed period after service of a paper upon that party, 3 calendar days are added to the prescribed period unless the paper is delivered on the date of service stated in the proof of service. http://www.ca5.uscourts.gov/docs/frap-iop.htm#26c MOTION FOR EXTENSION OF TIME TO FILE MEMORANDUM BRIEFS ADDRESSING JURISDICTIONAL ISSUES [MOTION] was served on August 3, 1998 by Jan E Mitchell [Mitchell], Assistant US Attorney by mail. Exhibit A. 2 Mitchell writes The Defendant-Appellee, National Security Agency [1], moves this Court for an Order extending the time to and including twenty-one (21) days following the date Plaintiffs-Appellants file their memorandum brief in which to file it memorandum briefs discussing jurisdictional issue in the above-referenced appeals. ... 3. Defendant-Appellee is not seeking an appeal and therefore, will NOT seek a certification for interlocutory appeal from the District Courts memorandum Opinion and Order entered April 30, 1998, nor will Defendant-Appellee seek an order explicitly adjudicating all remaining claims. 4. On July 22, 1998, Plaintiffs-Appellants were granted an extension until September 1, 1998 to respond to the Courts show cause orders of June 30, 1998. 5 . Defendant-Appellee seeks an additional twenty-one (21) days from the date in which Plaintiffs- Appellants memorandum must be served in which to serve the memorandum briefs. According to the Show Cause Order, if Appellants do not seek and obtain a certification for interlocutory appeal or a final dispositive adjudication concerning appeal N. 9821257, the appeal may be dismissed, in which case a jurisdictional brief would not be required as to that appeal. Should Plaintiffs-Appellants seek and obtain a certification for interlocutory appeal pertaining to No. 2157, in the interest of economy, Defendant-Appellant seeks to file the two memorandum briefs on the two very related jurisdictional issues at one time. 6. Undersigned counsel for Defendant-Appellee has contacted Plaintiff-Appellant William H. Payne who has concurred on his own behalf and own behalf for Plaintiff-Appellant Arthur R. Morales in granting of this motion. ... 3 Payne confirms 6 above in fax Monday 8/3/98 3:41 PM FAX Jan Elizabeth Mitchell Assistant U.S. Attorney U.S. Department of Justice United States Attorney District of New Mexico Post Office Box 607 Albuquerque, NM 87103 505/346-7274 505/766-2868 FAX 505/346-7205 Dear Ms Mitchell: Purpose of the fax is to 1 review points covered in our 8/3/98 14:18 phone conversation 2 suggest settlement. You phoned me today. You told me that you planned to file a motion or response to the Tenth circuits request Morales and my response to the jurisdictional issue on the 21st of August. I told you that this was premature on your part since we had moved for a second time for an extension of time. I told you also that this matter was now before congress. You appeared to indicate to me that you were in the process of adding both Morales and Minihan as named parties in this appeal. You asked me if it would be agreeable to us if you filed a response to the Tenth circuit 21 days AFTER Morales and I filed our response to the Tenth circuit on the jurisdictional issue. I AGREED. I spoke to Morales on the phone shortly after our phone conversation. Arguing points of law before court clerks and judges who have outstanding criminal complaint affidavits for crimes COMMITTED IN WRITING against them would be unproductive on Morales and my part. Therefore, we will proceed to resolve the criminal conduct on the part of judges and court clerks before we proceed further in this matter. We will do this at the Congressional level. Senate Judiciary Committe chairman Orrin Hatch, unfortunately, failed to properly process a valid complaint on New Mexico district court chief judge John Conway in 1995. http://www.jya.com/whp071598.htm Hatchs failure to properly respond in 1995, in large part, caused our current legal conflict with DIR NSA Minihan. We foresee an unfortunate escalation of hostilities if this matter proceeds as it is. We do not wish this. We seek settlement of the UNFORTUNATE matter at the earliest time. We ask your and Congressional help to settle this UNFORTUNATE matter before it gets WORSE. If I have made any essential material errors in reporting my impression of the contents of our conversation, then I would appreciate you giving your impression of possible errors. You can do this in the letter you said you would write to us. Sincerely, bill payne 13015 Calle de Sandias NE Albuquerque, NM 87111 Distribution Senate Judiciary Committee e-mail Arthur R Morales e-mail 4 Michell responds to 3 in letter dated August 4, 1998. Exhibit B Mitchell writes I have received Mr. Paynes FAX dated August 3, 1998 at 4:22. I want to clarify a few points. ... As to the caption of the appeal, I have noted in the motion for extension of time which has been filed with the Tenth Circuit that there was an additional Defendant numbed in the District Court case. However, I am constrained at the time to use the caption which the Tenth Circuit is reflecting on its pleadings. I will forward your FAX suggesting settlement to Defendants. Sincerely, JOHN J. KELLY United States Attorney signature JAN ELIZABETH MITCHELL Assistant U. S. Attorney 5 Federal Rules of Civil Procedure http://www.law.cornell.edu/rules/frcp/overview.htm Rule 54(b) states (b) Judgment Upon Multiple Claims or Involving Multiple Parties. 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 judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. 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 the 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 of judgment adjudicating all the claims and the rights and liabilities of all the parties. Interpretation of meaning of 54(b) is RULE 54(b) JUDGMENTS UPON MULTIPLE CLAIMS OR INVOLVING MULTIPLE PARTIES CORE CONCEPT A judgment entered as to less than all claims in a lawsuit, or as to less than all parties in a lawsuit, is not immediately appealable. Instead, the appeal must generally await the entry of judgment as to all remaining claims and parties. However, the district court can make a judgment as to less than all claims or parties final, and thus immediately appeals, by expressly certifying that no just cause exists to delay the appeal and by directing the entry of judgment. APPLICATIONS Prerequisites to Rule 54(b) There are three prerequisites for obtaining an immediately appealable judgment from the district court entered as to less than all claims or parties. 1: Multiple Claims or Parties Fully Resolved: To be eligible for immediate appeal under Rule 54(b), a partial adjudication must either (a) finally resolve at least one claim or (b) finally resolve the rights and liabilities of at least one party. A claim or a partys interest MUST be adjudicated to finality, such that there is nothing more to do that claim or that party but await the conclusion of the remaining portion of the litigation. This limitation is a pivotal one. Rule 54(b) does not alter the normal rules of appellate finality for individuals claims, and no appeal may be taken from district court ruling or any particular claim until the court finally resolves that claim. Multiple claims exist where each claim is factually separate and independent, or where each claim could be enforced separately. 2: No just Cause for Delay: The district court must state, in clear and unmistakable language, that there is no just cause to delay the appeal of the adjudicated claim or the adjudicated right and liability of a party. Whether just cause exists is a determination made on a case-by-case basis. Certain criteria guide the courts consideration: o The relationship between adjudicated and unadjudicated claims; o The possibility that the need for appellate review might be mooted by future developments in district court; o The possibility that the district court might be obligated to consider the same issue on a later occasion; o The presence (or absence) or a claim or counterclaim that could result in a set-off against the judgment now sought to be made final and appealable; and o Other factors, including delay, economic and solvency concerns, shortening of trial time, frivolity or competing claims, and expense. 3: Entry of judgment: In clear and unmistakable language, the district court must also direct that judgment is entered as to that one claim or one party. Explanation by the District Court In its order entering a Rule 54(b) judgment, the district court must clearly explain why it has concluded that an immediate appellate review of that order is advisable. Burden of Proof The moving party bears the burden of establishing that a partial judgment should be entered under Rule 54(b). Discretion of District Judge Whether to enter a judgment under Rule 54(b) is reserved to the sound discretion of the district judge. Such arguments are contrary to the historic federal policy against piecemeal appeals. For this reason, Rule 54(b) orders are not granted routinely or an accommodation to counsel. Instead, the district court must carefully balance the needs of the parties for an immediate appeal against the interests of efficient management of the litigation. Motions for Rule 54(b) Judgments A party may file a motion with the court to certify under Rule 54(b), or the court may do so on its own initiative. Effects of Rule 54(b) Judgments Once entered, the time for appeal on the judgment begins to run, and does post-judgment interest. Appealability of Denials for Rule 54(b) Requests Allowing immediate appellate review of partial final judgments is a practice that departs from the federal courts traditional opposition to piecemeal appeals. Rule 54(b), thus, represents an unusual exception to this settled policy. Predictably, the court reject immediate attempt to challenge denials of Rule 54(b) judgments as premature and unappealable until a final ruling his entered on the merits. Federal Civil Rules Handbook 1996, Baicker-McKee, Janssen, Corr, West Publishing Company 6 Appellants-Plaintiffs assert that there is NO REASON to seek a Rule 54 (b) certification for the REASON THAT New Mexico district judge Santiago Campos [Campos] already issued such certification. FACT 1 4 May 1998 Campos writes NOW, THEREFORE, IT IS ORDERED that sua sponte, Defendant is DEEMED by the Court to be the NSA, and not Lt. Gen. Kenneth A. Minihan. Future captions for this case should reflect this change. IT IS FURTHER ORDERED that Defendant's Motion to Dismiss Plaintiff Morales is GRANTED. http://jya.com/whp043098.htm 1: [A] claim or a partys interest MUST be adjudicated to finality ... has been satisfied. FACT 2 2: is satisfed. [N]o just Cause for Delay: Dismissing Minihan and Morales have nothing to do with the remaining claims of whether AppelleeS- DefendantS Minihan and NSA provide lawfully requested documents on 1 Iran messages given to Iraq during the Iraq/Iran war. http://www.aci.net/kalliste/speccoll.htm http://caq.com/cryptogate 2 Libyan message intercepted by the US 3 deficient NSA cryptographic algorithms FACT 3 3: In clear and unmistakable language, the district court must also direct that judgment is entered as to that one claim or one party. NOW, THEREFORE, IT IS ORDERED that sua sponte, Defendant is DEEMED by the Court to be the NSA, and not Lt. Gen. Kenneth A. Minihan. Future captions for this case should reflect this change. IT IS FURTHER ORDERED that Defendant's Motion to Dismiss Plaintiff Morales is GRANTED. http://jya.com/whp043098.htm is QUITE CLEAR. FACT 4 Motions for Rule 54(b) Judgments A party may file a motion with the court to certify under Rule 54(b), or the court may do so on its own initiative. Campos issues Rule 54(b) certification ON HIS OWN INITIATIVE. However, I shall await decision on the appeals before the Tenth circuit prior to setting a date for presentment of the classified Declaration or before taking any further action in this case. FACT 5 Therefore, no Rule 54(b) certification needs to be sought by Appellants-Plaintiffs. 7 Campos did not explicitly state in Camposs June 29, 1998 letter http://jya.com/sec062998.htm or in Campos MEMORANDUM OPINION AND ORDER http://jya.com/whp043098.htm that a Rule 54(b) decision was issued. Therefore, Appellants-Plaintiffs seek to clarify Campos intention Wednesday 8/11/98 Certified Return receipt requested Santiago E. Campos, Senior Judge P.O. Box 2244 U.S. Courthouse South Federal Place Santa Fe, NM 87504-2244 Re: William H. Payne v. National Security Agency Civ. No. 97-0266 SC/DJS Dear Judge Campos, We assume that your statement However, I shall await decision on the appeals before the Tenth circuit prior to setting a date for presentment of the classified Declaration or before taking any further action in this case. in your June 29, 1998 letter seen at http://jya.com/sec062998.htm is a sua sponte Rule 54(b) certification for immediate appeal. If we are incorrect in our assumption, then we ask that you write us and explain why we would need to wait to appeal. Clearly we have satisfied the three conditions required for immediate appeal which we are sure you are acquainted. If not, however, these conditions are included in Federal Civil Rules Handbook 1996, Baicker-McKee, Janssen, Corr, West Publishing Company Also, we would ask that you justify seeking permission for appeal from a judge who has issued a MEMORANDUM OPINION AND ORDER when appellants have satisfied Rule 54(b) conditions if you choose to respond negative. If we do not hear from you Monday August 31, 1998, then we will treat our assumption as correct. Sincerely William H. Payne Arthur R. Morales 13015 Calle de Sandias NE 1024 Los Arboles NW Albuquerque, NM 87111 Albuquerque, NM 87107 8 Appellants-Plaintiffs receive Exhibit C UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT WILLIAM H. PAYNE; ARTHUR R. MORALES Nos. 98-2156 Plaintiff - Appellants, 98-2157 NATIONAL SECURITY AGENCY, Defendant - Appellee. ORDER Filed August 6, 1998 The appellants and appellee are granted additional time until September 21, 1998 to this court's show cause order of June 30, 1998. All other requests contained in the appellants; motion filed August 4, 1998 are referred to the panel of judges who will hear this case on the merits. Entered for the Court PATRICK FISHER, Clerk of Court by: signature Randy Simmons? Deputy Clerk A Hearing MUST be corrected to include defendant Minihan. B Clerk FISHER has not addressed his removal from the appeal for previous title 18 felony violations of law. C ORDER does not address selection of three judge panel so not to include judges accused of Title 18 felony violations of law or biased judges. WHEREFORE 9 CORRECT ORDER Filed August 6, 1998 to include NSA Director Minihan. for reason 1 Find out who is RESPONSIBLE 2 Hold them ACCOUNTABLE 3 Hold them individually and their agency FINANCIALLY LIABLE Possiblity exists that some may pay with their lives for http://www.aci.net/kalliste/speccoll.htm http://caq.com/cryptogate http://jya.com/whpfiles.htm if this matter is NOT PEACEFULLY SETTLED. 10 EXPLICITLY RESPOND to request for removal of clerks FISHER and Hoecker from this appeal. 11 EXPLAIN how an unbiased panel of judges can be found at the Tenth circuit. Respectfully submitted, William H. Payne 13015 Calle de Sandias NE Albuquerque, NM 87111 Arthur R. Morales 1024 Los Arboles NW Albuquerque, NM 87107 Pro se litigants CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing response and motion was mailed to Lieutenant General Kenneth A. Minihan, USAF, Director, National Security Agency, National Security Agency, 9800 Savage Road, Fort George G. Meade, MD 20755-6000 and mailed to Jan E Mitchell, Assistant US Attorney, 9 Floor, Bank of America Building, 3rd and Tijeras, ABQ, NM 87102 an original and three copies as required by FRAP 27(d) http://www.ca5.uscourts.gov/docs/frap-iop.htm#27d United States Court of Appeals for the Tenth Circuit, 1823 Stout Street, Denver, Co 80257 by CERTIFIED RETURN RECEIPT REQUESTED mail August 11, 1998. 9