Dustin J. OBrien 30 West 60th Street, Apt. 8L New York, New York 10023 (718) 736-5515 dustin.obrien@live.law.cuny.

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

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DUSTIN J. OBRIEN, Plaintiff, vs. EDDIE B. CALVO, in his official capacity as Governor of Guam, JOHN CAMACHO, in his official capacity as Director of the Guam Department of Revenue and Taxation, THE GUAM DEPARTMENT OF REVENUE AND TAXATION, THE LEGISLATURE OF GUAM, and THE UNITED STATES OF AMERICA, Defendants.

DOCKET # 12-CV-2700 (ARR) (MG)

MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS

MEMORANDUM OF LAW
Plaintiff, Dustin J. OBrien, proceeding pro se, files this Memorandum of Law in Opposition to the Defendants, Governor Calvo, Director Camacho, the Guam Department of Revenue and Taxation, the Legislature of Guams (hereafter the Territorial Defendants) Motion to Dismiss, and states:

TABLE OF CONTENTS
TABLE OF AUTHORITIES...4 INTRODUCTION...7 STATEMENT OF FACTS................................................................................................10 ARGUMENT.12 THE MOTION TO DISMISS MUST BE DENIED; PLAINTIFFS FIRST AMENDED COMPLAINT SUFFICIENTLY ALLEGES A COGNIZABLE LEGAL THEORY FOR BOTH A FACIAL AND AS APPLIED CHALLENGE TO THE ORGANIC ACT OF GUAM...12 1. The Incorporation Doctrine is self-limiting and whether the doctrines limitations are subject to the structural restraints of Article I and II present questions of first impression that cannot be resolved by any of the authorities cited to in the Motion to Dismiss.14 2. The structural clauses the FAC names are all fundamental rights that require a strict scrutiny analysis, in addition to the Due Process and Equal Protection arguments of the FAC20 3. The Territory of Guam is an Agency of the Federal Government and Guams Agencies Are Instrumentalities of the Federal Government.22 4. The Elected Governorship and Legislature of Guam are open to challenge because Supreme Court cases decided subsequent to the Insular Tariff Cases call into doubt the constitutionality of elected executive positions within the Government of Guam..29 A. The evolution of the argument that Congress creation of elected territorial executives violates the Appointments Clause..29 B. The enforcement powers of the Governor of Guam pursuant to the Organic Act of Guam appear to violate the Appointments, Take Care, and Vesting Clauses of Article II.33 C. The powers of the members of the Legislature of Guam and the power structure of the GDRT appear to violate the Appointments, Take Care, and Vesting Clause of Article II as well as the Presentment and Vesting Clauses of Article I40 I. II. The Legislature of Guam.40 The Guam Department of Revenue and Taxation...44

D. Federal laws that create elected executive positions within the Government of Guam are not needful Rules or Regulations within the meaning of the Territories Clause.45 E. Neither the President nor Congress can acquiesce in separation of powers violations..46 F. The Governor exercises significant authority over the laws as discussed in Buckley v. Valeo...46 CONCLUSION..47

TABLE OF AUTHORITIES Page CASES Balzac v. Porto Rico, 258 U.S. 298 (1922)..15, 16 Bond v. United States, 131 S.Ct. 2355 (2011)...31 Boumediene v. Bush, 553 U.S. 723 (2008)...14-15 Bowsher v. Synar, 478 U.S. 714 (1986)...20, 33, 37-38 Buckley v. Valeo, 424 U.S. 1 (1976)...passim Cincinnati Soap v. United States, 301 U.S. 308 (1937).............................................. 42-44 Clinton v. City of New York, 524 U.S. 417 (1998)............42 Domenech v. National City Bank of New York, 294 U.S. 199 (1935)..22-23 Dorr v. United States, 195 U.S. 138 (1904).........13-16 Downes v. Bidwell, 182 U.S. 244 (1904).14-15 Glidden Co. v. Zdanok, 370 U.S. 530.18-20, 33 Grafton v. United States, 206 U.S. 333 (1907)............................17-18 Hawaii v. Mankichi, 190 U.S. 197 (1903).18 INS v. Chadha, 462 U.S. 919 (1983)..passim IT&E Overseas, Inc. v. RCA Global Comm., Inc., 747 F.Supp 6 (D.D.C. 1990)...23, 26-27 Morrison v. Olson, 487 U.S. 654 (1988)20, 39-40 Myers v. United States, 272 U.S. 119 (1926)19, 31, 37 Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573 (2d Cir. 2000)25-26 Nguyen v. United States, 539 U.S. 69 (2003)..18-19 ODonoghue v. United States, 289 U.S. 516 (1933)18-19 Ngiraingas v. Sanchez, 858 F.2d 1368 (9th Cir. 1988)....23-25, 27, 46 Ngiraingas v. Sanchez, 495 U.S. 182 (1990)23-25, 27, 46 4

PGMedia, Inc. v. Network Solutions Inc., 51 F.Supp.2d 389 (SDNY 1999)...26-27 Reid v. Covert, 351 U.S. 1 (1957)36-37 Saenz v. Roe, 526 U.S. 489 (1999)20 Sakamoto v. Duty Free Shoppers Ltd., 613 F.Supp. 381 (D.Guam 1983)...22-26 Sakamoto v. Duty Free Shoppers Ltd., 764 F.2d 1285 (9th Cir. 1985)22-26 Sakamoto v. Duty Free Shoppers Ltd., 475 U.S. 1081 (1986).22-26 San Antonio Independent School District v Rodriquez, 411 U.S. 1 (1973) .20-21 Sampson v. Murray, 415 U.S. 61 (1974)...31 Santos v. Camacho, 2006 WL 581251 (D. Guam 2006) ..34 Simms v. Simms, 175 U.S. 162 (1889).14-15 United States v. Wheeler, 435 U.S. 313 (1978)23-24 Wagoner v. Evans, 170 U.S. 588 (1898)41 UNITED STATES CONSTITUTION U.S. Const. art. I, 232 U.S. Const. art. I, 335 U.S. Const. art. I, 430 U.S. Const. art. II, 2, cl. 28, 29, 34 U.S. Const. art. IV, 3, cl. 1.........45 U.S. Const. art. IV, 3, cl. 2.7, 30 FEDERAL STATUTUES 3 U.S.C. 19(d)...9 48 U.S.C. 1421a..........41 48 U.S.C. 1421i(a)...41-42 5

48 U.S.C. 1421(d)(2)..40 48 U.S.C. 1421i(h)(4).35 48 U.S.C. 1422..7, 11, 12, 28, 29, 33, 45 48 U.S.C. 1424b20, 24 48 U.S.C. 14237, 11, 12, 25, 41-42, 45 48 U.S.C. 1423i.25, 41, 42 TERRITORIAL LAW OF GUAM 11 Guam Code Ann. 1104(a)..45 11 Guam Code Ann. 1106.1..41-42 GUAM PUB. L. NO. 28-175:3 (2007).41-42 COURT RULES Federal Rules of Civil Procedure 12(b)(6).12, 13-14, 22, 42 LEGISLATIVE MATERIALS Philippine Independence Act, ch. 84, 48 Stat. 456 (1934)43-44 Proclamation No. 2695, 60 Stat. 1352, 11 Fed.Reg. 7517 (1946), reprinted in 22 U.S.C. Sec. 1394 (1990)44 TREATISES AND ADDITIONAL AUTHORITY Law Review Articles Gary Lawson, Territorial Governments and the Limits of Formalism, 78 Cal. L. Rev. 853 (1990)13, 28, 29 Gary Lawson and Robert D. Sloane, The Constitutionality of Decolonization by Associated Statehood: Puerto Ricos Legal Status Reconsidered, 50 B.C. L. Rev. 1123 (2009)13, 30 Stanley K. Laughlin, Cultural Preservation in Pacific Islands, 27 U. Haw. L. Rev. 331 (2005)..37

INTRODUCTION This case is about whether Congress can delegate executive authority to the Governor of Guam, the Governors subordinates, and members of the Legislature of Guam pursuant to its plenary authority to regulate the territories. See U.S. Const. art. IV, 3, cl. 2. The Territorial Defendants believe that Congress plenary authority to regulate the territories allows Congress to create any system of government for Guam. They argue that there is nothing unconstitutional about a system of government where individuals who do not belong to the executive branch, and who do not claim to be members of the executive branch, have the authority to execute and enforce the laws of the United States by implementing federal tax laws as well as the Guam Territorial Income Tax (GTIT). This case involves the public rights of Plaintiff, who is a bona fide resident of Guam pursuant to the Internal Revenue laws but who no longer resides in Guam and was a resident of the State of New York on all applicable dates the complained of acts occurred. The Territorial Defendants arguments about the Territories Clauses supremacy over the Appointments Clause and Plaintiffs other causes of action must fail because (1) 48 U.S.C. 1422, 1421i, and 1423 are not needful within the language of the Appointments Clause because the that clause provides for all officers of the United States to take office pursuant to one of its two modes; (2) the First Amended Complaint (hereafter FAC) draws upon a number of fundamental clauses of the Constitution and those questions of law are ones of first impression that never have been considered by any court with regard to the Incorporation Doctrines self-limiting exception that certain constitutional provisions must always apply ex proprio vigore and (3) the Supreme Court has unequivocally held that merely because Congress has plenary authority to legislate over a certain field of activity that fact does not give Congress authority to offend other 7

provisions of the Constitution, such as the Appointments Clause or Presentment Clause when legislating pursuant to a plenary authority. See INS v. Chadha, 462 U.S. 919, at 941 (1983) (As we made clear in Buckley v. Valeo, 424 U.S. 1 (1976): Congress has plenary authority in all cases in which it has substantive legislative jurisdiction, McCulloch v. Maryland, 4 Wheat. 316 (1819), so long as the exercise of that authority does not offend some other constitutional restriction.) (emphasis added). In the past Congress has attempted to encroach upon the Executive Branchs authority when using its plenary authority to legislate regarding immigration and federal elections and each time the Supreme Court has denied such attempts. See Id.; Buckley v. Valeo, 424 U.S. 1 (1976). Plaintiff argues that the design of the Organic Act of Guam, which creates a structure of government for the Territory of Guam, violates Article Is Vesting and Presentment Clauses, Article IIs Vesting, Appointments, Excepting, and Take Care Clauses, and the Equal Protection and Due Process Clauses of both the Fifth and Fourteenth Amendments. By charging the Governor of Guam with the faithful execution of the laws of Guam and the laws of the United States applicable in Guam Congress has usurped the Presidents Appointments Clause powers and have unconstitutionally restricted the Presidents ability to take care that the laws of the United States are faithfully executed by an officer of the United States who gains his authority to exercise the sovereign powers of the United States through a familiar but inconspicuous legal device an election. The problem with an officer of the United States taking office pursuant to an election and outside of the two modes of appointment of art. II, 2, clause 2 is this: the only individuals in the United States government who may constitutionally execute and enforce the laws of the United States by virtue of winning an election is the President and 8

Vice-President, except in the rare circumstances contemplated by article II, 1, cl. 6. See generally U.S. Const. art. II; Cf. 3 U.S.C. 19(d). Apart from the separation of powers causes of action the Territorial Defendants may have also levied a non-uniform separate taxin an amount not to exceed 10 per centum of [Plaintiffs]income tax obligation to the Government of Guam, which Plaintiff argues violates the Uniformity Clause because of his past inability to file for an income tax refund while he was an actual resident of Guam and his obligation to file his income tax refund with the Guam Department of Revenue and Taxation (hereafter GDRT) after reassuming his residence in his homestate of New York. The implications of this suit are not lost on any of the parties, but even more important to notice is the dangerous road the Territorial Defendants are attempting to lead the Court down. However unfair, dissatisfying, and undemocratic the potential result of this case may be, that does change the fact that the Territories Clause and the Constitution as a whole cannot be read to allow for Guams government to be operated by individuals who are not subordinate to members of the Executive Branch and who can and have exercised coercive authority over a State citizen. To hold, generally, that there is nothing constitutionally problematic with allowing Congress to supervise and control individuals who execute and enforce federal laws is as dangerous a legal holding as Plaintiff can imagine. To hold that Congress can acquire territory and lord over Americans in the territory as subjects of Congress with only those rights as Congress may determine is to support a kind of tyranny that the Framers meant to avoid by vesting executive power to the President, excluding Congress from the appointments process (except for the Senates Advice and Consent power and Congress authority to vest appointment authority in the President alone, in the Courts of Law, or in the Heads of Departments), and 9

requiring that all legislation be presented to the President for approval before it becomes law. Until Congress chooses to admit the Territory of Guam as a State, or relinquish sovereignty over the island and allow Guam to become a sovereign unto itself, the executive functions within the territory must be carried out or controlled by members of the executive branch of the United States by comporting with Article II. Moreover, never in any situation should agents of Congress have authority to coerce and tax the income of a territorial citizen, let alone a State citizen. The Territorial Defendants Motion to Dismiss should be denied and Plaintiff afforded the opportunity to proceed to discovery and develop a factual record to support his claims. STATEMENT OF FACTS1 Plaintiff resided on Guam from February 18, 2011 through December 6, 2011. Pls FAC, 25. During that time Plaintiff earned income on Guam and was subject to the jurisdiction and laws of the Territory of Guam. Pls FAC, 26. On December 6, 2011 and before the end of the tax-year 2011, Plaintiff returned to his home state, the State of New York, and was subject to not only the jurisdiction and laws of the State of New York and the United States, but also subject to the jurisdiction and laws of the Territory of Guam. Pls FAC, 2, 3, 25 (explaining the effect of the Internal Revenue Codes presence test, which subjects bona fide residents to the GTIT irrespective of their residence in a State). Once Plaintiff left the island, he lost the right to vote in Guamanian gubernatorial elections, which in effect extinguished any kind of democratic power he may have had upon the Governor of Guam and any of his subordinates because the

All facts set forth in this section are as set forth in the First Amended Complaint unless otherwise indicated. 10

Governor is not a member of the executive branch or subordinate to a higher executive branch official. Pls FAC, 46, 54. The Constitution does not have full effect in Guam, which means that Americans in Guam enjoy less constitutional rights than residents of the State of New York. Pls FAC, 8 citing to 48 U.S.C. 1421b. When Plaintiff left Guam a residual deprivation of his constitutional rights followed him to New York. Id. On or around April 14, 2012, Plaintiff filed his Form 1040 Guam Individual Income Tax Return 2011 with Guams Department of Revenue and Taxation (GTIT,) under the threat of the criminal and civil penalties of the laws of the United States and the Territory of Guam. Pls FAC, 3, 8, 22, 23, 48, 53. The Governor of Guam executes the laws of the United States applicable in Guam and does so by taking office outside of the two modes of the Appointments Clause and with the aid of subordinates who are also not properly appointed, including the Director of GDRT, who is appointed by the Governor pursuant to a law that the Legislature of Guam has enacted pursuant to its 48 U.S.C. 1423 authority to legislate for Guam. Pls FAC, 45, 49, 66; see also 48 U.S.C. 1422, 1423. The GDRT acts as an agency or instrumentality of the United States when its officers execute and enforce the tax and coordinate criminal laws of the United States. Pls FAC, 22, 23, 48, 53. The Legislature of Guam acts as an agency or instrumentality of the United States when its officers execute federal law in order to enact laws for the execution and enforcement of the tax and coordinate criminal laws of the Untied States. See Pls FAC 40, 41, 44, 58, 60, 68 (incorporated into counts One through Four). As Plaintiff speculated about in his FAC, officers or employees of the GDRT, under the supervision of the Governor of Guam and the Director of the GDRT, processed 11

Plaintiffs Form 1040 Guam Individual Income Tax Return 2011 and a draft was issued in the sum of $516.36 from the Government of Guams Income Tax Refund Account by Rosita T. Fejeran, the Treasurer of Guam. See Pls FAC 38; see Exhibit A. By doing so, the Territorial Defendants, pursuant to 48 U.S.C. 1421i, 1422, 1423 levied, laid, assessed, and collected taxes on Plaintiffs income, or execute laws of the United States in order to create offices for Guamanian officials to do so, without be properly appointed by the President, a Court of Law, or a Head of a Department as contemplated by the Appointments Clause or Article I and II (generally).

ARGUMENT
THE MOTION TO DISMISS MUST BE DENIED; PLAINTIFFS FIRST AMENDED COMPLAINT SUFFICIENTLY ALLEGES A COGNIZABLE LEGAL THEORY FOR BOTH A FACIAL AND AS APPLIED CHALLENGE TO THE ORGANIC ACT OF GUAM When reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court merely seeks a short and plain statement showing that the pleader is entitled to relief. See Fed. R. Civ. P. 8(a). A complaint needs only to contain sufficient factual matters to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937, at 1949 (2009) (emphasis added). The Territorial Defendants cite to Tellabs v. Makor (a 1 Sherman Anti-Trust Action), Bell Atlantic v. Twombly 550 U.S. 544 (a Private Securities Litigation Reform Act 10(b) private action), and Ashcroft v. Iqbal (a Bivens action against two higher executive branch officials) for the standards to apply to their 12(b)(6) motion to dismiss. Plaintiff has invoked this Courts equitable powers to hear this action. See Pls FAC 13-16 citing to Malesko, Bell v. Hood, Ex Parte Young. While Plaintiff believes that those cases are more instructive of the standard to apply for a 12(b)(6) motion for a separation of powers action such as Plaintiffs, Plaintiff agrees that Iqbal, 12

Tellabs, and Bell Atlantic are equally as instructive. The Territorial Defendants described Congress plenary authority to create a structure of government for Guam that is outside the control of the executive branch as indisputable. See Defs Motion to Dismiss, pg. 5, 3. Instead of pointing to any specific factual deficiencies in Plaintiffs FAC, the Territorial Defendants argue that as a matter of law, not fact, Plaintiffs challenges cannot pass muster to overcome FRCP 12(b)(6)s command that a complaint must state a claim upon which relief can be granted. The instant case presents mostly questions of law regarding the convergence and intersection of the separation of powers doctrine and the doctrine of Territorial Incorporation. The Territorial Defendants blanket assertion that Congress plenary authority over the territories is absolute and indisputable must fail because the questions of law before the Court are ones of first impression in any federal jurisdiction and any applicable case law cited by the Territorial Defendants cannot by itself resolve the instant issues. See Gary Lawson, Territorial Governments and the Limits of Formalism, 78 Cal. L. Rev. 853, at 870 (1990) (noting that [c]ase law, if one is concerned about such things, also does not specifically hold that the appointment of territorial officials need not comport with the [A]ppointments [C]lause); see Gary Lawson and Robert D. Sloane, The Constitutionality of Decolonization by Associated Statehood: Puerto Ricos Legal Status Reconsidered, 50 B.C. L. Rev. 1123, at 1166 and n.234 (2009) (noting that [i]t has largely escaped notice that this arrangement [of elected Governors in the territories] may violate the Appointments Clause.); see Dorr v. United States, 195 U.S. 138, at 14849 (1904) (holding that only fundamental provisions of the Constitution extend to territories not made a part of the United States and to whatever other limitations [the 13

doctrine] may be subject [to], the extent of which must be decided as questions arise). If the instant case calls into question structural limitations that the doctrine of Territorial Incorporation is subject to, questions that no Court has ever heard or resolved, then this case cannot and should not be dismissed pursuant to FRCP 12(b)(6). 1. The Incorporation Doctrine is self-limiting and whether the doctrines limitations are subject to the structural restraints of Article I and II present questions of first impression that cannot be resolved by any of the authorities cited to in the Motion to Dismiss. The Territorial Defendants entire defense on this motion is that as a matter of law it is indisputable that the Incorporation Doctrine allows Congress unbridled authority to exercise its plenary authority to legislate for the territories and to create a structure of government for Guam that exists almost completely outside of the federal power structure. See Defs Motion to Dismiss, pg. 5, 3. In order to reach that conclusion the Territorial Defendants mischaracterize the holdings and precedential value of all of the Insular Tariff Cases and earlier territorial opinions. They cited to Simms v. Simms, 175 U.S. 162 (1889) (granting a writ of error to review a final judgment of the Supreme Court of the Territory of Arizona because the amount in controversy exceeded $1000), Downes v. Bidwell, 182 U.S. 244, at 250-51 (1901) (explaining that [t]he Constitution was created by the people of the United States, as a union of states, to be governed solely by representatives of the states) (emphasis in original), Dorr v. United States, 195 U.S. 138 (1904) (five justices held that only fundamental provisions of the Constitution extend to territories not made a part of the United States) (emphasis added), and Boumediene v. Bush, 553 U.S. 723, at 765 (2008) (rejecting the United States argument that it should be able to act in Guantanamo Bay, Cuba without legal restraint by explaining that [o]ur basic charter cannot be contracted 14

away like th[at]. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not absolute and unlimited but are subject to such restrictions as are expressed in the Constitution.) (internal citations omitted). Simms predates the later Insular Tariff Cases that would firmly establish the Incorporation Doctrine and the doctrines restriction on Congress ability to deny fundamental rights to citizens in unincorporated territories. To cite Simms for the proposition that Congress has full legislative power, sovereignty, and dominion over the territories is to ignore the later holdings of Dorr and Blazac v. Porto Rico, which clarified after Simms that congressional power in unincorporated territories was always restricted by Congress inability to deny the application of fundamental provisions of the Constitution to unincorporated territories. Dorr, infra; See Balzac v. Porto Rico, 258 U.S. 298, at 312-13 (1922): The Constitution of the United States is in force in Porto Rico as it is wherever and whenever the sovereign power of that government is exerted. This has not only been admitted but emphasized by this court in all its authoritative expressions upon the issues arising in the Insular Cases, especially in the [Downes and] the Dorr Cases. The Constitution, however, contains grants of power and limitations which in the nature of things are not always and everywhere applicable, and the real issue in the Insular Cases was not whether the Constitution extended to the Philippines or Porto Rico when we went there, but which of its provisions were applicable by way of limitation upon the exercise of executive and legislative power in dealing with new conditions and requirements. The guaranties of certain fundamental personal rights declared in the Constitution, as for instance that no person could be deprived of life, liberty or property without due process of law, had from the beginning full application in the Philippines and Porto Rico, and, as this guaranty is one of the most fruitful in causing litigation in our own country, provision was naturally made for similar controversy in Porto Rico. Balzac v. Porto Rico, 258 U.S. 298, at 312-13 (1922). 15

Thus, as Dorr and Balzac instruct, the doctrine of Territorial Incorporation does not lend Congress absolute authority to apply whatever parts of the Constitution to Guam that it wishes. Cf. Defs Motion to Dismiss, pg. 6, 1 (In a series of cases from the early part of the 20th century called The Insular Cases, the Supreme Court held that Congresss power to legislate regarding the territories of the United States was absolute.) (mischaracterizing the rule) (emphasis added); Cf. Defs Motion to Dismiss, pg 8, 2 (Under the doctrine of territorial incorporation, the Constitution applies in full to incorporated territories that are destined for statehood, but only in part to unincorporated territories. Until Congress incorporates a territory, it must be governed under the Congressional power to make laws for such territories and subject to such constitutional restrictions on that power as appropriate to the situation.) (internal citations omitted). The doctrine is not absolute and undisputable, despite the Territorial Defendants representations that it is. Plaintiff has previously made the point that the doctrine is limited in effect and cannot restrict fundamental rights. See Pls Memo. of Law in Opp. to Motion to Transfer, pgs. 32-33, dated Dec. 4, 2012; Cf. Defs Motion to Dismiss, dated Dec. 10, 2012 (filed six days after Plaintiffs prior memorandum). Despite notice of the limitation on the legal rule, nowhere in the Territorial Defendants Motion to Dismiss does the word fundamental appear, or any word even close to it, or a phrase indicating an acknowledgment that fundamental rights always apply ex proprio vigore. See infra, pg. 15; Dorr; Balzac. The best the Territorial Defendants do is hint that the doctrine is circumscribed to constitutional restrictions on that [plenary] power as appropriate to the situation, but they do nothing to further explicate the actual rule or explain what they think that phrase means. 16

Why the Territorial Defendants have purposely mischaracterized the rule and have conveniently chosen not to brief whether any of the Constitutions clauses named in the FACs nine causes of action are fundamental under the doctrine of Territorial Incorporation is unclear. At any rate, those omissions will do nothing more than delay the briefing of this motion because Plaintiff cannot counter-argue against a legal analysis that is necessary to this action but has been purposely avoided. If the Territorial Defendants attempt to brief the fundamental rights exception to the doctrine of Territorial Incorporation on reply to this memorandum Plaintiff may need to motion for leave to file a surreply. The Territorial Defendants cite to Grafton v. United States, 206 U.S. 333 (1907) for the proposition that States do not receive their powers and authority from the federal government because they are sovereign entities, but the territories receive their power and authority from Congress. See Defs Motion to Dismiss, pg. 6, 1. The actual lesson to take from Grafton is a matter of criminal law and double jeopardy, but which is still applicable to the issues of this case. Graftons point is that while the same criminal offense may be tried in federal and state courts without raising double jeopardy problems, which is not true when the same offense is sought to be tried in federal and territorial courts since territorial courts derive their powers from the United States rather than from an independent source of sovereignty. Grafton at 352 (If, therefore, a person be tried for an offense in a tribunal deriving its jurisdiction and authority from the United States, and is acquitted or convicted, he cannot again be tried for the same offense in another tribunal deriving its jurisdiction and authority from the United States.). It follows that if territorial courts are inherently federal in nature, then territorial 17

executives prosecuting cases in those courts on behalf of the territorial government must be federal officers. Grafton even acknowledges Plaintiffs previously advanced arguments that the governments of Guam and the United States are equally culpable in this matter since their laws are one in the same and both could have punished Plaintiff for failure to obey the GTIT and internal revenue laws: Every citizen of the United States is also a citizen of a state or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both[t]hat either or both may (if they see fit) punish such an offender, cannot be doubted. Grafton at 353. In a dissent written in Hawaii v. Mankichi, 190 U.S. 197 (1903), Justice Harlan predicted the very problems that would arise from the pseudo-sovereign dual-government structure that the doctrine of Territorial Incorporation allows Guam to have and that Plaintiff has complained of in the present case: [E]ngraft[ing] upon our republican institutions, controlled by the supreme law of a written Constitution, a colonial system entirely foreign to the genius of our Government and abhorrent to the principles that underlie and pervade the Constitution. It will then come about that we will have two governments over the peoples subject to the jurisdiction of the United States, one, existing under a written Constitution, creating a government with authority to exercise only powers expressly granted and such as are necessary and appropriate to carry into effect those so granted; the other, existing outside of the written Constitution, in virtue of an unwritten law to be declared from time to time by Congress, which is itself only a creature of that instrument. Mankichi, 190 U.S. 197, at 240 (Harlan, J., dissenting) (emphasis added). The Territorial Defendants argue that the cases addressing Article IIIs application to the territories should inform the Courts analysis of the present issues (Glidden Co., Englebrecht, Nguyen). The sufficient foundation for th[ose] decisions [with] respect [to] the territorial courts is to be found in the transitory character of the territorial 18

governments. See ODonoghue v. United States, 289 U.S. 516, at 536 (1933) (holding that the Supreme Court and the Court of Appeals of the District of Columbia are Art. III courts and whose judges hold their offices during good behavior and whose compensation cannot be diminished during their continuance in office) (emphasis added); Cf. Glidden Co. v. Zdanok, 370 U.S. 530, at 546 (1962) (At the same time as the absence of a federal structure in the territories produced problems not foreseen by the Framers of Article III, the realities of territorial government typically made it less urgent that judges there enjoy the independence from Congress and the President envisioned by that article. For the territories were not ruled immediately from Washington; in a day of poor roads and slow mails, it was unthinkable that they should be.) (emphasis added). The Territorial Defendants cite to Nguyen v. United States, 539 U.S. 69 (2003) for the proposition that territorial courts are federal courts but the structural protections of Article III can be ignored by Congress when creating offices for those courts. Nyguyen is an interesting opinion with regard to Guam and how the extra-constitutional deprivations Congress places on territorial courts and their judges cannot spoil the independent composition of Article III Circuit Court panels. In Nguyen a federal judge from the Commonwealth of the Northern Mariana Islands was invited to sit on a Ninth Circuit Court of Appeals panel to hear a criminal appeal from the District Court of Guam. The Supreme Court invalidated the proceeding because the highly unusual presence of an article IV judge on a panel that normally would be constituted with only Article III judges, which the Court said it was driven [to invalidate the proceeding]bythe errorin violation of a statutory provision that embodies a strong policy concerning the proper administration of judicial business Nguyen at 81. Thus, even the slightest commingling of Article IV power structure with Article III power 19

structure violates public policy (for obvious reasons). In this case, the commingling of the Territorial Defendants Article IV power structure with Article I and IIs federalism power structure should also be invalidated. The Territorial Defendants specifically call attention to the fact that judges of territorial courts may be appointed for fixed terms despite the constitutional requirement that Article III judges be appointed for life. See Defs Motion to Dismiss, pgs. 8-9 Even though the cases regarding Article IIIs application to the territories allow for deviation from Article IIIs structural protections, none of those cases specifically say that Congress is permitted to vest the appointment of federal judges to territorial executives or to territorial electorates by an election. The judge of the District Court of Guam is and has always been a presidential appointee, despite the offices 10-year fixed term. See 48 U.S.C. 1424b. 2. The structural clauses the FAC names are all fundamental rights that require a strict scrutiny analysis, in addition to the Due Process and Equal Protection arguments of the FAC. Plaintiff cited cases in his FAC that clearly implicate the notion that the structural provisions of the Constitution are fundamental. See Pls FAC, 14 (citing to Morrison and Public Citizen v. U.S. Dept of Justice), 15 (citing to Free Enterprise Fund), 16 (citing to Glidden and Freytag), 53 (citing to Marbury, Germaine, Springer, Myers, Bowsher, and Chadha); see generally, Pls FAC, Count Eight and Nine (paragraphs 7682). The fact alone that Plaintiff has raised 5th and 14th Amendment Equal Protection arguments should have triggered a fundamental rights analysis by the Territorial Defendants. See San Antonio Independent School District v Rodriquez, 411 U.S. 1, 17 (1973) (We must decide, first, whether the[government classification] operates to the 20

disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutinyIf not, the[classification] must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose...) (emphasis added). As government attorneys, counsel for the Territorial Defendants should know that Equal Protection arguments require a fundamental rights analysis, but counsel for the Territorial Defendants have avoided that analysis by trying distort the facts of this case as being a dispute between a resident of Guam and the Government of Guam. See Defs Motion to Dismiss, (If the people of Guam are entitled to Equal Protection, and must be treated like the people of Maine and California why do they not have a vote for President and no representation in the House and Senate?). The Territorial Defendants even avoid identifying Plaintiff as a bona fide resident of Guam in the terminology of the presence test and they wholly ignore the fact that Plaintiff distinguishes himself as a State citizen in his FAC multiple times. See Pls FAC, 8, 19, 25, 39, 54, 82. The whole point of this action is that Plaintiff was not a pe[rson] of Guam on any of the applicable dates that the complained of events occurred. See Pls FAC, 25, 39. Even if Plaintiff were to be considered a resident of Guam for any reason when resolving this dispute his arguments would still be the same. Perhaps the presence test classifies Plaintiff as a bona fide resident of Guam for the purposes of that test, see Pls FAC 2, but just because Congress defines a person as a bona fide resident does not mean that are an actual resident in the true sense of the word. Cf. Saenz v. Roe, 526 U.S. 489, 504 (1999) (That newly arrived citizens have two political capacities, one state and one federal, adds special force to their claim that they have the same rights as others who share their citizenship.) citing U.S. Term Limits, Inc. 21

v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). The Territorial Defendants could have glossed over the Equal Protection and Due Process arguments by claiming that the presence test and the GTITs operation in the this case merit a rational basis review, but they did not even acknowledged the applicable facts in order to do so. The Territorial Defendants avoidance of addressing the actual facts of this case do nothing more than support the fact that the constitutional violations complained of in this case give rise to serious questions of law regarding with the application of the GTIT and presence test to Plaintiff, a resident of the State of New York. All the cases relied upon in the Motion to Dismiss (Olsen, Sakamoto, Blaz) for the proposition that all of Plaintiffs 5th and 14th Amendment arguments are dismissible pursuant to FRCP 12(b)(6) are not on point and cannot be read to preclude Plaintiff from raising those challenges. 3. The Territory of Guam is an Agency of the Federal Government and Guams Agencies Are Instrumentalities of the Federal Government.2 Puerto Rico, an island possession, like a territory, is an agency of the federal government, having no independent sovereignty comparable to that of a state in virtue of which taxes may be levied. Authority to tax must be derived from the United States. Domenech v. National City Bank of New York, 294 U.S. 199, 204-05 (1935) (emphasis added). In this case Guam draws is authority to tax Plaintiffs income from the United

This section is borrowed, in relevant part, from Plaintiffs previous memorandum, dated Dec. 4, 2012, in reply to the Motion to Transfer, with added applicable precedents from the Southern District of New York and the Second Circuit Court of Appeals that apply Sakamotos federal instrumentality anti-immunity rationale, as well as other additional material. 22

States government, thus the Government of Guam should be treated as an agency of the federal government for the purposes of this action. See generally 48 U.S.C. 1421i. The GDRT and Legislature of Guam are instrumentalities of the federal government and their officers powers are conferred exclusively by the federal government. The Supreme Court has characterized territorial governments as agenc[ies] of the federal government. United States v. Wheeler, 435 U.S. 313, at 321 (1978) (quoting Domenech v. National City Bank of New York, 294 U.S. 199, at 204-05 (1935)). Relying upon such characterizations lower courts have held that the unique legal relationship between Guam and the federal government allows Guam to grant anti-trust immunity upon its agencies just as the United States government may to its own. Sakamoto v. Duty Free Shoppers Ltd., 613 F.Supp, 381, 384 (D.Guam 1983), affd, 764 F.2d 1285 (9th Cir. 1985) cert. denied, 475 U.S. 1081 (1986) (holding the Guam Airport Authoritys sale of a $140,000,000 exclusive franchise to DFS Ltd. effective because the GAA is an instrumentality of the Government of Guam which itself is a creature of the federal government); see Brief for the United States as Amicus Curiae at 10-12, Sakamoto, 475 U.S. 1081 (No. 85-552) (endorsing argument that the GAA is an instrumentality of the federal government and immune from anti-trust laws); accord IT&E Overseas, Inc. v. RCA Global Communications, Inc., 747 F.Supp 6, 11-12 (D.D.C. 1990) (concluding that the Guam Telephone Authority enjoyed anti-trust immunity pursuant to Sakamoto, Ngiraingas (infra), and the federal instrumentality doctrine). Sakamotos holding and rationale would later have a disastrous effect on the ability of persons in Guam to sue Guam officials pursuant to 42 U.S.C. 1983. In Ngirainigas v. Sanchez, the Ninth Circuit relied upon Sakamotos Guam is a federal instrumentality rationale to determine whether Guam could be sued as a person within 23

the meaning of 42 U.S.C. 1983, which it concluded that Guam could not. The Hon. Alex Kozinski, now Chief Judge of the United States Courts for the Ninth Circuit, further explained the curious legal nature of Guams relationship to the federal government in Ngiraingas v. Sanchez: Guam is an unincorporated territory whose status is governed by the Organic Act of 1950, 48 U.S.C.A. 1421-1424b (1987). It enjoy[s] only such powers as may be delegated to it by Congress in the Organic Act.... Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1286 (9th Cir.1985), cert. denied, 475 U.S. 1081, 106 S.Ct. 1457, 89 L.Ed.2d 715 (1986); see also Leibowitz, The Applicability of Federal Law to Guam, 16 Va.J.Int'l L. 21, 34 (1975) (Guam has no power to act in the absence of a specific authorization from Congress). As such, it is in essence an instrumentality of the federal government, id., much like a federal department or administrative agency. See United States v. Wheeler, 435 U.S. 313, 320-21, 98 S.Ct. 1079, 1084-85, 55 L.Ed.2d 303 (1978). Like an agency, it may administer its own affairs; it may draft laws of general applicability, select personnel, exact penalties and even create an entire infrastructure of government. But, also like an agency, its authority to administer itself and to set policy is derived from, and circumscribed by, Congress.

Admittedly, the analogy between Guam and an administrative agency such as the Federal Trade Commission is counterintuitive. Guam seems more like a state or a municipality than a run-of-the-mill federal agency. After all, Guam elects government officials, its citizens participate politically and the territory enjoys many of the trappings of a sovereign governmental entity. See 48 U.S.C. 1421-1424b. But there are also very significant differences, differences we deem conclusive for purposes of the question presented to us. Guam marches squarely to the beat of the federal drummer; the federal government bestows on Guam its powers and, unlike the states, which retain their sovereignty by virtue of the Constitution, Guam's sovereignty is entirely a creation of federal statute. In Sakamoto, we considered whether Guam enjoys the same immunity from the antitrust laws as does the federal government. Reasoning that the government of Guam is an instrumentality of the federal government over which the federal government exercises plenary control we concluded that [t]here is no reason why Guam should enjoy less immunity than the federal government itself. 764 F.2d at 1289. While the issue in Sakamoto was immunity from antitrust suit, the principle that Guam, like the federal government, should not be held liable on the same terms as other entities is applicable in this context as well. 24

As a creature of the federal government, Guam stands in sharp contrast to bodies politic as that phrase is normally understood. See Leibowitz, [The Applicability of Federal Law to Guam], 16 Va. J. Intl L. [21] at 35 [1975] (the government of Guam totally lacks the degree of local autonomy possessed by states or commonwealths within the federal system). Unlike states, Guam has no sovereign status; it cannot create a system of laws and administration except by leave of Congress and, of course, the Constitution does not accord Guam or any other unincorporated territories independent sovereignty. See, e.g., 48 U.S.C. 1423i (Congress may annul any act of Guam legislature); compare U.S. Const. amends. XXI with id. at art. IV, 3. Ngiraingas v. Sanchez, 858 F.2d 1368, 1371 (9th Cir. 1988) (Kozinski, J.) (emphasis added), affd Ngiraingas v. Sanchez, 495 U.S. 182 (1990).3 The Territorial Defendants argue that the Ninth Circuits description of Guam in Sakamoto as an instrumentality of the federal government is so ambiguous as to preclude this Court from using the opinion for the proposition that Guams officials may should be appointed by the President. See Defs Motion to Dismiss, pg. 6, 3 (It is not absolutely clear what instrumentality means in those opinions or in the context of Guam.). Plaintiff disagrees. If Sakamotos reasoning was unclear, Ngiraingas certainly should have dispelled any ambiguity as to what the Ninth Circuit Court of Appeals meant by describing Guam an agency or instrumentality of the federal government. If Sakamoto and the instrumentality description of Guams government is so ambiguous, Judge Katzmann of the Second Circuit Court of Appeals certainly did not struggle with Sakamotos rationale when deciding Name.Space, Inc. v. Network

Because the Ninth Circuit Court of Appeal relied heavily upon Arnold H. Leibowitzs The Applicability of Federal Law to Guam, 16 Va. J. Int'l L. 21 (1975) (which is not available on Westlaw or Lexis-Nexis) when deciding both Sakamoto and Ngiraingas, Plaintiff will include a courtesy copy of that article with this brief for the Courts convenience. The article is still cited to frequently in the opinions of the District Court of Guam and is considered to be the seminal authority on the issue. Plaintiff will also include a copy of that article for all parties along with this memorandum. 25

Solutions, Inc., 202 F.3d 573 (2d Cir. 2000) (choosing not to apply the status-based federal instrumentality doctrine to a government contractor, but applying an implied conduct-based immunity principle to resolve an antitrust action): Accordingly, the antitrust immunity of federal instrumentalities is statusbased, rather than conduct-based, such that the applicability of this doctrine to private entities depends, for example, on the extent to which the federal government or its agencies directly own and/or exercise plenary control over the entity in question. See, e.g., Sakamoto v. Duty Free Shoppers, Ltd. 764 F. 2d 1285, 1289 (9th Cir. 1985) (holding that Guam is immune from federal antitrust laws because the government of Guam is an instrumentality of the federal government over which the federal government exercises plenary control.); IT & E Overseas, Inc. v. RCA Global Communications, Inc., 747 F.Supp. 6, 11-12 (D.D.C.1990) (holding that corporation created by Guam legislature and run by board of directors appointed by the Governor of Guam with the consent of the legislature is entitled to federal instrumentality immunity). Given the status-based nature of the doctrine, the scope of the immunity conferred as a result of being a federal instrumentality is paradigmatically equivalent to that enjoyed by the United States itself, and therefore absolute. See, e.g., Sakamoto, 764 F. 2d at 1289 (There is no reason why Guam should enjoy less immunity than the federal government itself.). Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573 (2d Cir. 2000) (emphasis in original). Similar to Judge Katzmann, Judge Patterson of the Southern District of New York seems to have understood the logic of Sakamotos holding when applying the principle in PGMedia, Inc. v. Network Solutions Inc., 51 F.Supp.2d 389 (SDNY 1999) (holding defendant Network Solutions Inc. immune from an antitrust action pursuant to Sakamoto): [P]rivate entities under contract with federal instrumentalities are immune from Sherman Act liability for their actions taken pursuant to that contract. Thus, for example, in Sakamoto v. Duty Free Shoppers, Ltd., 764 F. 2d 1285, 1288-89 (9th Cir. 1985), cert. denied, 475 U.S. 1081, 106 S.Ct. 1457, 89 L.Ed.2d 715 (1986), the Ninth Circuit considered the case of a business which had an exclusive franchise with the government of Guam to sell specified merchandise to departing travelers at the Guam airport. The court determined that the government of Guam is an 26

instrumentality of the Federal Government and that it was immune from antitrust liability, thus affirming the district court's dismissal of the plaintiffs antitrust claims. ... The gravamen of the federal instrumentality immunity, as applied to nonGovernment entities, is that a party to whom an agency of the Federal Government delegates or contracts to perform a function or provide a service is entitled to the same protections against antitrust liability as the Government agency itself. Whether the Governments immunity will also apply to the contracting party, however, depends on the extent to which the Government is acting pursuant to a clearly articulated policy or program. Private parties acting in compliance with clearly articulated government policies or programs are immunized from antitrust liability to the same extent as the government entity. IT & E Overseas, Inc. v. RCA Global Communications, Inc., 747 F.Supp. 6, 11 (D.D.C. 1990). PGMedia, Inc. v. Network Solutions Inc., 51 F.Supp.2d 389, 405 (SDNY 1999). The Territorial Defendants argue in their Motion to Dismiss that The Ninth Circuit, has never said that the Government of Guam is an agency of the federal government like the Department of State or the Department of Defense, but that is not true. The previously bolded text in the block quotation above from Ngiraingas clearly shows that the Ninth Circuit Court of Appeals has said that Guam is much like a federal department or administrative agency. See supra, pg. 24. A legal expert on the issues presented in this case, Prof. Gary Lawson, agrees with the position of the Ninth Circuit in Ngiraingas and offers an analogy to illustrate why Guam officials should not be confused with their State counterparts who along with the United States government are the only two kinds of government who may properly tax Plaintiffs income while his is a resident of New York: From the time of the nations founding, state officials have often been called upon to implement federal statutes, but those officials are not by virtue of that fact subject to the [A]ppointments [C]lause. State officials, however, draw their powers from an independent sovereign entity within a system of dual governmental sovereignty; their authority is part of the background against which all federal authority is exercised. Just as state judges can adjudicate federal causes of action without becoming 27

constitutional judges of inferior courts, state officials can execute federal law without becoming officers of the United States. Not so with territorial officials, who owe their existence to and derive all their powers from federal law. Territorial officials appear unmistakably to be officers of the United States, who must be appointed in accordance with the terms of the [A]ppointments [C]lause. See Gary Lawson, Territorial Governments and the Limits of Formalism, 78 Cal. L. Rev. 853, 866-67 (1990). Perhaps the officials of the Government of Guam do not conspicuously work under the direct supervision of the federal government, but a very limited kind of oversight does exist with regard to Guams dealings with the federal government: The government of Guam shall consist of three branches, executive, legislative, and judicial, and its relations with the Federal Government in all matters not the program responsibility of another Federal department or agency, shall be under the general administrative supervision of the Secretary of the Interior. See 42 U.S.C. 1421a (emphasis added). The Territorial Defendants have been quick to attempt to distance themselves from the idea that they are federal officials and have denied Plaintiffs allegations that they are federal officers. See Defs Motion to Dismiss, pg. 7, 2 (The Governor and Legislators of Guam do not think of themselves as federal officers). If the Governor of Guam is not some kind of federal actor, why has Congress created obligations owed from the Governor directly to the Secretary of the Interior? See 48 U.S.C. 1422: The Governor shall prepare, publish, and submit to the Congress and the Secretary of the Interior a comprehensive annual financial reportwithin one hundred and twenty days after the close of [every] fiscal year.[t]he Governor shall transmit the comprehensive annual financial report to the Inspector General of the Department of the Interior who shall audit it and report his findings to Congress...[the Governor] shall also submit to the Congress, the Secretary of the Interior, and the cognizant Federal auditors a written statement of actions taken or contemplated on Federal audit recommendations within sixty days after the issuance date of the audit report. 28

48 U.S.C. 1422. The Territorial Defendants have argued elsewhere that the Governor of Guam is not subordinate to the Secretary of the Interior. See Defs Reply Memorandum, Dkt. # 28, pg. 2, 1 ([The Governor] does not take orders from the Secretary of the Interior.). But in order to execute the laws of the United States the Governor must be appointed by the President, a Court of Law, or a Head of a Department, see U.S. Const. art. II, 2, cl. 2, or be subordinate to a presidentially controlled appointee. Because the Governor of Guam does not gain his authority from any of the three repositories of the Appointments Clause and because the Territorial Defendants argue that the Governor is not subordinate to any executive branch official, his elected office violates the Appointments Clause, the Take Care Clause, and Article IIs Vesting Clause. 4. The Elected Governorship and Legislature of Guam are open to challenge because Supreme Court cases decided subsequent to the Insular Tariff Cases call into doubt the constitutionality of elected executive positions within the Government of Guam. A. The evolution of the argument that Congress creation of elected territorial executives violates the Appointments Clause.

The legal theory advanced in this case derives from a comment made in writing to Congress by Attorney General Richard Thornburgh in 1990 and from the scholarship of law professors Gary Lawson, Robert D. Sloane, and T. Alexander Aleinikoff. See Pls FAC 57; see generally Gary Lawson, Territorial Governments and the Limits of Formalism, 78 Cal. L. Rev. 853 (1990); Gary Lawson and Robert D. Sloane, The Constitutionality of Decolonization by Associated Statehood: Puerto Ricos Legal Status Reconsidered, 50 B.C. L. Rev. 1123 (2009). While the theoretical positions of legal scholars on the issue of the elected executive positions within territorial governments 29

may be written-off as conjectural or speculative, the fact that a former United States Attorney General shared and took a similar legal position as to that of the law professors in written comments to Congress in 1990 should not be overlooked with regard to the merit of this case and the issues presented by it. See Pls FAC 57. The two Supreme Court cases that directly call into question the constitutionality of the Organic Act of Guam are Buckley v. Valeo and INS v. Chadha, because those cases reigned in attempts by Congress to use plenary authorities under the Constitution to violate basic constitutional structural restrictions. Both Buckley and Chadha said that merely because Congress is given plenary authority to legislate regarding a specific area of law does not mean that Congress may violate other provisions of the Constitution when doing so. See Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam) (We see no reason to believe that the authority of Congress over federal election practices is of such a wholly different nature from the other grants of authority to Congress that it may be employed in such a manner as to offend well established constitutional restrictions stemming from the separation of powers.); see INS v. Chadha, 462 U.S. 919, 941 (1983) (As we made clear in Buckley v. Valeo, 424 U.S. 1 (1976): Congress has plenary authority in all cases in which it has substantive legislative jurisdiction, McCulloch v. Maryland, 4 Wheat. 316 (1819), so long as the exercise of that authority does not offend some other constitutional restriction.) (emphasis added). While Buckley and Chadha dealt with Congress plenary authority to regulate federal elections, see U.S. Const. art. I, 4, and immigration, id. at 8, cl. 4, this case deals with Congress plenary power to regulate the territories. See U.S. Const. art. IV, 3, cl. 2. The Supreme Court has said as recently as 2010 in Free Enterprise Fund. v. Public Company Accounting Oversight Board that Congress cannot restrict the 30

Presidents ability to remove an officer of the United States by writing multi-layers of protection into a removal provision within the Sarbanes-Oxley Act. See Free Enter. Fund v. PCAOB, 130 S.Ct. 3138 (2010) (holding a law in which Congress restricted the Presidents ability to remove an inferior officer, even though that inferior officer determines the policy and enforces the laws of the United States[as] contrary to Article IIs vesting of the executive power in the President, and noting that the President cannot take Care that the Laws be faithfully executed if he cannot oversee the faithfulness of the officers who execute them.); Cf. Bond v. United States, 131 S.Ct. 2355, 2365 (2011) (explaining that [i]n the precedents of this Court, the claims of individualsnot of Government departmentshave been the principal source of judicial decisions concerning separation of powers and checks and balances, and holding that a criminal defendant was not disabled from relying upon a 10th Amendment separation of powers claim when challenging the validity of her prosecution.) The Supreme Court has consistently said that the Appointments Clause has two important features with regard to Presidents control of officers of the United States: (1) the actual nomination from either the President, a judicial officer, or a Head of a Department and (2) the Presidents ability to removal officers of the United States with or without cause and thereby control the manner in which they execute and enforce the laws of the United States. See e.g., Sampson v. Murray, 415 U.S. 61, n.17 (1974); Myers v. United States, 272 U.S. 52, 119 (1926). The Supreme Court in Buckley interpreted the Appointments Clause as applying to appointees exercising significant authority pursuant to the laws of the United States: We think that the term Officers of the United States as used in Art. II, 31

defined to include all persons who can be said to hold an office under the government, is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an Officer of the United States, and must, therefore, be appointed in the manner prescribed by 2, cl. 2, of that Article. Buckley v. Valeo, 424 U.S. 1, 125-26 (1976) (per curiam) (citation omitted; quoting United States v. Germaine, 99 U.S. 508, 510 (1879)); see also Free. Enter. Fund, 130 S.Ct. 3138, n.5 (2010): The dissent quotes Buckleyfor the proposition that Congress has broad authority to create governmental offices and to structure those offices as it chooses. Post, at [3165]. The Buckley Court put offices in quotes because it was actually describing legislative positions that are not really offices at all (at least not under Article II). That is why the very next sentence of Buckley said, But Congress poweris inevitably bounded by the express language of the Constitution. 424 U.S., at 138 139 (emphasis added). Free. Enter. Fund, 130 S.Ct. 3138, n.5 (2010); Cf. U.S. Const. art. I, 2 (The House of Representatives shall choose their speaker and other officers) (emphasis added); see id. 3 (The Senate shall choose their other officers (emphasis added). Thus, simply because Congress has created offices for the Governor and members of the Legislature does not mean that those offices are constitutional since they appear to exist outside of Article II and the Territorial Defendants have argued that Guams officials are not federal officials. See Buckley at 132 (Unless their selection is elsewhere provided for, all officers of the United States are to be appointed in accordance with the [Appointments] ClauseNo class or type of officer is excluded because of its special functions.). The Territorial Defendants argue that Plaintiff cites no authority that the Appointments Clause or any other part of the Constitution trumps Congresss Article IV power to govern the territories. There is none. See Defs Motion to Dismiss, pg. 7, 2. 32

That is untrue. Plaintiff has identified a number of Supreme Court authorities that stand for the proposition that Congress may not offend the structural integrity of Article II by legislating away the Presidents authority to appoint and control those who execute and enforce the laws of the United States. See Pls FAC, 14 (citing to Morrison and Public Citizen v. U.S. Dept of Justice), 15 (citing to Free Enterprise Fund), 16 (citing to Glidden and Freytag), 53 (citing to Marbury, Germaine, Springer, Myers, Bowsher, and Chadha). In fact, Plaintiff specifically alleged and quoted in his FAC the legal holding and lesson of Chadha, which is that merely because Congress has plenary authority that does not give Congress power to offend other constitutional restrictions when legislating pursuant to a plenary power. See Pls FAC 51. B. The enforcement powers of the Governor of Guam pursuant to the Organic Act of Guam appear to violate the Appointments, Take Care, and Vesting Clauses of Article II.

The executive power of Guam shall be vested in an executive officer whose official title shall be the Governor of Guam. See 48 U.S.C. 1422. The Governor of Guam is responsible for the faithful execution of the laws of Guam and the laws of the United States applicable in Guam. Id. The Governor of Guam also shall appoint, and may remove, all officers and employees of the executive branch of the government of Guam, except as otherwise provided in this or any other Act of Congress, or under the laws of Guam, and shall commission all officers that he may be authorized to appoint. Id. The administration and enforcement of the Guam Territorial income tax shall be performed by or under the supervision of the Governor. Any function needful to the administration and enforcement of the income-tax laws in force in Guam pursuant to subsection (a) of this section shall be performed by any officer or employee of the 33

government of Guam duly authorized by the Governor (either directly, or indirectly by one or more redelegations of authority) to perform such function. See 48 U.S.C 1421i(c). The Governor or his delegate shall have the same administrative and enforcement powers and remedies with regard to the Guam Territorial income tax as the Secretary of the Treasury, and other United States officials of the executive branch, have with respect to the United States income tax. See 48 U.S.C. 1421i(d)(2) (for examination of the general authority of the Secretary of the Treasury to authorize civil actions for enforcement of the Internal Revenue laws, see 26 U.S.C. 7401). The Governor of Guam can initiate civil action[s] for the collection of the Guam Territorial income tax, together with fines, penalties, and forfeitures...in the name of and by the government of Guam in the District Court of Guam or in any district court of the United States or in any court having the jurisdiction of a district court of the Untied States. 48 U.S.C 1421i(h)(4). According to Guams Attorney General, the Governor can settle tax claims on his own authority. See Dkt # 30, Pls Memo. of Law in Opp. to Motion to Transfer, Exh. F, Guam AGs Motion to Withdraw as Counsel for the Government of Guam (citing to 48 U.S.C. 1421i and Santos v. Camacho, 2006 WL 581251, *7 (D. Guam 2006) for the proposition that the Governor may settle tax claims on his own authority). Examining the statutory powers and duties of the Governor of Guam and his subordinates clearly evidences Congressional intent to devolve upon the Governor wide and unbridled authority to execute and enforce the civil tax and coordinate criminal laws of the United States in order to levy, lay, assess, and collect income taxes even from State residents. Specifically disturbing is the Governors power to initiate and bring civil 34

actions in any United States district court and other federal courts like the article IV court found in the District of Guam, See 48 U.S.C. 1421i(h)(4), which is significant authority pursuant to the laws of the United States and one which the Buckley Court specifically said could only be carried about by properly appointed officers of the United States. Buckley at 140. The Territorial Defendants argue that the GTIT is enforced and collected on Guam, but that fact does not mean that income or tax exemptions that a State citizen earns after leaving the territory is not figured into the Form 1040 Guam Individual Income Tax Return 2011. Plaintiff figured in tax exemptions into his Form 1040 Guam Individual Income Tax Return 2011 that arose solely from transactions that occurred in the United States. Because the Governor and his subordinates powers are starkly reminiscent of the Commissions powers examined by Buckley, and because the Buckley Court held that [s]uch functions may be discharged only be persons who are Officers of the United States within the language of [the Appointments Clause], this Court should treat the Governor and his subordinates as officers of the United States and the Guam Department of Revenue and Taxation and the Legislature of Guam as agencies of the United States. Also, there exists no case to support the idea that Congress may wholly usurp the executive function and allow an officer of the United States to take office outside the two modes of the Appointments Clause. See U.S. Const. art. II, 2, cl. 2. The Territorial Defendants argue that the Territories Clause is so special from other plenary powers of Congress under the Constitution that there is nothing constitutionally problematic with Congress writing laws to allow non-appointed and irremovable de facto officers of the United States to execute and enforce the laws of the 35

United States over American citizens in Guam. As Plaintiff has previously argued, supra at pgs. 17-18, the Territorial Defendants do not even attempt to address the constitutionality of allowing non-appointed and irremovable de facto officers of the United States to execute and enforce the laws of the United States over the public rights of Plaintiff a citizen of the State of New York. To adopt the Territorial Defendants reasoning is dangerous to the structure of our entire form of government a form of government where the citizens hold ultimate power and control over a government comprised of elected representatives. American citizens have control over all government actors, except for judicial officers, but those government actors are appointed by the President or other judicial officers and who serve during good behavior and are impeachable. See U.S. Const. art. I, 3, cls. 6-7. If Plaintiff was never able to vote for any of Guams government officials and those officials are not executive branch officials or controlled by them, the very notion of what American government is becomes undermined by the presence test and the GTIT. Cf. Reid v. Covert, 351 U.S. 1, 14 (1957): [I]t is our judgment that neither the [Insular] [C]ases nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and, if allowed to flourish, would destroy the benefit of a written Constitution and undermine the basis of our Government. Compare with Stanley K. Laughlin, Cultural Preservation in Pacific Islands, 27 U. Haw. L. Rev. 331, 347-48 (2005) (noting that Reid was a plurality opinion that could not overrule the Insular Cases and that the Supreme Court has consistently stated that when there is no majority opinion the law of the case is that position taken by those Members who concurred in the judgments on the narrowest grounds (citing Grutter v. Bollinger, 36

539 U.S. 306, 325 (2003)) and explaining that in Reid the narrowest opinion was that of Justice Harlan who asserted that the Insular Cases, properly understood, still have vitality. Reid, 354 U.S. 1, 67 (1957)). When Plaintiff left the jurisdiction of Guam federal law had already created future obligations between him and the Governor that could not be fulfilled before Plaintiff rebecame a State citizen. Plaintiff could not have legally requested an income tax refund before his return to New York and the Territorial Defendants did not even act on Plaintiffs income tax return until August 22, 2012, some four months and eight days (130 days) after his leaving the Territory of Guam. See Exhibit A. Plaintiff never had an opportunity to vote for the Governor of Guam or members of the Legislature of Guam who all took officer before Plaintiff became a resident of Guam. Once Plaintiff left Guam, the power of his vote in Guamanian elections ceased to exist. See Pls FAC, 54. However, leaving Guam did not extinguish Plaintiffs obligations pursuant to federal law to the Governor and his subordinates who act as agents of the federal government when executing and enforcing the GTIT and the internal revenue laws. See Pls FAC 42. Such a situation can clearly create a here-and-now injury as noted by Bowsher v. Synar. See Pls FAC 14 citing to Bowsher v. Synar, 478 U.S. 714, 727 and n.5 (1986). The Territorial Defendants make a very interesting but inherently flawed argument that the Governors power to execute the laws of the United States is simply residual from when his office was held by a presidentially appointed Governor, and because of the residual nature of his power they seem to suggest that his office is not one of an officer of the United States within the meaning of the Appointments Clause. See Defs Motion to Dismiss, pg. 9, 3. They also admit that the Governor enforces the 37

Organic Act itself, federal grants, and the Territorial Income Tax Id. at pgs. 9-10. The argument that the manner in which an officer of the United States takes office is not dispositive of his status as an officer of the United States is inherently flawed because if that were the case, Congress could legislate any office within our government and label it a non-federal office or whatever the case might be, and shield that office holder from the Presidents control. Cf. Supra at pg. 32-33 (discussion in Free Enterprise Fund Court of Buckleys treatment of the word offices.). Congress has attempted this legislative trick in the past without success. In Free Enterprise Fund v. PCAOB the Court noted that Congress had tried to legislate around the problem of the PCAOBs members being federal officers by including language in the Sarbanes-Oxley Act that [n]o member or person employed by, or agent for, the [PCAOB] shall be deemed to be an officer or employee of or agent for the Federal Government by reason of such service, citing 15 U.S.C. 7211(a), (b). See Free Enter. Fund at 3142 (The parties agree that the Board is part of the Government for constitutional purposesand that its members are Officers of the United States who exercis[e] significant authority pursuant to the laws of the United States) (internal citations omitted). The stipulation between the government and the plaintiff that the PCAOB members were in fact federal actors who exercised significant authority pursuant to the laws of the United States has an obvious source: the idea the PCAOB was outside the federal sphere merely because Congress wrote it into the law was so preposterous that the DOJ would not even defend the idea. The argument that the Governor and members of the Legislature are not federal actors and are outside of federal government is equally as preposterous.

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Two cases the Territorial Defendants cite for the proposition that the power of the Appointments Clause is limited are Myers and Humphreys Executor. In Free Enterprise Fund Chief Justice Roberts explained how those cases support Plaintiffs contentions: The landmark case of Myers v. United States reaffirmed the principle that Article II confers on the President the general administrative control of those executing the laws. It is his responsibility to take care that the laws be faithfully executed. The buck stops with the President, in Harry Trumans famous phrase. As we explained in Myers, the President therefore must have some power of removing those for whom he can not continue to be responsible. [at 3152] Moreover, the Court has since said that the essence of the decision in Myers was the judgment that the Constitution prevents Congress from draw[ing] to itselfthe power to remove or the right to participate in the exercise of that power. Morrison, at 686, 108 S.Ct. 2597 (emphasis added). [at 3167] In Humphreys Executorthis Court held that Congress can, under certain circumstances, create independent agencies run by principal officers appointed by the President, whom the President may not remove at will but only for good cause. [at 3143] Free Enter. Fund, 130 S.Ct. 3138 (2010). Thus, three of the four separation of powers cases cited by the Territorial Defendants can be categorized as exception cases, discussing the outer bounds of Congress authority to restrict the Presidents removal authority over those executing the laws. None of those authorities stand for the proposition that Congress can create federal offices completely outside of Article II and allow the office holder to be charged with executing the laws of the United States, including Morrison. In fact, in Morrison v. Olson, 487 U.S. 654 (1988), the special prosecutor in that case who was the source of the separation of powers controversy was appointed by a special division of the United States Court of Appeals for the District of Columbia 39

(comporting with the Appointments Clause) see Morrison at 661 and n.3. The appointment of the special prosecutor was only lawful after the Attorney Generals certification to the special division, after his own preliminary investigation, that there are no reasonable grounds to believe that further investigation [of criminal activity by high ranking executive branch officials] is warranted. See Id. at 661. Lastly, although the Territorial Defendants do not acknowledge the fact in their Motion to Dismiss, Plaintiff has made a non-delegation argument against the Governor. See Pls FAC, 65. Congress should not be permitted to allow the Governor to prescribe needful rules and regulations for the enforcement of the GTIT. See 48 U.S.C. 1421(d)(2). That argument has merit because the policy choices for how to enforce federal tax law should be left only to members of the executive branch for all the same reasons Plaintiff argues that the Governor should be appointed by the President. C. The powers of the members of the Legislature of Guam and the power structure of the GDRT appear to violate the Appointments, Take Care, and Vesting Clause of Article II as well as the Presentment and Vesting Clauses of Article I. The Legislature of Guam

I.

The legislative power and authority of Guam shall be vested in a legislature, consisting of a single house, to be designated the Legislature of Guam[t]he legislature shall be composed of twenty-one members, to be known as senators, elected at large, or elected from legislative districts or elected in part at large and in part from legislative districts, as the laws of Guam may direct See 48 U.S.C. 1423. Every bill passed by the legislature shall, before it becomes a law, bepresented to the Governor. If he approves it, he shall sign it, but if not he shall, except as hereinafter provided, return it, with his objections, to the legislature[i]f he does not return itit 40

shall be a law in like manner as if he had signed it, unless the legislature by adjournment prevents its return, in which case it shall be a law if signed by the Governor within thirty days after it shall have been presented to him See 48 U.S.C. 1423i. All laws enacted by the legislature shall be reported by the Governor to the head of the department or agency designated by the President under section 1421a of this title. The Congress of the United States reserves the power and authority to annul the same. See Id. That notwithstanding any other provision of law, the Legislature of Guam may levy a separate tax on all taxpayers in an amount not to exceed 10 per centum of their annual income tax obligation to the Government of Guam. See 48 U.S.C. 1421i(a) (creating Uniformity Clause problems when enforced against State citizens); Cf. Wagoner v. Evans, 170 U.S. 588 (1898) (challenge to territorial legislature of Oklahoma subjecting cattle within Indian reservations to taxation). The Legislature of Guam has used its 48 U.S.C. 1423 power to legislate for Guam to create the office of the Director of the GDRT, who has the authority to execute and enforce the tax laws of the United States by way of a delegation of authority pursuant to 48 U.S.C 1421i. See 11 Guam Code Ann. 1106. Thus, the elected members of the Legislature of Guam act as officers of the United States when creating offices for officials in Guam who charged with aiding the Governor with the enforcement of the Guam Territorial Income Tax. See also Pls FAC 66 citing to 11 Guam Code Ann. 1106.1 (enabling statute for the Principal Guam Territorial Tax Attorney); see GUAM PUB. L. NO. 28-175:3 (2007). Plaintiff has raised a non-delegation, Presentment Clause, Appointments Clause, and general separation of powers challenge against the Legislature of Guam. See Pls FAC 40, 41, 44, 58, 60, 68 (incorporated into counts One through Four). 41

This challenge may also overcome a rule 12(b)(6) challenge because Congress may not delegate authority to quasi-legislative bodies in order for them to write laws that create offices of the United States, which diminishes the Presidents Presentment Clause powers to sign into law federal laws that create offices that are vested with the sovereign authority of the United States. See Pls FAC 66, 68, 72; Cf. INS v. Chadha, 462 U.S. 919, 941 (1983); Cf. Clinton v. City of New York, 524 U.S. 417 (1998). Congress is also prohibited from creating offices for the members of the Legislature of Guam because in order for those legislative officers to perform their statutory duty of legislating for Guam, they execute the laws of the United States (the United States Code). See 48 U.S.C. 1421i(a), 1423, 1423i. One might say the same about Congress, that it too gains its authority to legislate directly from the laws of the United States even though it is prohibited from executing the laws, see generally U.S. Const. art. I., but Congress authority to execute the laws of the United States and thereby legislate derives from Article I, which vests the legislative power in Congress, see Id. 1, whereas the Legislature of Guams power is derived from Article IV (the Territories Clause). Shortly stated, persons who take office pursuant to Article IV of the Constitution should not be exercising the constitutional authority of persons who take office pursuant to Article I and II. There is a Supreme Court case, Cincinnati Soap v. United States (challenging the validity of a tax on domestic coconut oil produced in the Phillipines) that would seem highly instructive on many of the issues Plaintiff raises against the Legislature of Guam: It does not follow that because a federal tax levied for the express purpose of paying the debts or providing for the welfare of a state might be invalid that such a tax for the uses of a territory or dependency would likewise be invalid. A state, except as the federal Constitution otherwise requires, is supreme and independent. It has its own government, with full powers of 42

taxation and full power to appropriate the revenues derived therefrom. A dependency has no government but that of the United States, except in so far as the United States may permit. The national government may do for one of its dependencies whatever a state might do for itself or one of its political subdivisions, since over such a dependency the nation possesses the sovereign powers of the general government plus the powers of a local or a state government in all cases where legislation is possible. In dealing with the territories, possessions and dependencies of the United States, this nation has all the powers of other sovereign nations, and Congress in legislating is not subject to the same restrictions which are imposed in respect of laws for the United States considered as a political body of states in union. Congress has power to create a local legislature for the Philippines; and it has done so. Congress has power to authorize the legislature to impose taxes for all the lawful needs of the islands, and to appropriate the proceeds for such uses and in such amounts as the legislature may determine and this it has done. Congress has power to appropriate the moneys here in question, and cause them to be paid from the national treasury into the Treasury of the Philippine Islands; and for this it has provided. It would result in a strange anomaly now to hold that Congress had power to devolve upon the Philippine Government the authority to appropriate revenue derived from local taxation as the government saw fit, but that Congress was without power to confer similar authority in respect of moneys which lawfully will come into the Philippine Treasury from the Treasury of the United States or from other sources apart from taxation. Cincinnati Soap v. United States, 301 U.S. 308 (1937) However, at the time Cincinnati Soap was decided the territorial government of the Philippines was controlled by the executive branch of the United States in unique ways that Guam simply is not. See generally Philippine Independence Act, ch. 84, 48 Stat. 456 (1934); Cf. 48 U.S.C. 1421, et seq. Additionally, the Philippine Independence Act was meant to last for only ten years in order prepare the Philippines for leaving behind its territorial status and becoming its own sovereign. See id. On July 4, 1946, the United States relinquished control over the Philippine Islands and declared them to be an independent sovereign, thus ending their status as a United States territory. See Proclamation No. 2695, 60 Stat. 1352, 11 Fed. Reg. 7517 (1946), reprinted in 22 U.S.C. 43

Sec. 1394 (1990). For all of the reasons Plaintiff has previously mentioned about the intervening authority regarding the separation of powers doctrine, Cincinnati Soap cannot by itself resolve the present controversy of a territorial legislators writing laws that create offices for the officials who have taxed Plaintiffs income. II. The Guam Department of Revenue and Taxation

The GDRTs general structure is set forth at 11 Guam Code Annotated 1106: 1106. Organization and Personnel. (a) The Director may establish such divisions or other organizational units as he may determine to be necessary for the efficient and effective administration and operation of the Department. Each such division or organizational unit shall be subject to the supervision and direction of the Director and shall have jurisdiction of such matters, exercise such powers, and perform such duties as may be assigned to it by the Director or otherwise by applicable law. (b) The Director may appoint and remove officers and other employees within the Department in accordance with the provisions of the Personnel Policy and the Civil Service Commission, 4 GCA Chapter 4. (c) The Director may delegate authority for the performance of any of his powers or duties to any officer or employee under his direction and supervision. The GDRT is clearly an instrumentality or agency of the federal government. The GDRT is by name a department and the federal government retains plenary authority over the Government of Guam, including its instrumentalities. The GDRT is a [d]epartment [that] shall be responsible under the Governor for the enforcement of the Guam Territorial Income Tax set out in 1421 of Title 48, U.S.C.A. See 11 Guam Code Ann. 1104(a). As the foregoing demonstrates, when enacting laws in furtherance of its 48 U.S.C. 1423 powers the Legislature of Guam has implicitly acknowledged that the GDRT can only operate at the behest of the Governor who also gains his authority exclusively from federal law. See 48 U.S.C. 1422 (charging the Governor with the 44

faithful execution of the laws of Guam and the laws of the United States applicable in Guam) (emphasis added). The statutory scheme of the GTIT clearly demonstrates that the GDRT acts as the United States Internal Revenue Service for Guam and the Governor serves as what we on the mainland know to be the Commissioner of Internal Revenue. See Pl.s FAC, 3435. Without the GDRT the Internal Revenue Service and the Treasury of the United States would have to act in place of the GDRT so that taxes could be collected and appropriated to fund the Government of Guam. Otherwise, Guam would have no legal authority to collect and appropriate funds to operate its congressionally created government and Congress would have to directly appropriate funds for that purpose. For the same reasons the Governor is prohibited from executing the laws of the United States the Director of the GDRT should be similarly prohibited. D. Federal laws that create elected executive positions within the Government of Guam are not needful Rules or Regulations within the meaning of the Territories Clause.

Plaintiff would like to restate a very simple argument by professor Lawson about an interpretation of the Territories Clause: the clause only allows for needful rules and regulations. Thus, if the Article I and II already provide for the means for officers of the United States (both Article II executive officers and Article I legislative officers) to perform their constitutional functions, then most of the Organic Act is just not needful and almost surely not constitutional. If Congress wants to give Guam self-government, the Constitution provides for that too because it allows Congress to admit territories as States. See U.S. Const. art. IV, 3, cl. 1 (New states may be admitted by the Congress into this union). If Congress wants Guam to have self-government it should make Guam a State. 45

E.

Neither the President nor Congress may acquiesce in separation of powers violations.

The choices we discern as having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked. There is no support in the Constitution or decisions of this Court for the proposition that the cumbersomeness and delays often encountered in complying with explicit constitutional standards may be avoided, either by the Congress or by the President. With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution. INS v. Chadha, 462 U.S. 919, 959 (1983) (emphasis added). F. The Governor exercises significant authority over the laws as discussed in Buckley v. Valeo.

The Territorial Defendants argue that officers of the Government of Guam do not [e]xercise significant authority over federal actions and claim that because of the lack of that element, Plaintiffs Appointments Clause challenge fail the Buckley test. See Defs Motion to Dismiss, pg. 9, 3. If the Ninth Circuit Court of Appeals has said the Government of Guam is in essence an instrumentality of the federal government, much like a federal department or administrative agency, see Ngiraingas v. Sanchez at 1371, then its executive must be someone who exercises significant authority as the Supreme Court qualified in Buckley as being indicative of an Appointments Clause violation.

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Elsewhere the Territorial Defendants have argued that Guam is much like a State. If Guam is like a federal State, then that States Governor would seem to be an individual exercising significant authority pursuant to the laws of the United States. The authority for an individual in federal government to levy a tax on an American citizens entire income for a tax year must be the exercise of significant authority pursuant to the laws of the United States. Americas war for independence from England was founded in part on the levying of arbitrary taxes. The Framers understood that and created the Uniformity Clause and the Appointments Clause to ensure that Congress (who has the sole power to levy taxes) is at least restricted in its ability to control the individuals executing the tax laws that Congress writes. CONCLUSION A reoccurring theme throughout this case is the absence of the right to participate in elections for government officials. Plaintiff complains of his inability to vote for the Governor and members of the Legislature of Guam who have taxed his income, and the Territorial Defendants point out the obvious injustice of their inability to vote for the President and congressional representatives who have written and applied the Internal Revenue laws to Guam that the Governor is obligated to enforce. Both parties argue that their inability to participate in these elections and the absence of democratic power over government officials who write and enforce the laws in both governments violates the spirit of our Constitution. The movants and Plaintiff agree that the circumstances that have brought about this litigation are equally unfair. If members of Congress in the year 2013 want to lord over Americans in the Guam and act as colonial masters, holding the keys to statehood and withholding the full benefits of our Constitution, some 112 years after Incorporation Doctrine began with 47

DeLima, if that is the policy of Congress then this Court should at least circumscribe the exercise of such authority and hold that it is subject to the structural restraints of Article I and II when that authority extends beyond Guam and reaches into New York. Presently there is no means for ensuring that such authority is circumscribed, short of declaring the Organic Act of Guam unconstitutional in its entirety. While sacrificing the democracy of tens of thousands of Americans in Guam when deciding an action brought by a single citizen of New York seems wrong and undemocratic doing so will only prompt Congress to act upon its art. IV, sec. 2, cl. 3, authority to lend real self-government and democracy to Guam so that the future diffusion of federal power in Guam does not offend basic constitutional restrictions that are in force in New York and should be in force in Guam. If Congress wants to allow Guams territorial government to exist in perpetuity with no hope of becoming a State government, and in doing so relegate American citizens in Guam as second-class citizens, then the practical consequences of Congress authority to do so should be quarantined from citizens of States, including bona fide residents pursuant to the internal revenue laws presence test. Plaintiffs income taxes and his constitutional rights should not be sacrificed in the name of such an ill-conceived, repugnant, and tired judicial doctrine as that of the doctrine of Territorial Incorporation. The Territorial Defendants Motion to Dismiss should be denied and Plaintiff afforded the opportunity to proceed to discovery and develop a factual record to support his claims.

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Respectfully submitted this 22nd day of January 2013

_________________________ Dustin J. OBrien 30 West 60th Street, Apt. 8L New York, New York 10023 (718) 736-5515 dustin.obrien@live.law.cuny.edu

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