UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________

KENNETH L. SMITH,

Plaintiff,

v. Civil Action No. 13-

CV-0298 (KBJ)

HONS. ANTONIN G. SCALIA, et al.,

Defendants.
________________________________________________

[“Judges do not simply announce a legal con-

clusion. They reason their way to that conclu-
sion in an opinion written for all to see. The obli-
gation to provide legally defensible reasoning in
a publicly accessible format prevents a judge
from escaping accountability. Indeed, a good
judicial opinion is transparent and informative.
It shows that the decision is principled and rea-
soned. The strength of this reasoning matters.”
Stephen Breyer, Making Our Democracy Work:
A Judge’s View 83 (2010). It should be noted for
the record that Judge Jackson clerked for Justice
Breyer. In other words, she really ought to know
better.]

75
 MEMORANDUM OPINION

In the year 2000, the Colorado Supreme Court

denied Plaintiff Kenneth L. Smith’s (“Smith’s” or
“Plaintiff’s”) application for membership to the Col-
orado bar after Smith refused to submit to a mental
status examination.

[“Half the truth is often a lie in effect,” Twing

v. Schott, 338 P.2d 839, 841 (Wyo. 1959), and if a
judge is economical with the facts, it is almost
certainly because an adequate explication would
cast aspersions on their conclusion. Judge Jack-
son assiduously avoids discussion of why I refu-refu -
sed to submit to the Board of Law Examiners’
unlawful demand,
demand which was stated clearly in
the record and with objective record support.

The right to resist an unlawful order by a pub-

lic official was one of “the rights of Englishmen,”
traceable to Magna Carta. See Queen v. Tooley,
[1710] 29 Eng. Rep. 349 (K.B.) (right to use force
to resist an illegal arrest). And if the order was
unlawful, it logically follows that any retribution
by public officials for that refusal is, as well. Just
as Judge Jackson has the right to lawfully resist
an order from a cop to spread her legs for a rape,
I have every right to lawfully resist government
officials’ illicit attempts to rape my mind.

76
 Some of the legal flaws in the Board’s order
(yes, there are more) demanding that I submit to
their “mental fitness” examination were (1) that
they demanded that I pay for it, Colo. R. Civ. P.
201.6(2), in violation of the federal ADA,A (2) the
Inquiry Panel failed to properly put my ‘mental
fitness’ into issue, as required by their enabling
statute, as no allegation was stated with appro-
priate specificity, Colo. R. Civ. P. 201.9(6)(b), (3)
their report was not issued within thirty days of
the decision, as required by their enabling stat-
ute, Colo. R. Civ. P. 201.9(6)(a), and (4) as the
Board never codified what “mental fitness to be a
lawyer” was, the standard was void for vague-
ness,B and it has been applied in an arbitrary
and capricious manner against malcontents.C

A
See, Dare v. California, 191 F.3d 1167, 1173 (9th Cir. 1999)
($6 charge for handicapped placard violates ADA; collecting
pre-1999 cases). The ADA also protects pedople who are not
disabled, but who are "treated by a [public] entity as having a
substantially limiting impairment." 29 C.F.R. § 1630.2(1);
Richards v. City of Topeka, 173 F.3d 1247 (10th Cir. 1999). In
short, they can’t single me out for disparate treatment without
running afoul of the ADA.
B
Connally v. General Construction Co., 269 U.S. 385, (1926);
Trail Ridge Ford, Inc. v. Colorado Dealer Licensing Board, 543
P.2d 1245 (Colo. 1975).
C
E.g., People v. Maynard, No. 09-PDJ-028 (Colo. 2010) (former
Green Party Attorney General candidate; order issued in the
wake of a fee dispute); Alan Prendergast, Blackburned, West-
word, Dec. 13, 2007 (Mark Brennan, a Stanford Law graduate
with 25 years at bar who happened to win the wrong case).
77
 Nominally, the Board was being supervised
by the Colorado Supreme Court. In practice, the
Court showed such “exaggerated deference,” In
re Haines, 177 P.3d 1239, 1251-52 (Colo. 2008)
(Coats, J, dissenting), that there were no mean-
ingful controls upon its conduct. It assiduously
ignored the flagrant sins of politically powerful
barristers such as erstwhile Congressman Scott
McInnis,D and (presumably) bribe-taking federal
judge Edward Nottingham,E while using psychi-
atric examinations to harass malcontents. (It is
significant that Mr. Nottingham presided over
the initial case in this grueling saga.)

D
Alan Prendergast, Scott McInnis: The Waterlogged Years (Pt.
3), Jun 23, 2010, Westword Latest Word (blog) (McInnis; felony
grand theft by deception), Maximillian Potter, Power Broken,
5280.com (June 2010) (Democratic "fixer" Willie Shepherd, in a
comically Grisham-esque (“Bandini, Lambert, and Locke”) case
of mail fraud). Prosecutor discretion can cover a litany of sins.
E
Disgraced Chief Judge Nottingham of the District of Colorado
resigned in 2008, forfeiting a ~$3,000,000 retirement annuity.
News reports surfaced indicating that the Judge was patroniz-
ing top-drawer hookers on a weekly basis, begging a question
of where he could spend $50-75,000 a year on his "habit" on a
federal judge’s salary and not have his financially-savvy wife
notice. As soliciting sex from a hooker was a petty offense in
Denver at the time, it was not a high crime or misdemeanor, as
contemplated in the Constitution. Review of his EIGA forms
reveals that the only way he could have obtained that kind of
money was by accepting bribes, and he really needed that fat
retirement annuity. He resigned, which constitutes an admis-
sion.
78
 As we all know, judges hate it when people
sue fellow judges. But in this case, the Colorado
Supreme Court was negligent in supervision of a
regulatory agency, which is NOT a judicial func-
tion. As this Court’s precedent makes it clear
that judicial immunity would not extend to that
kind of function, see Forrester v. White, 484 U.S.
219 (1988), the state justices were sued in tort,
but the entire United States Reports is no match
for a bribe-taking federal judge and a rabid pack
of self-interested state justices.

Another significant fact was that the Inquiry

Panel openly admitted their extreme disapproval
of my journalistic effort to expose a televangelist.
When the klieg lights of the media were turned
on them in a different context, the Colorado Sup-
reme Court understood the dangers inherent in
official retaliation for protected speech, Tattered
Cover, Inc. v. City of Thornton, 44 P.3d 1044
(Colo. 2002), but in keeping with their policy of
extreme deference toward the Board, they turned
a blind eye in my case. Political abuse of psychi-
atry is not uncommon in America.F]

F
E.g., Lauren Walker, Judge Orders Anti-Obama Filmmaker
D'Souza Receive Psychological Counseling, Newsweek, Jul. 14,
2015 ("The psychiatrists D’Souza was first ordered to see found
no signs of depression, but [Clinton appointee] U.S. District
Judge Richard M. Berman overruled their findings and order-
ed D'Souza see a new psychological counselor weekly.")
79
 Following that denial and for the next nine years,
Smith filed a series of lawsuits against the justices
of the Colorado Supreme Court and against various
state and federal judges who ruled against him in
subsequent actions stemming from the adjudication
of his bar application. The instant amended com-
plaint, which Smith has filed pro se against the
United States and federal judges (collectively,
“Defendants”), marks the eleventh lawsuit that
Smith has filed stemming from the denial of his
admission to the Colorado bar. (Amended Compl.
(“Compl.”), ECF No. 8.)

[Translated, “WE ARE YOUR RULERS!!!”

There’s a certain elegance in Justice Thomas’s

response. Quoting Churchill, he intones that in
“fighting for freedom we must ‘never give in,
never give in, never, never, never, never … never
give in except to convictions of honor and good
sense. Never yield to force; never yield to the
apparently overwhelming might of the enemy."
Clarence Thomas, "Never Give In," Speech
(Hillsdale, MI), Sept. 9, 2000.

80
 You will forgive me, Ms. Jackson, but I will not
countenance your rule.]

In the instant 277-page pleading,

[Ironically, the purpose of this massive plead-

ing was to streamline the litigation by facilitat-
ing judicial notice, but federal judges will always
find something to whine about.]

Smith generally maintains that the judges involved

in his latest lawsuit, like those who decided all of
his previous actions, have violated the Constitution
and international law, and are therefore subject to
criminal indictment and removal from the federal
bench. (See id. ¶¶ 601-617.)

Before this Court at present are two motions to

dismiss the amended complaint. (ECF Nos. 36, 37.)1

1
The two motions were submitted by two different groups of
defendants in this matter, each of which is represented by
separate counsel. One motion and supporting memorandum
was filed on behalf of the judges from the D.C. Circuit and D.C.
District Court (the "D.C. Defendants"). (See Mot. to Dismiss of
the D.C. Ct. Defs. ("D.C. Defs.’ Mot."), ECF No. 36.) The other
motion and memorandum was filed on behalf of all the other
judges and justices named in the complaint and also the
United States (the "Non-D.C. Defendants"). (See Fed. Judicial
Defs.’ Mot. to Dismiss ("Non-D.C. Defs.’ Mot."), ECF No. 36.)
Smith has responded to each motion in turn. (See Resp. in
Opp’n to Non-D.C. Defs.’ Mot. to Dismiss ("Opp’n I"), ECF No.
81
In their motions, Defendants contend that the com-
plaint must be dismissed pursuant to Federal Rule
of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction and also pursuant to Rule 12(b)(6) for
failure to state a claim upon which relief can be
granted. (See Mem. in Supp. of Mot. to Dismiss of
the D.C. Court Defs. (“D.C. Defs.’ Mem.”), ECF No.
36-1, at 3, 10-22; Non-D.C. Defs.’ Mot. & Mem. of
Law in Supp. of Mot. to Dismiss (“Non-D.C. Defs.’
Mot.”), ECF No. 37, at 14-23.)2 In particular,
Defendants argue that absolute and sovereign
immunity bar Smith’s claims; that no cause of
action exists for several of the claims Smith alleges;
and that, in any event, certain of Smith’s claims are
entirely precluded by both res judicata and issue
preclusion because the complaint raises claims that
previous courts have already heard and rejected.
(D.C. Defs.’ Mem. at 10-22; Non-D.C. Defs.’ Mot. at
14-23.) Additionally, Defendants ask the Court to
impose a pre-filing injunction against Smith in
order to bar him from initiating any new pro se
actions in this Court without first obtaining leave to
file. (D.C. Defs.’ Mot. ¶ 10; Non-D.C. Defs.’ Mot. at
6.) The Non-D.C. Defendants—i.e., the United

41; Resp. in Opp’n to D.C. Defs.’ Mot. to Dismiss ("Opp’n II"),

ECF No. 43.)
2
Page numbers throughout refer to the number assigned by
the Court’s electronic filing system.
82
States and the individual defendant judges who are
not appointed to the United States courts for the
District of Columbia—also seek monetary sanctions.
(Non-D.C. Defs.’ Mot. at 6.)

Having considered Plaintiff’s complaint and

Defendants’ arguments for dismissal, this Court
concludes (1) that sovereign immunity deprives the
Court of jurisdiction over Smith’s claim for damages
against the United States and the individual judge
defendants (to the extent that the individual judges
have been sued in their official capacity), (2) that
absolute judicial immunity bars the claims against
the individual judge defendants in their personal
capacity, and (3) that there is no cause of action
available for the non-monetary relief that Smith
seeks. Accordingly, Defendants’ motions to dismiss
will be GRANTED and the instant complaint will
be dismissed with prejudice. Additionally, in light of
the fact that Smith has now initiated eleven sepa-
rate actions seeking relief for the denial of his bar
license, Smith will be ENJOINED
ENJOINED from filing any
subsequent actions in the U.S. District Court for the
District of Columbia arising out of the same allega-
tions in the instant amended complaint without first
seeking leave of court. A separate order consistent
with this opinion will follow.

[Is anyone really surprised? When judges judge

fellow judges, they routinely indulge in what the
Breyer Commission referred to as “undue guild

83
 favoritism.” Stephen Breyer, et al., Implemen-
tation of the Judicial Conduct and Disability Act
of 1980: A Report to the Chief Justice (Sept.
2006) at 1. Never mind that the judge has no
lawful authority to impose such a penalty, as she
failed to follow the process prescribed in Fed. R.
Civ. P. 11. “Rules” are for lesser women.]

I. BACKGROUND

A. History Of Prior Litigation

As noted, between 2000 and 2009, Plaintiff Smith

filed ten lawsuits that relate to the denial of his
admission to the Colorado bar.3 A detailed substan-
tive and procedural history of many of Smith’s ear-
lier cases is described in the Tenth Circuit’s consoli-

3
See Smith v. Mullarkey, No. 00-2225 (D. Colo.) (Smith I);
Smith v. Mullarkey, 121 P.3d 890, 891 (Colo. 2005) (Smith II);
Smith v. The Tenth Circuit, No. 04-1222 (D. Colo.) (Smith III);
Smith v. Mullarkey, No. 04-1223 (D. Colo.) (Smith IV); Smith
v. Bender, No. 07-1924 (D. Colo.) (Smith V); Smith v. Ebel, No.
08-0251 (D. Colo.), later restyled as Smith v. Krieger, 643 F.
Supp. 2d 1274 (D. Colo. 2009) (Smith VI); Smith v. Anderson,
No. 09-1018 (D. Colo.) (Smith VII); Smith v. Eid, No. 10-0078
(D. Colo.) (Smith VIII); Smith v. Arguello, No. 09-2589 (D.
Colo.) (Smith IX); Smith v. Thomas, No. 09-1926 (D.D.C.)
(Smith X). Each of these cases was dismissed, and the federal
judges involved in these dismissed cases are now named as
defendants in this action.
84
dated appeal of three such cases, and will not be
repeated here. See Smith v. Krieger, 389 F.App’x
789, 792-93 (10th Cir. 2010). In short, after the
Colorado Supreme Court denied his application for
bar membership, Smith brought suit against the
Colorado Supreme Court justices in federal court in
the District of Colorado and in Colorado State court
seeking to overturn that decision. See id. at 791.
The U.S. District Court in the District of Colorado
dismissed the complaint; the Tenth Circuit affirmed
the dismissal on appeal; and the Supreme Court of
the United States denied certiorari. See id. at 791-
92, 799-800. Smith then filed suit against the judge
on the U.S. District Court for the District of Colo-
rado who decided the matter, and each of the Tenth
Circuit judges and Supreme Court justices who were
involved in upholding the dismissal decision. See id.
This pattern repeated itself in Colorado district
court eight more times—in effect, each time a court
rendered an opinion unfavorable to Smith, he
responded by filing a new lawsuit naming the
authors of the prior judicial opinions as defendants
and alleging that those judges, too, had violated his
constitutional rights. See id. at 791-92. Moreover, in
several of the cases, Smith specifically requested
that the federal judges who ruled against him be
removed from the bench “due to their alleged failure
to maintain the ‘good Behaviour’ required for
continued tenure under Article III,” and he also
claimed an alleged right to prosecute the defendant
judges pursuant to authority he maintains is vested

85
in him under the Ninth and Tenth Amendments, id.
at 796—claims that Smith brings again now. In
addition, Smith’s sole attempt to bring suit in
Colorado state court fared no better: the Denver
County District Court dismissed the case on the
grounds that it lacked jurisdiction to consider
challenges to the state supreme court’s decisions
regarding bar admission; the Colorado Supreme
Court affirmed dismissal; and the Supreme Court
denied certiorari. See Smith III, 121 P.3d 890, 891
(Colo. 2005), cert. denied, 547 U.S. 1071(2006).

Eventually, the U.S. District Court for the Dis-

trict of Colorado put an end to the filings in that jur-
isdiction: at the same time that it dismissed Smith’s
seventh lawsuit (the eighth and ninth lawsuits in
Colorado federal court were still pending), the court
imposed a pre-filing injunction barring Smith from
filing future actions in that court without first
meeting certain requirements. Smith VII, No. 09-
1018, 2009 WL 4035902, at *3-4 (D. Colo. Nov. 19,
2009) (“Smith will not be permitted to file new ac-
tions in this Court without the representation of a
licensed attorney admitted to practice in the District
of Colorado. The requirement that he have such
counsel will be lifted only if he has obtained
permission from this Court to proceed pro se.”). The
court based the injunction on the number of suits
Smith had filed stemming from the same facts (his
denial of admission to the Colorado Bar); Smith’s
“penchant for making duplicative arguments”; and

86
the “increasingly abusive” tone of his filings. Id. at
*4.4

[First and foremost, I have a right as a citizen

and duty as a litigant to inform the Court about
the law controlling the case. Second, there is a
palpable difference between “abusive” language
(which is never permissible) and language which
“disturbs” a judge (if it explains the law, there is
nothing a judge can lawfully do about it). A par-
ticularly florid example of the former follows:

Plaintiff has news for these slime ball, piece

of shit, ass clown judges (Bowie, Canby, Tho-
mas, and Fletcher-this means you) that think
they are going to rig the system … You cock
suckers are on notice. …

Civil unrest is the predicted outcome of such

criminal and civil misconduct That civil un-
rest is going to start at the doorsteps of the
slime ball, mother-fucking judges….

4
Plaintiff’s prior complaints, like the one at issue here, con-
tained "abusive language" that, among other things, accused
the judicial defendants of "tyranny," and "suggest[ed] that
violence against federal judges may be justified[.]" Smith VII,
2009 WL 4035902, at *4; see also Smith v. Krieger, 389 F.
App’x at 800 (noting that Plaintiff’s "briefs contain vulgar
language, threats of lethal violence against judges[,]" and "per-
sonal attacks" on judges).
87
Pl. Paul Hupp’s Pet. for Reh.; Reh. En Banc,
Hupp v. Educational Credit Mgmt. Corp., No. 08-
56403 (9th Cir. filed Jun. 17, 2010) at 2, 6.

Now, let us contrast that with what the judges

are calling “abusive” in my pleadings. We begin
with an outline of the state of the law:

1. The right to assassinate a tyrant in defense

of lives and liberties is absolute (from Cicero
to St. Pope John Paul II, with Blackstone,
Locke, and virtually every Framer in abso-
lute agreement).
2. The public official who exceeds his lawful
authority is a tyrant. (Blackstone, Locke,
Madison, et al., ad nauseum).
3. The office of the judge is jus dicere; he may
not write law, but only “deliver” it (Bacon,
Coke, Blackstone, Hamilton, et al., ad nau-
seum).

Ergo, any judge who writes law under the

guise of “interpreting” it has exceeded his
lawful authority and is a tyrant, and may
be lawfully assassinated.

4. The Framers’ Constitution provides an array

of effectual remedies for abuses of power by
judges, thereby obviating the need for judi-
cial assassinations. (Locke, Jefferson)

88
5. This prohibition only exists as long as judges
are willing to enforce remedies embedded in
the Framers’ Constitution. (Roberts, Scalia,
et al., ad nauseum.)
6. The government has a duty to afford citizens
the protections of the law (Marbury), and the
failure to do so is a fundamental breach that
voids the Constitution (N.H. Const., art. 10).
6a. In the alternative, the judge who denies the
protections of the law is waging war against
the Constitution (Cooper v. Aaron), and is an
enemy of it, and may be lawfully opposed by
any means (Locke, Jefferson).

Ergo, under these conditions, assassination

of the scofflaw judge is not merely a natural
right, but a solemn duty of citizenship.

With that foundation laid, I invite the reader

to review representative remarks, made in good
faith to this Court:

1. The Right To Assassinate a Tyrant Is

Absolute

The doctrine of nonresistance against arbi-

trary power, and oppression, is absurd, slav-
ish, and destructive of the good and happi-
ness of mankind.
—N.H. Const., art. 10.

89
 Anglo-American jurisprudence begins with
an incorrigible first principle, recognized
before Magna CartaG: The right of the citizen
to use lethal force to defend his life and lib-
erties against the depredations of any op-
pressor—whether s/he wears a gaudy crown
or a black robe—is absolute. A fair summa-
tion of English jurisprudence is the develop-
ment of effective legal remedies for those
whose rights have been wrongfully invaded,
so that the subject would never be put in a
position where s/he is forced to resort to that
remedy. As Thomas Jefferson explained, the
purpose of a written constitution is to “bind
up the several branches of government … to
render unnecessary an appeal to the people,
or in other words a rebellion, on every

G
Before Magna Carta, Bishop John of Salisbury wrote that [t]o
kill a tyrant is not merely lawful, but right and just … the law
rightly takes arms against him who disarms the laws, and the
public power rages in fury against him who strives to bring to
nought the public force.” John of Salisbury, Policraticus, Bk.
iii, ch. 15, reprinted in, The Statesman’s Book of John of Salis-
bury lxxiii (John Dickenson trans., Russell & Russell, 1963)
(1159). Aquinas concurred, in observing that a violent response
to tyranny is not merely permissible, but predictable: “[M]en
remove themselves from a tyrant as from cruel beasts, and to
be subject to a tyrant seems the same as to be mauled by a
cruel animal.” St. Thomas Aquinas, De Regimine Principum, in
St. Thomas Aquinas: Political Writings 15 (R.W. Dyson trans.,
Cambridge U. Press 2002) (1267).
90
infraction of their rights.” Thomas Jefferson,
Notes on the State of Virginia 255 (Query 13)
(1783). Moreover, where the source of that
harm is public officials, acting outside of the
scope of their lawful authority, violence would
not be an act of rebellion per se but rather,
support and defense of "the Constitution and
laws of the United States of America against
all enemies, foreign and domestic." 8 C.F.R. §
337.1. By this Court’s own assessment, the
wayward judge is an enemy of the Consti-
tution who may be opposed by any means
reasonably necessary, as no “judicial officer
can war against the Constitution without
violating his undertaking to support it”—and
the alternative is to reduce that venerable
document to “a solemn mockery.” Cooper v.
Aaron, 358 U.S. 1, 18 (1958) (quotation omit-
ted).

The only outstanding legal question is

whether the right to assassinate a tyrant was
paramount law superior to even the Consti-
tution, or an “unenumerated” right, retained
by the people by virtue of the Tenth Amend-
ment. Betraying a certain element of deism,
Blackstone acknowledges it as jus cogens law,
which no government may lawfully abridge:

This law of nature, being coeval with man-

kind and dictated by God himself,
himself is of

91
 course superior in obligation to any other
—It
It is binding over all the globe in all
countries, and at all times;
times no human
laws are of any validity, if contrary to this:
and such of them as are valid derive all
their force, and all their authority, medi-
ately or immediately, from this original.H

The premier intellectual ‘lights’ in our

Framers’ generation—Benjamin Franklin and
Thomas Jefferson—both proposed that the
phrase "Rebellion against Tyrants is Obe-
dience to God" be emblazoned upon our
nation’s Great Seal. David W. Hall, Genevan

H
1 Wm. Blackstone, Commentaries on the Laws of England 41
(1765) (emphasis added); see also, John Locke, Second Treatise
of Government § 207 (the right to use lethal force only accrues
if and when all legal remedies have been foreclosed); Pream-
ble, Universal Declaration of Human Rights, G. A. Res. 217A
(III), U. N. Doc. A/810 (1948) (lethal force always justified
where the rule of law fails); Paul Butler, By Any Means Neces-
sary: Using Violence and Subversion to Change Unjust Law,
50 U.C.L.A. L. Rev. 721 (2003) (the assassination of American
judges is permissible under a “just war” theory).
Happily, this interpretation of natural law also meets with a
moral blessing. St. Pope John Paul II, who experienced Soviet
tyranny at first hand, observed that any violent result of a
struggle against an oppressive government is morally "attri-
butable to the aggressor whose action brought it about." Pope
John Paul II), Evangelium Vitae, Sec. 55, Encyclical Letter on
the Value and Inviolability of Human Life, Mar. 25, 1995. Even
Justice Scalia could not obtain absolution.
92
 Reform and the American Founding 8 (Lex-
ington Books 2003). And while it might be a
trifle light on due process, the lynching of a
corrupt or tyrannical judge would hardly
qualify as “immoral,” as the firebrand Reve-
rend Henry Ward Beecher observes:

Take all the robes of all the good judges

that have ever lived on the face of the
earth and they would not be large enough
to cover the iniquity of one corrupt judge.
… Nothing can atone for, nothing can
palliate his wickedness. No words can be
too fiery, no edge too sharp, no thunder too
mighty, and no lightning too hot, to scorch
such a man.I

The attentive legal scholar will note that not a

single word of that was mine. This is the nature
of the legal brief: Whereas my personal opinion
counts for squat, when interpreting the Constitu-
tion, the opinion of the Framers and the lumina-
ries they relied on carry enormous weight. When
I say that the right to kill a tyrant is absolute, I
am saying that that was the view of the Framers
—and there is no contrary authority. I go on:

I
Rev. Henry Ward Beecher, “Works Meet For Repentance”
(sermon) Dec. 20, 1868, reprinted in Plymouth Pulpit, Vol. 1,
Iss. 15 (Ford & Co. 1869) at 241. Concurrences abound.
93
 2. The Right to Meaningful Access to the
Courts Is Absolute.

The absolute nature of the right to assas-

sinate a tyrant is what makes the right of
access to the courts a sine qua non of civilized
society. As Justice Moody wrote a century
ago: “The right to sue and defend in the
courts is the alternative of force … it is the
right conservative of all other rights, [and] …
one of the highest and most essential privi-
leges of citizenship.” Chambers v. Baltimore
& Ohio R. Co., 207 U.S. 142, 148 (1907); cf.,
Scott v. Sandford, 60 U.S. 393 (1857) (prop-
erty has no right of access to the courts).

Over the centuries, both this Court speak-

ing ex cathedra and individual Justices have
said a great deal about the nature and scope
of this right. For instance, a certain jurist of
your close personal acquaintance [this motion
asks Justice Breyer to recuse] writes:

Does the law give [William Marbury] the

power to enforce [his legal right to a com-
mission], that is, does Marbury have a
legal remedy? Again, the Court answered
yes, and for reasons that are not entirely
technical. The United States is a “govern-
ment of laws, and not of men.” Under such
a government, “where there is a legal

94
 right, there is also a legal remedy.”
Indeed,
Indeed the “very essence of civil liberty
certainly consists in the right of every
individual
individual to claim the protection of the
laws,
laws whenever he receives an injury.”

Breyer, Making Our Democracy Work at 16-

17 (italics in original, bold-type added; quot-
ing Marbury v. Madison, supra). As a “right”
cannot exist in the absence of the corres-
ponding right to an effectual remedy for its
breach, Ashby v. White [1703] 92 Eng. R. 126,
136 (H.C.); Poindexter v. Greenhow, 114 U.S.
270, 303 (1884) (“To take away all remedy for
the enforcement of a right is to take away the
right itself"), if a proposed interpretation of
the law leaves a citizen bereft of any effectual
remedy for the wrongful invasion of a vested
legal right, it is plain error, Marbury v. Madi-
son, 5 U.S. at 163, as it is "a monstrous
absurdity in a well organized government,
that there should be no remedy, although a
clear and undeniable right should be shown
to exist." Kendall v. United States, 37 U.S.
524, 624 (1838). …

"Courts and judges always lie," Martin Sha-

piro, Judges as Liars, 17 Harv. J.L. & Pub. Pol’y
155, 155 (1994), and “[h]alf the truth is often a
lie in effect.” Twing v. Schott, 338 P.2d 839, 841
(Wyo. 1959). And to call my remarks “abusive”

95
was a whopper too large for Burger King to sell.
But why would judges like Ketanji Brown Jack-
son be compelled to lie like this? It’s not rocket
science….

In light of the above, there is wondrous irony

in the fact that one of many de facto bribes (one
might more delicately call it a “retainer,” as it is
unlikely that he would continue to receive them
if he suddenly started channeling Thurgood Mar-
shall) Defendant Thomas received on account of
his ascension to the Supreme Court is the Bible
of firebrand Black abolitionist Frederick Doug-
lass, Mike McIntire, The Justice and the Mag-
nate, N.Y. Times, Jun. 19, 2011, at A-1, who may
well have called for his assassination. Douglass
even had an answer to those who might object to
his call for violence:

The only penetrable point of a tyrant is the

fear of death. The outcry that they make, as
to the danger of having their throats cut is
because they deserve to have them cut.

Frederick Douglass, Letter (to James Redpath),

Jun. 29, 1860, reprinted in, Frederick Douglass:
Selected Speeches and Writings 396 (Philip S.
Foner, ed., 1999) (italics in original).

Douglass’s argument is unassailable, echoed

by luminaries across the centuries “There will be

96
 times,” intoned Barack Obama, when the use of
force is “not only necessary but morally justi-
fied.” Barack H. Obama, Speech (acceptance of
the Nobel Peace Prize; Oslo, Norway), Dec. 9,
2009, reprinted at Obama’s Nobel Remarks, N.Y.
Times, Dec. 11, 2009.

Every one of the judges who have complained

knows that they are as guilty as sin. When you
can‘t even quote our Founding Fathers in an
America courtroom without penalty, they have
become, as Senator Chuck Grassley (R-IA) put it,
“a river flooding its banks.”]

The court also reasoned that “[t]here [would] be no

end if plaintiff is permitted to continue filing actions
that argue that a failure to receive his desired out-
come in a lawsuit is grounds for filing yet another.”
Id.

At some point after the pre-filing injunction was

entered, the Tenth Circuit consolidated Smith’s
sixth, seventh, and eighth lawsuits on appeal, and
affirmed the dismissal of each case. Smith v. Krie-
ger, 389 F. App’x at 792-93. The Supreme Court
then denied certiorari. 131 S. Ct. 1511 (2011). In
addition, even before the Colorado district court had
issued rulings with respect to the sixth, seventh,
and eighth lawsuits, Smith filed a ninth lawsuit
there, naming as defendants the judges who pre-
sided over his prior cases and the government

97
attorneys who had opposed those previous actions.
Smith IX, No. 09-2589 (D. Colo.). The district court
dismissed lawsuit number nine due to the judicial
defendants’ absolute immunity and Smith’s failure
to state a claim with respect to the government
attorney defendants. Smith IX, No. 09-2589, 2010
WL 1781937, at *2-3. The Tenth Circuit affirmed
dismissal, 415 F. App’x 57 (10th Cir. 2011), and the
Supreme Court denied certiorari once again, 132 S.
Ct. 113 (2011).

Undaunted, Smith filed a tenth lawsuit—this

time, in the U.S. District Court for the District of
Columbia, presumably as a result of the pre-filing
injunction in Colorado—

[And
And this woman is a Harvard Law grad?!?
SRSLY?? There’s this little thing called “venue”
SRSLY
we litigants need to worry about, 28 U.S.C. §
1391(e)], and last time I checked, no Justice
had ties to Colorado sufficient to justify a law-
suit in my District. Really, Harvard and Yale,
you need to raise standards for affirmative
affirmative
action admissions.]
admissions

seeking to overturn the Supreme Court’s denial of

certiorari in the consolidated appeal in the Tenth
Circuit. A judge in this district dismissed that case;
the D.C. Circuit affirmed the dismissal on appeal;
and the Supreme Court denied certiorari for that
lawsuit as well. Smith X, 2010 WL 253822, at *1

98
(D.D.C. Jan. 21, 2010), aff’d, 383 F. App’x 8 (D.C.
Cir. 2010); see also 131 S. Ct. 1614 (2011).

B. Procedural History Of This Case

[The idea is engraved on the very face of the

Supreme Court building: Equal Justice Under
Law. It means that everyone who comes be-
fore the Court—regardless of wealth or power
or station—receives the same process and the
same protections.. What this commands of
judges is even-handedness and impartiality.
What it promises is nothing less than a fair
shake for every American.

Nomination of Elena Kagan to be Associate Jus-

tice of the United States Supreme Court, S.
Cmte. on the Judiciary, Jun. 28, 2010 (prepared
stmt. of Elena Kagan), at http://judiciary.senate-
.gov/pdf/06-28-10 Kagan Testimony.PDF.]

Smith has now filed his eleventh complaint,

which is also his second in this district.5 Like its

5
Notably, Smith has since filed another lawsuit in this district.
After filing the instant complaint, and prior to the Defendants’
responsive pleadings, Smith filed a twelfth action, which came
before this Court as a related case. Smith v. Tacha, No. 13-
1610 (D.D.C.) (Smith XII). As Smith made clear in that com-
plaint, the allegations in Smith XII were "quite literally iden-
99
predecessors, the instant complaint seeks, at bot-
tom, to remedy the Colorado Supreme Court’s alleg-
edly wrongful decision to deny Smith membership to
the Colorado bar.

[Again, the Judge is being disingenuous. While I

am not entitled to a license to practice law, I AM
entitled to a fair process, whether that is in the
bowels of the Board of Law Examiners or in the
loftiest of federal courts. And when a judge sits
in judgment of her own cause, it is a per se viola-
tion of my Fourteenth Amendment right to a fair
and impartial tribunal. Tumey v. Ohio, 273 U.S.
510, 523 (1927). This is the egregious misuse of
authority complained of.]

In addition, as set forth over the course of hundreds

tical" to those in the instant case, and Smith conceded that the
Smith XII complaint was a "duplicative filing" meant to keep
his claims alive in the event the instant action was dismissed.
Accordingly, this Court dismissed that twelfth lawsuit as
duplicative. See Smith XII, No. 13-1610, 2013 WL 5820495, at
*1 (D.D.C. Oct. 23, 2013).
100
of pages, Smith now challenges the actions of all of
the judges and justices involved in the dismissal of
his earlier cases, recounting in great detail the pro-
cedural history of those prior actions and repeatedly
insisting that all Defendants have egregiously mis-
used their authority. The instant amended com-
plaint also includes facts that pertain to the dis-
misssal of Smith X, the first action Smith filed in
this district. Specifically, the amended complaint
asserts that the Smith X district court judge’s dis-
missal constituted misconduct, and so did the ac-
tions of the D.C. Circuit court judges who affirmed
that dismissal determination. (See Compl. ¶¶ 70-
84.) Smith also alleges that the Supreme Court
justices engaged in misconduct when they recused
themselves from consideration of his petition for
certiorari in regard to Smith X because they had
been named as defendants in the case; their recusal
necessarily meant certiorari was denied. (See id. ¶¶
85-87.)6

[Again, "[h]alf the truth is often a lie in effect,"

6
The complaint in Smith X named Justices Scalia, Kennedy,
Thomas, Roberts, Stevens, Ginsburg, Breyer, Alito, and Soto-
mayor as defendants. (See Smith X, No. 09-1926, Compl., ECF
No. 1.) When Smith X came to the Supreme Court on Smith’s
petition for certiorari, Justices Scalia, Kennedy, Thomas,
Ginsburg, Breyer, Alito and Sotomayor recused themselves,
131 S. Ct. 1614 (2011), which meant that the Supreme Court
lacked a quorum to consider the matter. Id.
101
 Twing v. Schott, 338 P.2d at 841, and the trial
court elided the fact that mine was an official
capacity action. The crucial import of this fact
is explained by Justice Scalia: “[W]hile friend-
ship is a ground for recusal of a Justice where
the personal fortune or the personal freedom of
the friend is at issue, it has traditionally not
been a ground for recusal where official action is
at issue, no matter how important the official
action was to the ambitions or the reputation of
the Government officer.” Cheney v. United
States Court of Appeals for the District of
Columbia, 541 U.S. 913, 916 (2004) (Scalia, J.,
memo).

Setting aside for a moment the absurdity of

the existence of putative ‘laws’ directly affecting
individual citizens that cannot be challenged in
any court, constitutional scholar Antonin Scalia
explains why Justice Scalia’s recusal was an
abuse of his authority: “When a case is accorded
a different disposition from an earlier one, it is
important, if the system of justice is to be
respected, not only that the later case be
different, but that it be seen to be so.” Antonin
Scalia, The Rule of Law as a Law of Rules, 56 U.
Chi. L. Rev. 1175, 1178 (1989).]

The instant complaint includes six distinct

claims for relief. First, Smith seeks to enforce
Article III’s “Good Behavior” clause by removing

102
from the federal bench all of the individual judges
who are named as defendants (“Count I”). (Id. ¶¶
601-605.) Second, Smith seeks an order permitting
him to proceed as a private attorney general to
impanel a grand jury and to initiate criminal
prosecution against the named individual judges
pursuant to the Ninth and Tenth Amendments
(“Count II”). (Id. ¶¶ 611-617.) Smith also brings
several constitutional claims for damages against
all Defendants based on the individual judge
defendants’ alleged failure to provide due process of
law in violation of Smith’s Fifth and Fourteenth
Amendment rights (Count III) (id. ¶¶ 621-629), and
also their alleged denial of access to the courts in
violation of Smith’s First and Fourteenth Amend-
ment Rights (Count IV) (id. ¶¶ 630). Similarly,
Smith alleges that the defendant judges of the
Courts of Appeal in the Tenth Circuit and the D.C.
Circuit are liable for the alleged constitutional dep-
rivations of the defendant judges of their respective
district courts under a theory of supervisory liability
(Count V). (Id. ¶¶ 638-644.) Finally, Smith argues
that the United States is liable for the judges’ vari-
ous deprivations pursuant to “jus cogens interna-
tional law and/or inherent limits of its own sove-
reignty” for failure to prevent the above-described
constitutional violations (Count VI). (Id. ¶¶ 645-
652.)7

7
After Smith filed the instant complaint and before the Defen-
103
dants responded, Smith filed a series of motions requesting
immediate removal of all the judges named in his complaint
(see, e.g., ECF Nos. 10, 12, 18, 19); seeking declarations that
the defendants had violated international law and the Con-
stitution (see, e.g., ECF Nos. 11, 17, 33); and asking for an
order permitting Smith, as a private attorney general, to pre-
sent evidence of Defendants’ purported criminal constitutional
conduct to a grand jury (ECF No. 32). These motions essen-
tially argued for the same relief Smith ultimately seeks in his
complaint; therefore, this Court issued an order denying each
of these motions without prejudice, in order to allow Defen-
dants the opportunity to respond to the allegations in the com-
plaint, which Smith’s motions generally repeated and sought
to enforce. (See Order, ECF No. 34.)

[Again, the distinct odor of “undue guild favorit-

ism” is overwhelming. I asked the Court to take
judicial notice of the actions in question which, to
anyone but a fellow judge, would constitute self-
evident violations of the Defendants’ good beha-
vior tenure. Also, time is of the essence in
criminal prosecutions, owing to statute-of-limita-
tion concerns. This was plain error—and “an act
in furtherance” on the trial court’s part.]
104
 Defendants have filed two motions to dismiss, on
behalf of two different groups of defendants, arguing
that this Court lacks jurisdiction on sovereign
immunity grounds, that res judicata and collateral
estoppel principles bar Smith’s claims, and that the
instant complaint fails to state a claim upon which
relief can be granted because no cause of action is
available for certain claims. (See D.C. Defs.’ Mem.
at 2-3; Non-D.C. Defs.’ Mot. at 14.) In his opposition
to Defendants’ motions, Smith generally maintains
that none of these principles apply. In Plaintiff’s
view, sovereign immunity is unconstitutional and
lacks foundation in law; there are clear reasons why
absolute immunity, res judicata, and collateral
estoppel do not apply; and the Constitution and
international law create cognizable causes of action
that sufficiently state a claim upon which relief can
be granted. He also argues that a judicial opinion
that dismisses a case or renders judgment in favor
of a defendant is itself unconstitutional where, as
here, the plaintiff has made a demand for a jury
trial. (See Pl.’s Resp. in Opp’n to Non-D.C. Defs.’
Mot. to Dismiss (“Opp’n I”), ECF No. 41, at 5-8.)

After the motions to dismiss were fully briefed,

Smith filed a motion that seeks the immediate
removal of the D.C. Defendants (Second Emergency
Mot. for Immediate Removal of D.C. Defs., ECF No.
39), as well as a motion seeking oral argument on
all pending motions. (Mot. for Oral Arg. on Pending
Mots., ECF No. 47.) These motions—which reassert

105
many of the arguments that Smith made in the com-
plaint and in his oppositions to Defendants’ motions,
often verbatim—are still pending.

II. LEGAL STANDARDS

A. Motion To Dismiss Under Rule 12(b)(1)

Defendants contend that this Court has no sub-

ject-matter jurisdiction to entertain Smith’s claims
as a result of sovereign immunity, and thus that the
complaint must be dismissed pursuant to Federal
Rule of Civil Procedure 12(b)(1). See Fed. R. Civ. P.
12(b)(1). It is clear beyond cavil that the plaintiff
bears the burden of establishing jurisdiction by a
preponderance of the evidence. See Lujan v. Defen-
ders of Wildlife, 504 U.S. 555, 561 (1992); Halcomb
v. Office of the Senate Sergeant-at-Arms of the U.S.
Senate, 209 F. Supp. 2d 175, 176 (D.D.C. 2002).
Indeed, when it comes to Rule 12(b)(1), it is
“presumed that a cause lies outside [the federal
courts’] limited jurisdiction,’ unless the plaintiff
establishes by a preponderance of the evidence that
the Court possesses jurisdiction[.]” Muhammed v.
FDIC, 751 F. Supp. 2d 114, 118 (D.D.C. 2010) (first
alteration in original) (quoting Kokkonen v. Guar-
dian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

“When a Defendant files a motion to dismiss

under Rule 12(b)(1) and Rule 12(b)(6), this Circuit

106
has held that the court must first examine the Rule
12(b)(1) challenges . . . because if it must dismiss
the complaint for lack of subject[-]matter jurisdic-
tion, the accompanying defenses and objections
become moot and do not need to be determined[.]”
Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d
59, 64 (D.D.C. 2011) (first alteration in original)
(internal quotation marks and citations omitted);
see also Gen. Motors Corp. v. EPA, 363 F.3d 442,
448 (D.C. Cir. 2004) (“As a court of limited juris-
diction, we begin, and end, with an examination of
our jurisdiction.” (citation omitted)). Moreover, “the
court must scrutinize the plaintiff’s allegations more
closely when considering a motion to dismiss pursu-
ant to Rule 12(b)(1) than it would under . . . Rule
12(b)(6).” Schmidt, 826 F. Supp. 2d at 65 (citing
Macharia v. United States, 334 F.3d 61, 64, 69 (D.C.
Cir. 2003)). Still, the court must accept as true all of
the factual allegations in the complaint and draw all
reasonable inferences in favor of the plaintiff,
Brown v. District of Columbia, 514 F.3d 1279, 1283
(D.C. Cir. 2008), but it need not “accept inferences
unsupported by the facts alleged or legal conclusions
that are cast as factual allegations[,]” Rann v. Chao,
154 F. Supp. 2d 61, 64 (D.D.C. 2001).

B. Motion To Dismiss Under Rule 12(b)(6)

“A Rule 12(b)(6) motion tests the legal sufficiency

of a complaint[.]” Browning v. Clinton, 292 F.3d

107
235, 242 (D.C. Cir. 2002). “To survive a motion to
dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim for relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). Plausibility “is
not akin to a probability requirement, but it asks for
more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678 (internal
quotation marks and citations omitted). The plaus-
ibility standard is satisfied “when the plaintiff
pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citation omitted).
“[W]hile detailed factual allegations are not neces-
sary, the plaintiff must provide more than an una-
dorned, the-defendant-unlawfully-harmed-me accu-
sation[.]” Schmidt, 826 F. Supp. 2d at 65 (internal
quotation marks omitted) (quoting Iqbal, 556 U.S.
at 678).

In deciding whether to dismiss a complaint for

failure to state a claim, the court “must treat the
complaint’s factual allegations—including mixed
questions of law and fact—as true and draw all
reasonable inferences therefrom in the plaintiff’s
favor.” Epps v. U.S. Capitol Police Bd., 719 F. Supp.
2d 7, 13 (D.D.C. 2010) (citing Holy Land Found. for
Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.
Cir. 2003), and Browning, 292 F.3d at 242). How-
ever, the court need not accept as true inferences

108
that the facts set out in the complaint do not sup-
port, nor must the court adopt legal conclusions that
are cast as factual allegations. Browning, 292 F.3d
at 242.

C. Application Of The Pleading Rules To

Pro Se Plaintiffs

In applying the legal framework addressed

above, the Court is mindful of the fact that Smith is
proceeding in this matter pro se. The pleadings of
pro se parties are to be “liberally construed,” and a
pro se complaint, “however inartfully pleaded, must
be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam) (emphasis in
original) (internal citations and quotation marks
omitted);

[Who does she think she is kidding? In practice,

according to retired District Judge Nancy Gert-
ner, judges are quite literally trained on "how
you get rid of [pro se civil rights] cases." Nancy
Gertner (blog reply), Civil jury trials, summary
judgment, employment cases and the Northern
District of Georgia study–preliminary observa-
tions, Hercules and the Umpire (blog of Senior
Judge Kopf, Dist. of Nebraska), Oct. 22, 2013, at
http://herculesandtheumpire.com/2013/10/22/civi
l-jurytrials-summary-judgment-employment-

109
 cases-and-the-northern-district-of-georgia-study-
preliminary-observations/ (copy on file). Empiri-
cal and anecdotal evidence, e.g., Erickson v. Par-
dus, supra, bear this fact out.]

see also Haines v. Kerner, 404 U.S. 519, 520-21

(1972). “This benefit is not, however, a license to
ignore the Federal Rules of Civil Procedure.”
Sturdza v. United Arab Emirates, 658 F. Supp. 2d
135, 137 (D.D.C. 2009) (citation omitted); McNeil v.
United States, 508 U.S. 106, 113 (1993). This means
that even a pro se plaintiff must meet his burden of
proving subject matter jurisdiction to survive a Rule
12(b)(1) motion to dismiss. See, e.g., Green v.
Stuyvesant, 505 F. Supp. 2d 176, 177 (D.D.C. 2007)
(dismissing complaint where pro se plaintiff failed
to prove subject matter jurisdiction). Likewise,
although a pro se complaint “must be construed
liberally, the complaint must still ‘present a claim
on which the Court can grant relief’” to withstand a
Rule 12(b)(6) challenge. Budik v. Dartmouth-
Hitchcock Med. Ctr., 937 F. Supp. 2d 5, 11 (D.D.C.
2013) (citation omitted)); Moore v. Motz, 437 F.
Supp. 2d 88, 90 (D.D.C. 2006) (noting that “[e]ven a
pro se plaintiff’s inferences . . . need not be accepted”
if they “are unsupported by the facts set out in the
complaint” (citation omitted)); see also Crisafi v.
Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981)
(noting that a pro se complaint must state a claim
upon which relief can be granted).

110
III. ANALYSIS

The two pending motions to dismiss make sub-

stantially the same arguments for dismissal: (1)
that absolute and sovereign immunity bar Smith’s
claims, (2) that the complaint fails to state a claim
upon which relief can be granted because no causes
of action exist for the majority of its claims, and (3)
that both res judicata and collateral estoppel
preclude the claims in the complaint. In large part,
Defendants do not explain which arguments apply
to which of the complaint’s six counts, instead they
argue that Case 1:13-cv-00298-KBJ Document 51
Filed 05/26/14 Page 12 of 33 each of these three
defenses warrants dismissal of the complaint in its
entirety. In his oppositions, Smith strenuously
objects to all of Defendants’ arguments, and
reiterates both the points made in the complaint
and those that appeared in the myriad motions he
has filed during the course of this litigation. In their
reply, Defendants aver that Smith’s opposition “fails
to demonstrate any cognizable authority as to why
his complaint should not be dismissed, other than
his own beliefs about the law and how it should be
changed.” (D.C. Defs.’ Reply, ECF No. 44, at 2.)

As explained further below, this Court concludes

that it lacks jurisdiction over the complaint’s claims
against the United States and the individual judge
defendants in their official capacity; that absolute
immunity bars the claims against the individual

111
judge defendants in their individual capacity; and
that the remaining counts fail to state a claim upon
which relief may be granted because there are no
available causes of action for those claims. Conse-
quently, the entire complaint must be dismissed. In
addition, in light of Smith’s history of filing multiple
suits arising out of this same dispute, prospective
filing restrictions such as those imposed in the
District of Colorado are warranted here, and Smith
will not be permitted to file new actions in this
Court without the representation of a licensed attor-
ney admitted to practice in the District of Columbia,
unless he first obtains permission from the court to
proceed pro se. While Smith is certainly entitled to
appeal this Court’s judgment dismissing his
complaint (and thus he has a continued avenue of
relief in regard to the instant case), the Court finds
that he has completely and exhaustively aired his
allegations in the two complaints that he has
already filed in this jurisdiction; therefore, prior to
filing any additional complaints arising out of the
same underlying circumstances, he will be required
to seek leave of Court.

A. The Court Lacks Jurisdiction Over

Smith’s Claim For Damages Against
The United States And The Individual
Judge Defendants
Defendants In Their Official
Capacity

112
 Defendants maintain that sovereign immunity
prevents the Court’s exercise of jurisdiction in this
case. (D.C. Defs.’ Mem. at 20; Non-D.C. Defs.’ Mot.
at 17 n.6.) Smith contends that the doctrine of
sovereign immunity itself is an improperly-created
legal fiction and should therefore be disregarded.
(Compl. ¶ 425; Opp’n I at 32.) In the alternative, he
argues that an international treaty and the Bill of
Rights waive sovereign immunity, and further, that
this Court is “obliged to declare the Bill of Rights
void for want of enforcement” if it determines that
sovereign immunity is in fact a bar to this suit,
since, from Smith’s vantage point, a citizen has no
rights if he cannot enforce those rights against a
federal judge. (Pl.’s Resp. in Opp’n to D.C. Defs.’
Mot. To Dismiss (“Opp’n II”), ECF No. 43, at 29.)
Because mere disagreement with the law is not a
basis for setting it aside or declaring it invalid,
Smith’s principal position has no merit. Moreover,
the law clearly establishes that sovereign immunity
bars Smith’s claims for damages against the United
States and the individual judges in their official
capacity.

The doctrine of sovereign immunity provides

that the United States is immune from suit unless
Congress has expressly waived the defense. See,
e.g., United States v. Mitchell, 463 U.S. 206, 212
(1983) (“It is axiomatic that the United States may
not be sued without its consent and that the exis-
tence of consent is a prerequisite for jurisdiction.”);

113
Cohens v. Virginia, 19 U.S. 264, 411-12 (1821) (“The
universally received opinion is[ ] that no suit can be
commenced or prosecuted against the United
States[.]”);

[When a judge wants an outcome badly enough,

s/he will “lie to get it." Karl N. Llewellyn, The
Common Law Tradition: Deciding Appeals 135
(1960). Judge Richard Posner adds that judges
"are constantly digging for quotations from and
citations to previous cases to create a sense of
inevitability about positions that they are in fact
adopting on grounds other than deference to pre-
cedent." Richard A. Posner, How Judges Think
144 (Harvard U. Pr. 2008).

It is ironic that the trial court is relying on

dictum in a case in which Chief Justice Marshall
explains that dictum cannot be relied on: State-
ments that go beyond the case, "may be respec-
ted, but ought not to control the judgment in a
subsequent suit when the very point is presented
for decision." Cohens v. Virginia, 19 U.S. at 39.]

Webman v. Fed. Bureau of Prisons, 441 F.3d 1022,

1025 (D.C. Cir. 2006) (citations omitted). If sove-
reign immunity applies, the court lacks jurisdiction
to entertain the offending suit. See, e.g., FDIC v.
Meyer, 510 U.S. 471, 475 (1994); United States v.
Sherwood, 312 U.S. 584, 586 (1941); Galvan v. Fed.
Prison Indus., Inc., 199 F.3d 461, 463 (D.C. Cir.

114
1999). A lawsuit against a government official in his
official capacity is tantamount to a suit against “an
entity of which an officer is an agent[,]” Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985) (internal
quotation marks omitted) (quoting Monell v. N.Y.
Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978));
therefore, the sovereign immunity doctrine applies
equally to the government itself and to any federal
official sued in his or her official capacity. Signif-
icantly, although Congress may waive sovereign
immunity—and, accordingly, the government’s lia-
bility to suit—any such waiver must be express.
United States v. Mitchell, 445 U.S. 535, 538 (1980).
And a plaintiff bears the burden of establishing that
sovereign immunity has been waived or abrogated.
Tri-State Hosp. Supply Corp. v. United States, 341
F.3d 571, 575 (D.C. Cir. 2003) (citations omitted).

[One is left to marvel at how this argle-bargle

can be squared with Jacobs v. United States, 290
U.S. 13, 16 (1933) (Fifth Amdt. takings clause is
an implied waiver of immunity), or constitutional
scholar Antonin Scalia’s pertinent observation
that “[a]t the time of Marbury v. Madison there
was no doctrine of domestic sovereign immunity,
as there never had been in English law.” Antonin
Scalia, Historical Anomalies in Administrative
Law, Y.B. Supreme Court Hist. Soc’y. 103 (1985)
(emphasis in original). When I asked where sov-
ereign immunity came from, the court took the
Fifth.]

115
 In this case, Plaintiff has brought suit against
both the United States and 19 individual Article III
federal judges. (See Compl. ¶¶ 34-44.) The United
States clearly falls within the protective reach of
sovereign immunity. See Mitchell, 463 U.S. at 212.
Moreover, to the extent that Smith has sued the
judges in their official capacity, these defendants
are part of the United States government for the
purposes of sovereign immunity, as well. See
Graham, 473 U.S. at 165-66; Jackson, 844 F. Supp.
2d at 76; see, e.g., Mason v. Judges of U.S. Ct. of
Appeals for D.C. Cir. In Regular Active Serv. Acting
In Their Official Capacity, 952 F.2d 423, 425 (D.C.
Cir. 1991) (“To the extent the present suit is against
the active judges of this court, it is a suit ‘against
the United States.’”).8 Thus, in order to avoid the

8
The complaint itself does not designate certain claims as
being brought against the defendant judges in their official
versus personal capacities. (See Compl. ¶¶ 621-644.) Hence, it
is unclear whether Smith meant to bring this suit against the
individuals in their official or personal capacities, or both. The
D.C. Circuit has not taken a position on whether a plaintiff has
a duty to specify the capacity in which a § 1983 or Bivens claim
is being brought such that the court should presume official
capacity unless otherwise stated, and other circuits are split on
the matter. Compare Baker v. Chisom, 501 F.3d 920, 923 (8th
Cir. 2007) (section 1983 complaints that do not specify capacity
are construed as having been brought against defendants in
their official capacity), cert. denied, 128 S. Ct. 2932 (2008) with
Price v. Alaska, 928 F.2d 824, 828 (9th Cir. 1990) (section 1983
complaints that do not specify capacity are construed as having
been brought against defendants in their individual capacity).
116
sovereign immunity bar and the concomitant find-
ing that this Court lacks jurisdiction, Smith must
establish that Congress has waived sovereign
immunity expressly with respect to the particular
claim.

Smith has failed to carry this burden.

This Court need not take a position on this issue nor decide
what Smith intended in the instant complaint because the
capacity question is immaterial to the result of this case. See
Neff v. Bureau of Prisons, No. 07-1672, 2009 WL 559514, at *1
n.2 (D.D.C. Mar. 5, 2009); cf. McDonald v. Salazar, 831 F.
Supp. 2d 313, 318 n.6 (D.D.C. 2011) (where the plaintiff’s ame-
nded complaint did not make clear whether the claims were
against the defendants in their official or personal capacities,
construing the claims as brought against defendants in their
individual capacity because sovereign immunity would bar the
official capacity claims).
117
 ["It is difficult to get a man to understand some-
thing, when his salary depends on his not under-
standing it." Upton Sinclair, I, Candidate for
Governor: And How I Got Licked 109 (U. Cal.
Press 1994) (1935).]

With respect to Counts III through VI, which

appear to seek money damages from the United
States and the individual judges, Smith’s primary
contention is that sovereign immunity should not
apply because that doctrine is facially unconsti-
tutional or has no foundation in law. This proposi-
tion is entirely unsupported, as noted above. Smith’s
next argument—that the International Covenant on
Civil and Political Rights (“ICCPR”) waives
sovereign immunity (see Opp’n I at 17)—fares no
better. The ICCPR is a treaty that recognizes the
importance of civil rights obligations of the
signatory nations. See Ralk v. Lincoln Cnty., 81 F.
Supp. 2d 1372, 1380 (N.D. Ga. 2000). Although the
treaty “contains general statements affirming the
rights of individuals to live free from discrimination
and oppression[,]” it “contains no explicit language
waiving [ ] sovereign immunity[.]” Godfrey v. Ross,
No. 2:11-2308, 2012 WL 507162, at *5 (E.D. Cal.
Feb. 15, 2012) (record citation omitted). Hence,
courts have already found that the ICCPR does not
waive sovereign immunity. See Tobar v. United
States, 639 F.3d 1191, 1196 (9th Cir. 2011) (citation
omitted); see, e.g., Godfrey, 2012 WL 507162, at *5;
Nhia Kao Vang v. Decker, No. 2:12-1226, 2012 WL

118
5020491, at *6 (E.D. Cal. Oct. 17, 2012) (citing
Dickens v. Lewis, 750 F.2d 1251, 1253-54 (5th Cir.
1984)); Smith V, 2008 WL 2751346, at *7 (D. Colo.
July 11, 2008) (citation omitted); Jama v. U.S. INS,
22 F. Supp. 2d 353, 365 (D.N.J. 1998). And not only
is Smith unable to cite to a single decision to the
contrary, but he has also has raised precisely this
argument in prior litigation, and it was rejected. See
Smith V, 2008 WL 2751346, at *7 (D. Colo. July 11,
2008) (rejecting Smith’s argument that the ICCPR
creates provides any express waiver of sovereign
immunity), aff’d, 350 F. App’x 190 (10th Cir. 2009),
cert. denied, 559 U.S. 1086 (2010).

Plaintiff’s final two sovereign immunity argu-

ments—that jus cogens international law and the
Bill of Rights waive sovereign immunity—are also
inconsistent with established law. Jus cogens is the
accepted principle that internationally accepted
norms carry the force of law, see Black’s Law
Dictionary (9th ed. 2009), which appears to have no
application under the instant circumstances.
Regardless, the D.C. Circuit has made clear that a
government does not waive sovereign immunity by
committing violations of jus cogens, see Belhas v.
Ya’alon, 515 F.3d 1279, 1292 (D.C. Cir. 2008)
(citation omitted); therefore, even if such violations
were established here, that would do little to
advance Plaintiff’s argument that sovereign immu-
nity has been waived. In addition, the Bill of Rights
clearly does not contain any congressional mandate

119
expressly waiving sovereign immunity, and Plaintiff
is unable to point to any court that has held as
much.

[That last statement is so daft that it deserves

emphasis:

“In addition, the Bill of Rights clearly

does not contain any congressional
mandate expressly
expressly waiving sovereign
immunity.”

As Tom Clancy once quipped, the difference

between reality and fiction is that fiction has to
make sense.

First and foremost, the concept that “the King

can do no wrong” is nonsensical in a nation with-
out a king.

As a matter of law and logic, a “right” cannot

exist without a remedy for its breach, Ashby v.
White [1703] 92 Eng.Rep. 126, 136 (H.C.), and to
take away all remedy for the enforcement of a
right is to take away the right itself." Poindexter
v. Greenhow, 114 U.S. 270, 303 (1884). In short,
the Bill of Rights intended to impose an absolute
limit on the power of government can be emascu-
lated by the government by the simple expedient
of closing the courthouse doors to citizens injured

120
 by lawless government action.

Justice Scalia’s question is worth asking here:

“Would the States conceivably have entered into
the Union if the Constitution itself contained the
Court’s holding? Imagine a provision [declaring
that Congress could void the Bill of Rights in its
entirety by slamming the doors of the courthouse
shut]. The delegates to the Grand Convention
would have rushed to the exits from Indepen-
dence Hall.” Arizona v. United States, No. 11-
182, 567 U.S. ___ (2012) (bench stmt of Scalia, J,
at 6).]

Therefore, Plaintiff has failed to meet his burden

of proving a waiver of sovereign immunity, see Tri-
State Hosp. Supply, 341 F.3d at 575, and as a
result, the Court lacks jurisdiction over Count VI
against the United States, and over Counts III, IV,
and V to the extent that they seek money damages
for constitutional violations that the United States
or the individual judge defendants in their official
capacities allegedly committed. See Meyer, 510 U.S.
at 475; Sherwood, 312 U.S. at 586; Galvan, 199 F.3d
at 463.

B. Absolute Judicial Immunity Bars The

Claims Against The Individual Judge
Defendants In Their
Their Personal Capacity

121
 Smith’s constitutional claims against the indivi-
dual judge defendants (Counts III, IV, and V) also
fail to the extent that this suit has been brought
against them in their personal capacity. Smith
seeks money damages for the judges’ alleged
violations of his constitutional rights, pursuant to
42 U.S.C. § 1983 (see Compl. ¶¶ 621-652), which
this Court will construe as claims against the fede-
ral judicial officers made pursuant to Bivens v. Six
Unknown Named Federal Narcotics Agents, 403
U.S. 388 (1971).9

9
In their motions to dismiss, Defendants maintain that Counts
III, IV, and V should be dismissed on the ground that § 1983
does not provide a cause of action against federal officials,
because that statute only applies to officials acting under the
color of state law. (D.C. Defs.’ Mem. at 19 (“[W]hile the
Plaintiff has averred claims under Section 1983, these fail to
state a claim as well against the D.C. Court Defendants
because that provision only applies to State actors, not federal
officials.” (citation omitted)); Non-D.C. Defs.’ Mot. at 23
(same).) In his oppositions, Plaintiff asks the Court either to
construe his § 1983 claims as if they were brought pursuant to
Bivens v. Six Unknown Named Federal Narcotics Agents, 403
U.S. 388 (1971), or grant him leave to amend the complaint to
effect this small change. (See Opp’n II at 35-36.) Given
Plaintiff’s pro se status and the fact that the court’s analysis of
a Bivens action mirrors that of a § 1983 claim, see Moore v.
Valder, 65 F.3d 189, 192 (D.C. Cir. 1995); Mittleman v. U.S.
Treasury, 773 F. Supp. 442, 451 n.8 (D.D.C. 1991), the Court
will construe Plaintiff’s claims as if they were brought under
Bivens. See Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(directing district courts to use a more liberal standard with
pro se plaintiffs).
122
 [Admittedly, sloppy editing on my part. Bivens
is, of course, the federal analogue to Section 1983
and besides, the usual remedy would be a grant
of leave to amend.]

Nevertheless, the claims against the individual

judge defendants in their personal capacities are
barred under the doctrine of absolute judicial
immunity and thus must be dismissed pursuant to
Rule 12(b)(6). See Forrester v. White, 484 U.S. 219,
225 (1988) (claims against judges in their individual
capacities must be dismissed because judges are
absolutely immune from lawsuits predicated on acts
taken in their judicial capacity); Caldwell v. Kagan,
455 F. App’x 1, 1 (D.C. Cir. 2011) (a claim asserted
against a federal judge stemming from official judi-
cial acts is subject to dismissal under Rule 12(b)(6)
(citations omitted)); see, e.g., Tsitrin v. Lettow, 888
F. Supp. 2d 88, 91 (D.D.C. 2012); Nwachukwu v.
Rooney, 362 F. Supp. 2d 183, 191-92 (D.D.C.
2005).10

10
Although the doctrines of absolute judicial immunity and
sovereign immunity both lead to the same result, these two
grounds for dismissal have different bases under the federal
rules. Sovereign immunity strips the court of jurisdiction and
thus renders dismissal appropriate under Rule 12(b)(1). By
contrast, absolute judicial immunity is a non-jurisdictional bar
to a “claim asserted against a federal judge stemming from
official judicial acts” and is thus “subject to dismissal under
123
 It is well established that judicial immunity
shields federal judges from a suit for money dam-
ages. Mireles v. Waco, 502 U.S. 9, 9 (1991) (citations
omitted); Rodriguez v. Editor in Chief, Legal Times,
No 07-5234, 2007 WL 5239004, at *2 (D.C. Cir. Dec.
19, 2007) (citations omitted); Tsitrin, 888 F. Supp.
2d at 91 (citing Caldwell, 455 F. App’x at 1). This
absolute immunity protects judges from allegations
predicated on actions that they performed in their
judicial capacity. See Mireles, 502 U.S. at 12;
Forrester, 484 U.S. at 225; Stump v. Sparkman, 435
U.S. 349, 355-57 (1978); Clark v. Taylor, 627 F.2d
284, 287 (D.C. Cir. 1980) (per curiam). “Accordingly,
courts in this district routinely dismiss matters filed
against judges in their judicial capacity.” Tsitrin,
888 F. Supp. 2d at 91 (collecting cases); see also
Moore, 437 F. Supp. 2d at 91; Rodriguez, 2007 WL
5239003, at *2 (dismissing claims for money dam-
ages against state and federal judges challenging

Rule 12(b)(6) for failure to state a claim upon which relief can
be granted.” Tsitrin v. Lettow, 888 F. Supp. 2d 88, 91 (D.D.C.
2012) (citing Caldwell v. Kagan, 455 F. App’x 1, 1 (D.C. Cir.
2011)).
124
judicial actions). The scope of this immunity is
broad: “[a] judge will not be deprived of immunity
because the action he took was in error, was done
maliciously, or was in excess of his authority;
rather, he will be subject to liability only when he
has acted in the ‘clear absence of all jurisdiction.’”
Stump, 435 U.S. at 356-57 (citation omitted); see
also Forrester, 484 U.S. at 227-29 (absolute
immunity protects a judge for liability stemming
from adjudicative acts performed in his official
capacity); Mireles, 502 U.S. at 22 (“Judicial
immunity is not overcome by allegations of bad faith
or malice[.]”). In other words, “the necessary inquiry
in determining whether a defendant judge is
immune from suit is whether at the time he took the
challenged action he had jurisdiction over the
subject matter before him.” Stump, 435 U.S. at 356.

[Yes, it is “well-established, but is it LAW? As

Chief Justice Roberts and Justice Scalia made it
clear in their Obergefell dissents—as if you need
more than the opinion of James Madison on this
point, p. 25, supra—illegitimate Austinian “legal
realism” aside, it was universally understood in
the Framers’ generation that judges “delivered”
the law, as opposed to writing it.

The question being asked—and conveniently,

elided—is where this “well established” doctrine
came from. Can we find it in the Constitution?
No. How about the emanations from its penum-

125
brae? Again, no. The Fifth Amendment provides
in pertinent part that no person shall “be
deprived of life, liberty, or property, without due
process of law.” U.S. Const. amend. V. Ergo, the
government has a duty to provide it, and by nec-
essary implication, there must be a meaningful
remedy for a willful breach of that duty by public
officials. See e.g., Carey v. Piphus, 435 U.S. 247
(1978). To hold otherwise is to declare that the
Bill of Rights is null and void for want of enforce-
ment, as Defendant Scalia concedes:

[I]f you think that the Bill of Rights is what

sets us apart, you are crazy. Every banana
republic has a bill of rights. Every president
for life has a bill of rights. The bill of rights
of [the Soviet Union] was much better than
ours. I mean that literally.

Considering the Role of Judges Under the Con-

stitution of the United States: Hearing Before
the S. Comm. on the Judiciary, 112th Cong. 6
(Oct. 5, 2011) (statement of Antonin Scalia).

Ubi jus, ibi remedium. Where there is “law,”

there is a remedy for its breach. Scalia speaks
an undeniable truism: the only rights you have
are the ones you can enforce. As Stalin’s law
courts would not enforce the grandiloquent
promises of the Soviet Constitution, they were no
more than what Scalia called "just words on

126
 paper." Id. at 7. As to "take away all remedy for
the enforcement of a right is to take away the
right itself," Poindexter v. Greenhow, 114 U.S.
270, 303 (1884), and discretionary cert abolishes
the writ of error, there is literally no remedy left
for willful acts of judicial caprice. As the citizens
who enacted the Fifth Amendment certainly did
not intend it to be hortatory, it is impossible to
find any emanation in its penumbrae which can
justify a doctrine of judicial immunity which is
as broad as the one invoked by the trial court.]

A recent case from this district is particularly

instructive. In Caldwell v. Kagan, 865 F. Supp. 2d
35 (D.D.C. 2012), the plaintiff sued judges of the
U.S. District Court in D.C., the U.S. Court of
Appeals for the D.C. Circuit, the U.S. Tax Court,
and a number of other federal officials for what he
perceived as unjust and unconstitutional miscon-
duct committed during the course of earlier cases.
865 F. Supp. 2d at 39-40. Specifically, the plaintiff
contended that the judges’ dismissals of his earlier
complaints, and the Supreme Court’s denial of his
petition for certiorari, infringed his right to due
process. Id. at 40. Because the cases had been
properly before the judges when they took the
challenged action, the court held that the district
court judge who dismissed the plaintiff’s previous
complaints was entitled to absolute immunity, as
was the panel of D.C. Circuit judges who affirmed
that dismissal on appeal regardless of whether the

127
dismissal or denial actually violated the Constitu-
tion. See id. at 40, 42-43.

Caldwell and cases like it underscore the purpose

of absolute judicial immunity: it safeguards the
adjudicatory process because, without it, losing liti-
gants would be “apt to complain of the judgment
against [them]” and “ascri[be] improper motives to
the judge.” Bradley v. Fisher, 80 U.S. 335, 348-49
(1871). In the absence of such immunity protection,
“[t]he judge would risk being haled into court by the
losing party in every decision he rendered, and the
second judge addressing the suit against the first
would risk the same if he found in favor of the
initial judge[,]” Caldwell, 865 F. Supp. 2d at 43
(quoting Bradley, 80 U.S. at 348-49), a result that
would imperil the proper functioning of our federal
court system. Thus, the well-established “remedy for
alleged mishandling of a prior case is not a Bivens
action against the . . . judge, who enjoys absolute
immunity, but an appeal or appeals in the prior
case[.]” Howard v. U.S. Dist. Court ex rel. District of
Columbia, 468 F. App’x 12, 12 (D.C. Cir. 2012)
(internal citations omitted).

[There are valid public policy reasons why you

might not want to expose judges to tort liability,
and there are equally compelling reasons why a
judge should be liable for acts of willful miscon-
duct, as was the case here. But making public
policy determinations is, as Justice Scalia and

128
Chief Justice Roberts argued powerfully, above
ANY Court’s pay grade.

Bradley v. Fisher was issued against the back-

drop of a system of jurisprudence which is radi-
cally different than the caricature of one that we
endure today. “Against the consequences of their
erroneous or irregular action, from whatever
motives proceeding, the law has provided for
private parties numerous remedies, and to those
remedies they must, in such cases, resort.” Brad-
ley, 80 U.S. at 354. And back then, the justly-
aggrieved litigant had an absolute right to certi-
orari review on a writ of error in this Court, and
entitled to a written opinion which became the
law of the land. As that presumptively effective
remedy has been abolished in practice, if not in
theory, the underlying rationale for Bradley is no
longer valid. As Cardozo observed in his famous
Burnet dissent, stare decisis depends entirely “on
the force of the reasoning by which it is sup-
ported," Burnet v. Coronado Oil & Gas Co., 285
U.S. 393, 413 (1932) (Brandeis, J., dissenting),
and changing facts can so “rob[] the old rule of
significant application or justification,” Planned
Parenthood of S.E. Pa. v. Casey, 505 U.S. 833,
855 (1992) (citing Burnet), that prior decisions of
this Court are not to be followed.

If Congress were to address this question, it

might choose to indemnify injured litigants, limit

129
 liability, or implement a malpractice insurance
system for federal judges. But as the doctrine of
absolute judicial immunity came about as an act
of judicial will, as opposed to judgment, it is not
constitutional, as judges have no legal authority
to usurp the Congressional prerogative to write
our laws.]

Like Caldwell, the instant complaint presents

the classic case of a dissatisfied litigant. Without
question, all of the allegations in the instant
complaint relate to the individual judges’ actions in
their roles as judges: the dismissal of Smith’s prior
cases, the content of the written opinions, and the
justices’ recusal decisions. (See, e.g., Compl. ¶ 406L
(challenging the judicial practice of issuing
unpublished decisions); id. ¶ 406N (challenging the
judges’ treatment of pro se cases).) Defendants point
out that Plaintiff has brought suit against “sitting
judges simply because of their judicial acts and
decisions when they presided over his previous
unsuccessful lawsuits[,]” (D.C. Defs.’ Mem. at 10;
see also Non-D.C. Defs.’ Mot. at 16-17), and Smith
concedes as much: in his opposition, he highlights
that the relevant facts of this case are the “cursory
opinions that [the defendants] issued[,]” and the
“[un]professional and [in]competent manner” in
which his earlier lawsuits were decided. (Opp’n II at
1, 4). Thus, as prior similar cases establish, the sole
remedy for the “alleged mishandling” of Smith’s
prior cases is “an appeal”—which Smith “has

130
[already] pursued and lost”—not a lawsuit against
the judges who made that determination. Howard,
468 F. App’x at 12.

None of Smith’s arguments against absolute

judicial immunity persuade this Court otherwise.

[Of course, they wouldn’t! "It is difficult to get a

man to understand something, when his salary
depends on his not understanding it." Upton
Sinclair, I, Candidate for Governor: And How I
Got Licked 109 (U. Cal. Press 1994) (1935).]

Neither the ICCPR nor the doctrine of jus cogens

addresses, much less abrogates, absolute judicial
immunity.

[In point of fact, it does. Specifically, Article 2 of

the ICCPR provides:

1. Each State Party to the present Covenant

undertakes to respect and to ensure to all
individuals within its territory and subject
to its jurisdiction the rights recognized in
the present Covenant, without distinction
of any kind, such as race, colour, sex, lan-
guage, religion, political or other opinion,
national or social origin, property, birth or
other status.

2. Where not already provided for by existing

131
 legislative or other measures, each State
Party to the present Covenant undertakes
to take the necessary steps, in accordance
with its constitutional processes and with
the provisions of the present Covenant, to
adopt such laws or other measures as may
be necessary to give effect to the rights
recognized in the present Covenant.

3. Each State Party to the present Covenant

undertakes:

(a) To ensure that any person whose rights

or freedoms as herein recognized are
violated shall have an effective remedy,
notwithstanding that the violation has
been committed by persons acting in an
official capacity;

(b) To ensure that any person claiming

such a remedy shall have his right
thereto determined by competent
judicial, administrative or legislative
authorities, or by any other competent
authority provided for by the legal
system of the State, and to develop the
possibilities of judicial remedy;

(c) To ensure that the competent auth-

orities shall enforce such remedies
when granted.

132
 Here is the problem the Court elided—judges
always avoid the questions that they know they
cannot adequately answer: The “object and pur-
pose” of the ICCPR was to secure natural rights
(the list is essentially coterminous to our own) by
ensuring that “effective” remedies would exist for
willful breaches of those rights by agents of sig-
natory States. ICCPR, art. 2(3)(a). Either the
United States ratified that treaty, or it did not,
and if it did purport to ratify it subject to a condi-
tion incompatible with that object and purpose,
the purported condition is void and severable as
a matter of international law. Ergo, the treaty is
enforceable—domestically and internationally—
without the severed condition. A court charged
with interpretation of the ICCPR has no choice—
at least in theory, because judges are disdainful
of the law they “swore an oath” to uphold—but to
dismiss the “non-self-executing treaty” reserva-
tion.

As it is a multilateral treaty which has been

ratified by virtually every country in the world,
it necessarily has to leaves the nuts-and-bolts of
implementation to individual signatories, unless
and until Congress changes the rules, the default
rule in America is joint-and-several liability.]

See Smith V, 2008 WL 2751346, at *7; Ralk, 81 F.

Supp. 2d at 1380. And Smith’s contention that

133
absolute immunity somehow does not apply because
Defendants’ treatment of his prior cases allegedly
ran afoul of the Constitution fails to account for the
fact that absolute immunity unquestionably is
applicable, and warranted,

[“Warranted?” Says who? “So spake the Fiend,

and with necessity, The Tyrant’s plea, excused
his devilish deeds.” John Milton, Paradise Lost,
Vol. 4, ln. 393-94 (1667).

The power-besotted bandits on our bench are

apt to find absolute judicial immunity warranted
because they crave absolute power, and wish to
avoid accountability. As Montesquieu observed,
“[c]onstant experience shows us that every man
invested with power is apt to abuse it, and to
carry his authority as far as it will go." Charles
de Secondat, Baron de Montesquieu, The Spirit
of Laws XI ch. 4 (T. Nugent trans., Bell & Sons,
1914) (1748). The civil jury, who would end up
being subject to the arbitrary rule of unelected
and unaccountable judges, is likely to see it quite
differently.]

whenever a challenged judicial decision was made

in the exercise of judicial discretion—without regard
to whether the offending judicial act was, itself,
illegal or wrongful. See Stump, 435 U.S. at 356-57
(noting that even wrongful or malicious conduct is
excused if done in the exercise of judicial discretion

134
so long as the court had jurisdiction); see, e.g.,
Caldwell, 865 F. Supp. 2d at 42-43.

[Why stop at “jurisdiction”? The courts wouldn’t

even grant me a remedy when state judges acted
without jurisdiction. Smith v. Mullarkey, supra.]

In sum, insofar as Counts III, IV, and V seek

money damages from the individual judge defen-
dants in their personal capacities pursuant to
Bivens—or any other legal theory, for that matter—
these counts must be dismissed under Rule 12(b)(6)
because absolute immunity protects the individual
judge defendants from liability for performing the
judicial acts that Smith now challenges.

C. There Is No Cause Of Action Available

For The Non-
Non -Monetary Relief Plaintiff
Seeks

Two counts of the instant complaint request that

this Court order specific forms of injunctive relief:
(1) that the individual judge defendants be removed
from the federal bench pursuant to the Good
Behavior clause (Count I), and (2) that a grand jury
be convened to allow Smith to prosecute the judges
as a private attorney general (Count II). (See
Compl. ¶¶ 601-617.) The Supreme Court has held
that “judicial immunity is not a bar to prospective
[injunctive] relief against a judicial officer acting in

135
her judicial capacity[,]” Pulliam v. Allen, 466 U.S.
522, 541-42 (1984); Wagshal v. Foster, 28 F.3d 1249,
1252 (D.C. Cir. 1994) (citation omitted), so absolute
judicial immunity does not dispose of these claims.
However, Defendants argue that Plaintiff cannot
proceed with these claims because no private cause
of action for removal of sitting federal judges or for
permitting private citizens to serve as attorneys
general is available. (See D.C. Defs.’ Mem. at 18-19;
Non-D.C. Defs.’ Mot. at 22.) This Court agrees,

[Of course, she does! "It is difficult to get a man

to understand something, when his salary
depends on his not understanding it." Upton
Sinclair, I, Candidate for Governor: And How I
Got Licked 109 (U. Cal. Press 1994) (1935). The
prospect of accountability is more frightening to
a federal judge than a silver stake to Dracula.]

and thus both Counts I and II must be dismissed

under Rule 12(b)(6). See John Doe v. Metro. Police
Dep’t of the District of Columbia, 445 F.3d 460, 466
(D.C. Cir. 2006) (affirming dismissal of plaintiff’s
claims under Rule 12(b)(6) where no cause of action
existed); Sabre Int’l Sec. v. Torres Advanced Enter.
Solutions, No. 11-806, 2014 WL 341071, at *9
(D.D.C. Jan. 30, 2014) (dismissing plaintiff’s claims
under Rule 12(b)(6) where no cause of action
existed).

With respect to Smith’s contention that the ‘Good

136
Behavior’ clause of Article III gives private
individuals the right to bring suit to remove federal
judges from the bench (Compl. ¶¶ 601-605),
Defendants cite a long line of cases that hold
unequivocally that Congress—not private indivi-
duals like Smith—has exclusive authority to enforce
the Good Behavior clause by initiating impeach-
ment proceedings. (D.C. Defs.’ Mem. At 18; Non-
D.C. Defs.’ Mot. at 22.)

[Thomas Huxley once referred to “the slaying

of a beautiful hypothesis by an ugly fact” as the
great tragedy of science. Thomas Huxley, Presi-
dential Address at the British Association, "Bio-
genesis and Abiogenesis" (1870). But rather than
slaying the hypothesis, federal judges are in the
habit of slaying beautiful facts.

As pointed out in the Petition, congressional

precedent was established a century ago in the
investigation of Judge Emory Speer of the Dis-
trict of Georgia, charged with "despotism,
tyranny, oppression, and maladministration" in
the course of judicial decision-making. Charles
Geyh, When Courts and Congress Collide: The
Struggle for Control of America’s Courts 160 (U.
Mich. Pr. 2008). The congressional committee
concluded that "a series of legal oppressions [con-
stituting] an abuse of judicial discretion" did not
constitute an impeachable offense, id. at 160-61,
despite their being self-evident serial violations

137
 of his good behavior tenure. Congress concluded
that they had no constitutional power to enforce
the Good Behavior Clause.

As I have shown that violations of good behavior

and impeachable offenses are not coterminous in
the Petition, I will not rehash that point.]

Indeed, no less an authority than the Supreme

Court has held that “[t]he ‘good Behaviour’ Clause
guarantees that Art. III judges shall enjoy life
tenure, subject only to removal by impeachment.” N.
Pipeline Construction. Co. v. Marathon Pipe Line
Co., 458 U.S. 50, 59 (1982) (plurality) (emphasis
added) (citing United States ex rel. Toth v. Quarles,
350 U.S. 11, 16 (1955)); see Mistretta v. United
States, 488 U.S. 361, 410 (1989) (“[A] federal judge .
. . continue[s], absent impeachment, to enjoy tenure
‘during good Behaviour[.]” (citation omitted)); see
also Hastings v. Judicial Conference of U.S., 770
F.2d 1093, 1107 (D.C. Cir. 1985) (Edwards, J.,
concurring) (“[I]n order for Article III’s guarantee of
independence to be fulfilled, the Constitution must
be interpreted to designate impeachment as the
exclusive mechanism for disciplining or removing
federal judges.” (emphasis in original)). Moreover,
Plaintiff has made the ‘Good Behavior’ removal
request in prior lawsuits, and the courts that
previously considered this issue also concluded that
there is no private right of action to seek removal of
a sitting federal judge. See, e.g., Smith v. Krieger,

138
389 F. App’x at 798 (“Smith argues that
impeachment is not the sole means of removing
Article III judges who no longer exhibit the ‘good
Behaviour’ required for continued tenure under
Article III of the Constitution. Instead, he argues,
the Ninth and Tenth Amendments work to reserve
to the people the right to remove such Article III
judges. We disagree.”); Smith VII, 2009 WL
4035902, at *2 (D. Colo. Nov. 19, 2009) (rejecting
Smith’s Good Behavior clause cause of action
because only Congress can remove a federal judge
from office). Constitutional scholars, too, have
concurred that a textual analysis “clearly reveals
that impeachment must be the sole means of
removal of a federal judge from office.” Martin H.
Redish, Judicial Discipline, Judicial Independence,
and the Constitution: A Textual and Structural
Analysis, 72 S. Cal. L. Rev. 673, 673 (1999).

[While I recognize that Jackson is an Affirma-

tive Action Queen, manifestly unqualified for her
position, I had presumed that any Harvard Law
grad would know the difference between prece-
dent and dictum. Monica Goodling, not so much.

As Petitioner pointed out to the trial court,

other scholars—including Harvard’s legendary
Raoul Berger, who was generally considered the
foremost expert on this question—respectfully
disagree. Raoul Berger, Impeachment of Judges
and "Good Behavior" Tenure, 79 Yale. L.J. 1475

139
(1970); Raoul Berger, Impeachment: The Con-
stitutional Problems 132, 2d ed. (Harvard Pr.
1999). See also, Saikrishna Prakash and Steven
D. Smith, How to Remove a Federal Judge, 116
Yale L.J. 72, 90 (2006). And as was also pointed
out to the trial court, Professor Redish later
offered this caveat:

As a textualist, I would be forced to accept

[the Prakash/Smith] proposal were I con-
vinced that it represented the only reasonable
construction of the applicable constitutional
text, regardless of how dangerous I believed it
to be to the foundations of American constitu-
tionalism.

Martin H. Redish, Response: Good Behavior,

Judicial Independence, and the Foundations of
American Constitutionalism, 116 Yale L.J. 139,
142 (2006).

A competent judge would have read Berger and

the colloquy between Prakash and Smith and
Redish, fairly considering both sides of the ques-
tion. But this is just another classic example of a
judge “digging for quotations from and citations
to previous cases to create a sense of inevitability
about positions that they are in fact adopting on
grounds other than deference to precedent."
Richard A. Posner, How Judges Think 144 (Har-
vard U. Pr. 2008). Dictum becomes binding

140
 precedent, and dubious minority views become a
scholarly consensus.]

In light of the binding precedent that clearly estab-

lishes that private citizens have no right to seek to
enforce the Article III ‘Good Behavior’ clause
through a lawsuit for injunctive relief that requests
removal of a judge,

[Again I have to ask, not having the benefit of

a “Harvard education,” “Do they not teach law at
Harvard Law School?” Out in the hinterlands,
every 1-L is taught the difference between prece-
dent and obiter dictum. As Chief Justice Mar-
shall explains, statements that go beyond the
case, "may be respected, but ought not to control
the judgment in a subsequent suit when the very
point is presented for decision.” Cohens v.
Virginia, 19 U.S. 264, 399 (1821). But as we all
know, "Courts and judges always lie," Judges as
Liars, supra, and as Llewellyn notes, when a
judge wants an outcome badly enough, s/he will
“lie to get it." Karl N. Llewellyn, The Common
Law Tradition: Deciding Appeals 135 (1960). Dic-
tum becomes binding precedent, and dubious
minority views become a scholarly consensus.

If Judge Jackson were even the slightest bit

honest, she would have admitted that I had a
point. But when a judge has “a dog in the hunt,”
s/he will never fail to pet it.]

141
this Court concludes that Count I must be dismissed
for failure to state a claim upon which relief can be
granted.11

11
Notably, and for what it’s worth, this does not mean that
private citizens are entirely without options with respect to the
conduct of purportedly misbehaving judges: when judicial mis-
conduct is “prejudicial to the effective and expeditious admin-
istration of the business of the courts,” or a judge “is unable to
discharge all the duties of office by reason of mental or physi-
cal disability,” 28 U.S.C. § 351(a), “Congress has established a
statutory mechanism for complaints of judicial misconduct that
can culminate in Congressional impeachment proceedings.”
Smith v. Krieger, 389 F. App’x 789, 798 (10th Cir. 2010) (citing
28 U.S.C. §§ 351-364).

[Notably, and for what it’s worth, even federal

judges who have been on these panels admit that
the farcical system of judicial self-"discipline"
under 28 U.S.C. § 351, et seq., "is a 'kiss your
sister' operation that hasn't worked and won't as
long as judges are covering one another's butts.
The present system is ineffectual and I think
that could be demonstrated by the very sorry
record." Ronald D. Rotunda, The Courts Need
This Watchdog, Wash. Post, Dec. 21, 2006 (re-
marks of Senior Judge John L. Kane, of the
District of Colorado); see also, e.g., Anthony
D’Amato, Self-Regulation of Judicial Misconduct
Could be Mis-Regulation, 89 Mich. L. Rev. 609,
609-10 (1990); Rotunda, Judicial Transparency,
142
 Likewise, Smith’s contention that private
individuals have the power to prosecute others for
crimes under the Ninth and Tenth Amendments,
and that this Court should convene a grand jury to
permit him to exercise that authority here (Compl.
¶¶ 611-617) is unavailing. “Our entire criminal jus-
tice system is premised on the notion that a crim-
inal prosecution pits the government against the

Judicial Ethics, and a Judicial Solution: An

Inspector General for the Courts, 41 Loy. U. Chi.
L.J. 301 (2010). Seven ‘slaps on the wrist’ in
~6,000 complaints is a lousy batting average in
any league. Lise Olsen, Secrecy May Help Pro-
tect Misbehaving Judges, Houston Chronicle,
Dec. 13, 2009, at A-1; see Heber Taylor, Judicial
Discipline Needs a Full Probe, Galveston Daily
News, May 15, 2009 (re: ex-Judge Kent). ]
143
governed, not one private citizen against another.”
Robertson v. U.S. ex rel. Watson, 560 U.S. 272, 278
(2010) (Roberts, dissenting).

[Judge Jackson’s idiocy is truly breathtaking.

First and foremost, Judge John Roberts was

dissenting in a case where private prosecution
was allowed. Second, as was pointed out to the
trial court in nauseating detail, his premise was
nonsensical in 1789, as the world’s first bona fide
police force would form decades into the future,
Charles P. Nemeth, Private Security and the
Law 6 (3d ed. 2004), and essentially by default,
the responsibility of enforcing public order fell
upon the populace. See e.g., People ex rel. Case
v. Collins, 19 Wend. 56, 65 (N.Y. Sup. Ct. 1837)
(mandamus); People ex rel. Blacksmith v. Tracy,
1 Denio. 617, 618 (N.Y. Sup. Ct. 1845) (general
rule unless statute provides otherwise). The fed-
eral government relied on qui tam actions for the
enforcement of the law, Steven L. Winter, The
Metaphor of Standing and the Problem of Self-
Governance, 40 Stan. L. Rev. 1371, 1406-08 (Jul.
1988), and for centuries, “it was not only the
privilege but the duty of the private citizen to
preserve the King's Peace and bring offenders to
justice.” Canada Dept. of Justice, The Federal
Prosecution Service Deskbook, Part IV, ch. 26
(copy on file).

144
 The power to either force officials to prosecute
a crime or prosecute it yourself is ubiquitous in
democratic countries. Even in countries that are
not exactly staunch redoubts of human rights,
such as Zimbabwe. Even in Harare, the victim of
a crime has a legal right to prosecute if their
Attorney-General declines:

In all cases where the Attorney-General de-

clines to prosecute for an alleged offence, any
private party, who can show some substantial
and peculiar interest in the issue of the trial
arising out of some injury which he individ-
ually has suffered by the commission of the
offence, may prosecute, in any court compe-
tent to try the offence, the person alleged to
have committed it.

Criminal Procedure and Evidence Act, 2004,

[Chapter 9:07], Part 13 (Zimbabwe).

Even in Tanzania, the idea that the State can

be trusted with the exclusive, uncontrolled fran-
chise in prosecution of crimes is inconceivable, as
Professor Nreseko of the University of Botswana
observes, relating comments in an unpublished
case of that nation's Court of Appeals:

We are surprised because we did not think

anyone in our country could be vested with
such absolute and total powers. It would be

145
 terrible to think that any individual or group
of individuals could be empowered by law to
act even mala fide. As it turned out to our
great relief the exercise of the powers by the
DPP under the Criminal Procedure Act is
limited by the Act. Although the powers of
the DPP appear to be wide, the exercise is
limited by three considerations. That wher-
ever he exercises the wide powers he must do
so only in the public interest, in the interest
of justice and in the need to prevent abuse of
the legal process.

D. N. Nsereko, Prosecutorial Discretion Before

National Trials and Int'l Tribunals, Int'l Soc'y
for the Reform of Criminal Law (undated), at
http://www.isrcl.org/Papers/Nsereko.pdf, quoting
Director of Public Prosecutions v. Mehboob
Akbar Haji & Another, Cr, App. No. 28 of 1992
(unreported).

No other country in the civilised world—and

not even Zimbabwe!—thinks it is a good idea to
grant the State an exclusive franchise to decide
which crimes it will prosecute, and which it will
ignore, without any external control whatever.
The right exists throughout the Commonwealth,
even if it is invoked only rarely. E.g., Barrymore
Facing Pool Death Case, BBC News, Jan. 16,
2006 (Great Britain); Plans For Private Prosecu-
tion Against Winnie, BBC News, Nov. 26, 1997

146
(South Africa: prosecution of Winnie Mandela
proposed). Malaysia allows private criminal
prosecution by the aggrieved party, Criminal
Procedure Code, Act 593, Sec. 380 (Malaysia)
and even citizen's arrests. Id., Sec. 27(1). And
although this appears to be a relatively new
development, India limits the citizen's standing
to initiate a criminal prosecution of its public
servants to those directly impacted by their
alleged acts. Private complaint can't be bsed to
prosecute public servant: Court, DNAIndia.com
(Press Trust India), Oct. 16, 2010, at
http://www.dnaindia.com/india/1453552/report-
private-complaint-can-t-be-used-to-prosecute-
public-servant-court. The procedure is unsettled
in Kenya, Kenya: DPP Urges Court to Drop Pri-
vate Prosecution Case, The Star (Nairobi), Aug.
5, 2013, reprinted at
http://allafrica.com/stories/201308052173.html
(the right itself appears to be intact, but the
procedure is uncertain), but for the most part,
Commonwealth nations tend to follow the exam-
ple of Mother England.

Pretty much every other reasonably-civilized

country on the face of this earth has devised a
formal mechanism for controlling the reluctant
prosecutor. A brief survey of established Western
democracies reveals that, in most instances,
prosecutors have little or no discretion as to
whether to prosecute a crime. Italy includes an

147
express duty to prosecute in its constitution.
Costituzione della Repubblica Italiana [Consti-
tution] art. 112 (Italy 1947). As anyone who has
been following the news already knows, Martin
Sieff, Spain Wants Torture Charges Against
Bush Six Dropped, UPI, Apr. 16, 2009, Spain
trusts her citizens with wide latitude to initiate
criminal proceedings. Constitución Espanola de
1978 [1978 Constitution] art. 125 (Spain). Prose-
cutorial discretion in most states is governed by
statute and often, quite limited. See e.g., Hans-
Heinrich Jescheck, The Discretionary Powers of
the Prosecuting Attorney in West Germany, 18
Amer. J. Comp. L. 508 (1970). In the Neth-
erlands, whereas public prosecutors have sole
prosecuting authority and statutory discretion as
to whether to forego prosecution in the "public
interest," an aggrieved victim can take prosecu-
tors to court to force prosecution. Openbaar
Ministerie, The Principle of Expediency in the
Netherlands (Power Point presentation), Oct. 27,
2006, at http://eulec.org/Downloads/intstra-
frecht/expediency-china.pps. The Phillippines
has a separate court—the Sandiganbayan—quite
literally dedicated to prosecuting public corrup-
tion, where private prosecutors may intervene in
specified circumstances. See, Magno v. People,
G.R. No. 171542 (S.C. Apr. 6, 2011) (discussing
limits on intervention). And unlike the United
States, our former protectorate still has the writ
of certiorari. Id.

148
 In our own hemisphere, most countries have
robust private prosecution systems, see gene-
rally, Kathryn Sikkink, The Justice Cascade:
How Human Rights Prosecutions Are Changing
World Politics (Norton, 2001), and of course, our
nice neighbours to the North are light-years
ahead of us on the human rights front.

As Canada’s Department of Justice observes,

the right to private criminal prosecution is one of
those common law safeguards—"a valuable con-
stitutional safeguard against inertia or partiality
on the part of authority," Gouriet v. Union of
Post Ofc. Workers, [1978] A.C. 435, 477 (H.L.)
(Canada)—flourishing a pedigree as old as the
common law itself:

A private citizen's right to initiate and

conduct a private prosecution originates in
the early common law. From the early Middle
Ages to the 17th century, private
prosecutions were the main way to enforce
the criminal law. Indeed, private citizens
were responsible for preserving the peace and
maintaining the law:

[U]nder the English common law, crimes

were regarded originally as being com-
mitted not against the state but against a
particular person or family. It followed
that the victim or some relative would

149
 initiate and conduct the prosecution
against the offender …

Another feature of the English common law

was the view that it was not only the privi-
lege but the duty of the private citizen to
preserve the King's Peace and bring offenders
to justice.

Canada Dept. of Justice, The Federal Prosecu-

tion Service Deskbook, Part IV, ch. 26 (copy on
file).

England wasn’t a traditional monarchy,

where the king ruled by divine right and his sub-
jects were mere thralls. Quite to the contrary,
the real weight of sovereignty lay in Parliament;
the King was not so much a person but an office,
held in trust for the public benefit. The Framers
were subjects of the Crown, accustomed to
enjoying the ancient rights of Englishmen. The
motivating force behind the Revolution was that,
in the Colonies, essential rights were being
unilaterally abridged. Understanding that
"[o]ne hundred and seventy-three despots would
surely be as oppressive as one," Federalist No. 48
at 310 (Madison), the States enacted elaborate
declarations of rights and liberties, elevating
common law rights to the status of paramount
law. They didn’t attempt to list them all, but
the notion that the right to prosecute a crime

150
when the State refused would not be among
them, mostly because in 1789, crime was a
private matter.

Even as late as 1875, there was never any

doubt that a victim of a crime had the clear legal
right to prosecute it. See, Winter, Metaphor of
Standing at 1403 (however, a minority of states
required the relator to allege a private right). In
that year, the Supreme Court found "a decided
preponderance of American authority in favor of
the doctrine that private persons may move for a
mandamus to enforce a public duty, not due to
the government as such, without the interven-
tion of the government law officer." Union
Pacific R. Co. v. Hall, 91 U.S. 343, 355 (1875).
Importantly, they drew a "reasonable implica-
tion" that by virtue of its silence, Congress "did
not contemplate the intervention of the Attorney
General [to compel compliance with the law] in
all cases." Id. at 356.

It is astounding that Judge Jackson—who is

black (and presumptively, descendant of slaves)
—would not understand the “why.” Defendant
Scalia provides us with an ultimate acid test of
constitutionality tevery judge in America should
learn by heart: "Would the States conceivably
have entered into the Union if the Constitution
itself contained the Court’s holding?" Arizona v.
United States, No. 11-182, Jun. 25, 2012 (Scalia,

151
J., bench statement at 6). In that light, consider
Justice Bradley's observation that

….it is a right, an inestimable right, that of

invoking the penalties of the law upon those
who criminally or feloniously attack our
persons or our property. Civil society has
deprived us of the natural right of avenging
ourselves, but it has preserved to us all the
more jealously the right of bringing the
offender to justice…

To deprive a whole class of the community of

this right, to refuse their evidence and their
sworn complaints, is to brand them with a
badge of slavery; is to expose them to wanton
insults and fiendish assaults; is to leave their
lives, their families, and their property
unprotected by law. It gives unrestricted
license and impunity to vindictive outlaws
and felons to rush upon these helpless people
and kill and slay them at will, as was done in
this case.

Blyew v. United States, 80 U.S. 581, 598-99

(1871) (Bradley, J., dissenting) (emphasis added).

Under Kentucky law at the time, persons of

color were prohibited by law from testifying in a
criminal case involving a white defendant. The
inevitable result was that, if a band of white men

152
 in white bedsheets took a Black woman from her
home at night and hung her from a tree, and if
one of the hoods' hoodies fell off, members of her
family who witnessed the lynching could not
testify as to the killer's identity. And this, in
turn, begs Scalia's question: If you were a person
of color (this incapacity also extended to Indians.
Blyew, 80 U.S. at 592), and had a choice, would
you have willingly assented to this arrangement,
which left your life, family, and property unpro-
tected by law?

Justice Frankfurter counsels that we should

read the law "with the saving grace of common
sense." Bell v. United States, 349 U.S. 81, 83
(1955). If the almighty State enjoys a monopoly
on the prosecution of crimes, your life, family,
and property can be as "unprotected by law" as
Lucy Armstrong's was in Blyew. If your son's
name was Trayvon, and the killer just happened
to have a father who was a retired judge with a
lot of local influence, the case is never going to go
to trial because all Americans are equal but,
well, some are more equal than others. Would
you agree to this deal? And more importantly,
would the Framers' generation have agreed to
this deal? To even state the case is to refute it.

By statute, Congress conferred the power to prose-

cute crimes on the United States Attorney General
and his delegates, see 28 U.S.C. §§ 515-519, and

153
under uncontroverted Supreme Court precedent,
that power is exclusive. See, e.g., United States v.
Nixon, 418 U.S. 683, 693 (1974) (“[T]he Executive
Branch has exclusive authority . . . to decide
whether to prosecute a case[.]” (citation omitted));

precedent. As Justice
[Again, dictum is not precedent
Scalia acknowledged, the question of whether
the Constitution's vesting of the executive power
in the President precludes private prosecution of
federal crimes has never been legally resolved.
Young v. United States ex rel. Vuitton et Fils
S.A., 481 U.S. 787, 816 and n. 2 (1987) (Scalia,
J., concurring in part). The Nixon case speaks
only to Congress’s authority,
authority as those who were
reasonably close to being an adult at the time
will probably recall.]

id. at 694 (“Under the authority of Art. II, [§] 2,

Congress has vested in the Attorney General the
power to conduct the criminal litigation of the
United States Government.” (citation omitted));
Confiscation Cases, 74 U.S. 454, 457 (1868) (“Public
prosecutions . . . are within the exclusive direction of
the district attorney[.]”); Ballance v. Peeples, No.
10-864, 2010 WL 3069201, at *1 (D.D.C. Aug. 5,
2010) (noting that a private individual “cannot
compel a criminal investigation”). Plaintiff provides
no citations to cases that support his position,

[It would have been a rather neat trick for me to

154
 write a 45-page brief without citing even a single
authority in support of my position. “Courts and
judges always lie.” Judges as Liars, supra.]

and the courts that previously considered his argu-

ment in this regard concluded that it lacks
foundation in the law. See, e.g., Smith v. Krieger,
389 F. App’x at 799 (there is “no right to initiate a
criminal prosecution in the name of the United
States under the Ninth or Tenth Amendments, or
otherwise”), cert. denied sub nom. Smith v. Ander-
son, 131 S. Ct. 1511 (2011). Accordingly, Smith’s
claim that this Court can convene a grand jury to
afford him the right to initiate criminal proceedings
against Defendants fails and must be dismissed
under Rule 12(b)(6). See John Doe, 445 F.3d at 466;
Sabre Int’l Sec., 2014 WL 341071, at *9.

[Apparently by design—even federal trial jud-

ges will admit that they don’t read briefs, Rich-
ard G. Kopf, Top ten legal writing hints when
the audience is a cranky federal trial judge,
Hercules and the Umpire (blog), Jun. 20, 2013,
http://herculesandtheumpire.com/2013/06/20/top-
ten-legal-writing-hints-when-the-audience-is-a-
cranky-federal-trial-judge/ (Kopf is Senior Judge
for the District of Nebraska, who recently told
you to “STFU”)—the trial court elided the issue
raised in gruesome detail in a 45-page brief, and
summarized here:

155
 The right to private criminal prosecution
(PCP) was retained by the people.
y Bill of Rights preserves ancient com-
mon law safeguards against abuse of
authority.
y PCP was/is available at common law
for 500 years (Gouriet).
y No reasonable citizen would have
ceded this “inestimable” (Blyew) right.
y Ergo, even Congress cannot extinguish
it.

Again, if this is one of the “safeguards which

[the people] have been long accustomed to have
interposed between them and the magistrate
who exercised the sovereign power” Madison
sought to secure in the Bill of Rights, Congress
has no lawful authority to extinguish them. Yes,
Congress passed a statute, but did they have the
right to? I presume that even at Harvard Law,
they still teach that some statutes are unconsti-
tutional.]

IV. REQUEST FOR SANCTIONS AND PRE-

PRE-
FILING INJUNCTION

Having considered, and disposed of, each of the

counts in the instant complaint on the grounds of
sovereign immunity, absolute judicial immunity, or
the fact that a cause of action is not available to

156
Plaintiff, this Court need not address the other
substantive arguments that Defendants have made
in support of dismissal, including whether res
judicata or issue preclusion bars consideration of
Smith’s claims.12

["But I have to be free to rape your daughter

with impunity to protect her from being raped."

When a trial judge cannot address an issue

without making herself look like an abject idiot,
she buries it in a footnote. Whereas judges have
a vested financial interest in finding that judges
enjoy absolute immunity in tort, a jury is almost
certain to conclude—as has the entire civilized
world—that the concept is risible.

This is why we HAVE a Seventh Amendment:

"Constant experience shows us that every man
invested with power is apt to abuse it,” Montes-
quieu, supra—and that includes federal judges.
John Adams adds:

As the Constitution requires that the popular

branch of the legislature should have an
absolute check, so as to put a peremptory

12
Given that no claims remain, the Court also need not con-
sider Plaintiff’s novel argument that summary judgment and
dismissal pursuant to Rule 12(b)(6) are unconstitutional when
a plaintiff makes a jury demand. (See Opp’n II at 5-8.)
157
 negative upon every act of the government, it
requires that the common people, should have
as complete a control, as decisive a negative,
in every judgment of a court of judicature.

2 The Works of John Adams, Second President of

the United States 253 (Charles F. Adams ed.,
Little, Brown & Co. 1850).

The Seventh Amendment was intended by the

Framers as an effectual check on abuse of power
by federal judges.]

However, the Court will address Defendants’

request that this Court impose monetary sanctions
and/or a pre-filing injunction that would bar Smith
from filing any further actions in this district with-
out first seeking leave of court. (D.C. Defs.’ Mem. at
22; Non-D.C. Defs.’ Mot. at 25.) Defendants argue
that, given Smith’s practice of filing actions in
federal court that re-raise claims that were
previously rejected, the Court should impose a pre-
filing injunction on Smith similar to the one
imposed on him in the District of Colorado (D.C.
Defs.’ Mem. at 22; Non-D.C. Defs.’ Mot. at 25) as
well as monetary sanctions (Non-D.C. Defs.’ Mot. at
24). Smith’s opposition to Defendants’ motions to
dismiss does not address Defendants’ request for
future filing restrictions, but with respect to
monetary sanctions, Plaintiff contends that the
request for monetary sanctions should be denied for

158
two reasons: first, because the request is proce-
durally improper under Rule 11, which mandates
that motions for sanctions be made “separately from
any other motion”; and, second, because his lengthy
complaint and multitude of motions purportedly
“evidence [his] due diligence,” in stark contrast to
the frivolousness that Rule 11 punishes. (Opp’n I at
42-43.)

Rule 11(b) of the Federal Rules of Civil

Procedure provides, in pertinent part:

(b) Representations to the Court. By presenting

to the court a pleading, written motion, or
other paper—whether by signing, filing,
submitting, or later advocating it—an attor-
ney or unrepresented party certifies that to
the best of the person's knowledge, infor-
mation, and belief, formed after an inquiry
reasonable under the circumstances:

(1) it is not being presented for any improper

purpose, such as to harass, cause unnec-
essary delay, or needlessly increase the
cost of litigation;

(2) the claims, defenses, and other legal con-

tentions are warranted by existing law or
by a nonfrivolous argument for extending,
modifying, or reversing existing law or for
establishing new law …

159
Federal judges have no lawmaking authority
whatsoever. They can’t even write their own
procedural rules. See 28 U.S.C. § 2072. So,
under what conceivable legal authority can they
impose any monetary sanction on a litigant sua
sponte, and under what specific conditions? After
all, that pesky Fifth Amendment provides that
no person shall “be deprived of life, liberty, or
property, without due process of law.” U.S.
Const. amend. V. Since monetary sanctions nec-
essarily involve property, the Due Process clause
requires that the matter be heard in front of a
fair and independent tribunal, and I demanded a
Seventh Amendment jury trial with respect to
that issue.

In addition, due process protections incorpora-

ted into Rule 11 were ignored by the Court. If a
party seeks sanctions, “[a] motion for sanctions
must be made separately from any other motion
and must describe the specific conduct that
allegedly violates Rule 11(b).” Fed. R. Civ. P,
11(c)(2). When the court acts sua sponte, it must
“order an attorney, law firm, or party to show
cause why conduct specifically described in the
order has not violated Rule 11(b).” R. 11(c)(3). It
is a matter of record that this was not done.

As for filing sanctions, unless and until I can

force judges to accept the restrictions imposed

160
 upon them by our Constitution, there is no point
in point in bothering to contest them in the kan-
garoo courts of the District, as I don‘t live there
and am unlikely reside there in the foreseeable
future. De minimis non curat lex.]

A. Defendants’ Request for Monetary

Sanctions

In the debate over Defendants’ request for mone-

tary sanctions, this Court agrees with Plaintiff. Rule
11 authorizes the court to sanction “an attorney, law
firm, or party” under specified circumstances, see
Fed. R. Civ. P. 11(c)(1), but also makes clear that
“[a] sanction imposed under this rule must be
limited to what suffices to deter repetition of the
conduct[.]” Fed. R. Civ. P. 11(c)(4). Rule 11 provides
certain bases for the imposition of sanctions,
including that a party’s legal contentions are
frivolous or unwarranted under existing law, or that
the claims have been presented for an improper
purpose such as harassment. See Fed. R. Civ. P.
11(c)(1); Crawford-El v. Britton, 523 U.S. 574, 600
(1998); Anthony v. Baird, 12 F. Supp. 2d 23, 25
(D.D.C. 1998).

Monetary sanctions are one type of authorized

penalty that is purely discretionary and may be
imposed whenever a court determines that Rule 11
has been violated, provided that the sanctioned

161
party has been given a notice and an opportunity to
respond. Fed. R. Civ. P. 11(c)(3); see Cobell v.
Norton, 211 F.R.D. 7, 10 (D.D.C. 2002) (citation
omitted). Indeed, Rule 11 monetary sanctions can
even be imposed on pro se litigants. See Fed. R. Civ.
P. 11(b); Kurtz v. United States, 779 F. Supp. 2d 50,
51 n.2 (D.D.C. 2011) (citation omitted); see, e.g.,
Smith v. Educ. People, Inc., 233 F.R.D. 137, 142 n.9
(S.D.N.Y. 2005) (collecting cases from the Second
and Eleventh Circuits); Patterson v. Aiken, 841 F.2d
386, 387-88 (11th Cir. 1988) (pro se litigant was
liable to pay attorneys’ fees as a Rule 11 sanction
after he filed an action based on claims that had
already been dismissed as frivolous in prior
litigation). For example, in Patterson, the Eleventh
Circuit reviewed the district court’s impositions of
sanctions on a pro se plaintiff who had filed a fifth
lawsuit bringing antitrust and constitutional claims
against individuals who were involved in litigating
and adjudicating the four prior actions that the
plaintiff had filed. 841 F. 2d at 386-87. Because a
similar allegation and legal theory in the complaint
had already been dismissed, the Court of Appeals
concluded that the plaintiff should have known that
re-filing the same claim was improper; thus, it
affirmed the district court’s imposition of attorneys’
fees as a monetary sanction under Rule 11. Id. at
387.

[Again, this passage raises a 700 Club Begathon

of questions. If Rule 11 applied, and the parties

162
 did not submit separate motions, the Court had
no statutory authority to entertain them. If any
party should have been sanctioned, it was the
Government. Moreover, just as every pregnancy
was an invitation to file Roe v. Wade, every new
abuse of authority is an invitation to challenge
unconstitutional laws excusing them.]

However, the fact that monetary sanctions can

appropriately be assessed against a pro se party
under the familiar circumstance of needlessly
duplicative litigation does not necessarily mean that
they should be. In light of the availability of other
means of deterrence, this Court declines to exercise
its discretion to impose monetary sanctions on
Smith in this matter at this time. For the reasons
explained below, however, this Court does believe
that this is an appropriate case for the imposition of
a pre-filing injunction.

B. Defendants’ Request For A Pre-

Pre -Filing
Injunction

There is no doubt that “a court may employ

injunctive remedies”—such as filing restrictions—
“to protect the integrity of courts and the orderly
and expeditious administration of justice.” Kaem-
pfer v. Brown, 872 F.2d 496, 496 (D.C. Cir. 1989)
(quoting Urban v. United Nations, 768 F.2d 1497,
1500 (D.C. Cir. 1985)).

163
 [Provided that they are imposed pursuant to the
standards imposed by Rule 11, I concur. When a
judge claims an inherent authority to do so, how-
ever, it reeks of illicit ad hoc judicial lawmaking,
especially in light of the fact that Rule 11 has
provided both a remedy and ascertainable
standards for its implementation.]

Any such restrictions must be narrowly tailored to

protect that interest “without unduly impair[ing] a
litigant’s right of access to the courts.” In re Powell,
851 F.2d 427, 431 (D.C. Cir. 1988) (citing Urban,
768 F.2d at 1500). Moreover, such restrictions
“should remain very much the exception to the
general rule of free access to the courts,” and “the
use of such measures against” pro se plaintiffs
“should be approached with particular caution.”
Powell, 851 F.2d at 431 (internal quotation marks
and citation omitted). To address these concerns,
prior to issuing pre-filing injunctions, courts in the
district ordinarily follow three steps: first, notice
and the opportunity to be heard are provided, see
id.; see, e.g., Caldwell v. Powell, No. 13-1438, 2013
WL 6094237, at *11 (D.D.C. Nov. 20, 2013); second,
the court develops a record for review that considers
“both the number and content of the [plaintiff’s]
filings[,]” Caldwell, 2013 WL 6094237, at *11
(quoting Powell, 851 F.2d at 434); and third, the
court “make[s] substantive findings as to the friv-
olous or harassing nature of the litigant’s actions.”

164
Caldwell, 2013 WL 6094237, at *11 (citations
omitted).

Here, Defendants’ motions to dismiss provided

Smith with ample notice that he may be enjoined
from making future filings in this district, and
Smith also has had the opportunity to be heard on
the matter of whether a prospective pre-filing
injunction is appropriate because he was free to
address the injunction issue in the context of his
briefs in opposition to Defendants’ motions. Cf. Slate
v. Am. Broad. Cos., No. 09-1761, 2013 WL 6713178,
at *9 n.7 (D.D.C. Dec. 20, 2013) (an opportunity to
address an issue in briefing counts as notice and an
opportunity to be heard); Bishop v. Wynne, 478 F.
Supp. 2d 1, 4 (D.D.C. 2006) (same); Robert v. Dep’t
of Justice, 439 F. App’x 32, 35 (2d Cir. 2011) (same).

[Again, this is beside the point. Rule 11 offers

statutory protections against abusive litigation,
and federal judges have no authority to write the
law. This is a per se violation of Article III, and
grounds for removal from the bench.]

Moreover, the number and content of Smith’s

prior filings provide sufficient basis for considera-
tion of a pre-filing injunction. Smith has filed ten
prior lawsuits, each with strikingly similar allega-
tions,

[Alan Dershowitz responds:

165
 [My point is] about the disillusionment that
comes with learning that some justices actu-
ally cheat. You probably already suspected
that some lower court judges play favorites
with lawyers and litigants who supported
their election or appointment. But Supreme
Court justices? That came as a surprise even
to a lifelong cynic like me. …

Trust no one in power, including—espe-

cially—judges. Don’t take judicial opinions at
face value. Go back and read the transcript.
Cite-check the cases, You will be amazed at
how often you will find judges “finessing” the
facts and the law.

Alan Dershowitz, Letters To a Young Lawyer 11

(Basic Books 2001).

The Court’s disingenuous remark is “finessed”

where it matters. The only case where the claim
was substantially identical was in a pendent act-
ion filed in state court, which was true by design.
When the state justices sat in judgment of their
own cause, this gave rise to a separate tort claim
(see Carey v. Piphus, supra). When lower court
judges kept defying binding precedent and bury-
ing their handiwork in unpublished opinions, a
lawsuit inspired by Judge Arnold’s Anastasoff
opinion was brought. When this Court refused to

166
 review obviously erroneous decisions, an official
capacity action was brought to secure the benefit
of the rule of law. And when trial courts
inexplicably failed to answer a question brought
before them and the Justices recused en masse, a
new action in tort was brought. Every lawsuit
was precipitated by a unique instance of judicial
misconduct.]

and the saga of this series demonstrates a clear

pattern: Smith repeatedly files suit against the
judges that decided his prior action when they do
not order the relief he seeks, and in the context of
each subsequent lawsuit, he propounds substan-
tially the same legal arguments that the prior
courts have considered and rejected. Although the
specific claims and requests for relief may be stated
somewhat differently in each new case, Smith’s
legal theories and the gravamen of the complaints
remain the same,

[At an appropriate level of abstraction, this

statement is correct. The Framers’ Constitution
provides an array of remedies for willful acts of
judicial misconduct, and the “SCOTUStitution”
does not. I maintain that we are governed by the
former, and for self-evident, self-serving reasons,
the judges disagree.]

and for the reasons explained above, his substantive

arguments do not have any merit. Thus, unless

167
Smith is enjoined from filing any new action in the
District of Columbia, it is highly likely that there
will continue to be one lawsuit after another here in
this district, naming each successive judge who con-
siders the legally baseless contentions, world with-
out end.

[If judges insist on refusing to accept the limi-

tations placed on their power by Article III, the
citizens have two remedies: to sue them, or shoot
them. Personally, I prefer suing judges to killing
their grandchildren in retribution for their law-
lessness.]

Finally, it is clear that Smith’s cycle of filing

lawsuits against judges who rule against him raises
the spectre of harassment, and, in any event, consti-
tutes an unwarranted burden on “the orderly and
expeditious administration of justice.” Urban, 768
F.2d at 1500 (citations omitted); see, e.g., Caldwell,
2013 WL 6094237, at *12-13 (“Plaintiff’s repetitive
filings of meritless claims against federal officials,
federal judges and private parties, compounded by
the cycle of adding on as new defendants each
federal judge who has made a decision against the
plaintiff, rises to the level of harassing and
vexatiousness to warrant a pre-filing injunction.”);
Davis v. United States, 569 F. Supp. 2d 91, 93, 98-
99 (D.D.C. 2008) (imposing a pre-filing injunction on
the plaintiff after filing a fourth identical suit
because “repetitive presentation of essentially

168
identical claims wastes limited judicial resources”).
The sheer number of suits and the circumstances in
which they have been filed are, alone, enough to
warrant characterizing Smith’s lawsuits as
harassment, but the tone of Plaintiff’s successive
suits dispels all doubt about the vexing nature of his
pleadings. See Smith VII, 2009 WL 4035902, at *3
(collecting earlier cases reprimanding Smith for
“abusive language” and “disrespectful litigation
practices” (citations omitted)).13

Smith’s practice of filing duplicative motions also

reflects a litigation strategy that is properly char-
acterized as harassment. In the context of the
instant action, Smith has not only filed two com-
plaints but also a multitude of motions that seek the
same ultimate relief as the pending complaint
requests. (See, e.g., ECF Nos. 10, 12, 18-19 (motions
requesting immediate removal of all the judges

13
Among the many disturbing statements that are made in the
complaint is the assertion that several judicial defendants
have “signed their own death warrants” by issuing unconsti-
tutional opinions that amount to “acts of judicial tyranny”
because “citizens have not only a right but the duty to kill
tyrants[.]” (Compl. ¶ 464; see also Emergency Mot. to Remove
D.C. Defs., ECF No. 12, at 31 (“There may come a day when
the need to ‘Glock and load’ to defend the Constitution from
the depredations of a band of domestic tyrants, but Plaintiff
prays that today is not that day[, as the Court has] the power
to do the right thing[.]”).
169
named in his complaint); ECF Nos. 11, 17, 33
(requesting declarations that Defendants violated
international law and the Constitution); ECF No. 32
(seeking an order permitting Smith, as a private
attorney general, to present evidence of Defendants’
purported criminal constitutional conduct to a grand
jury).)

[Comments like these make you wonder as to

whether affirmative action’s gift to the District of
Columbia’s District Court was out sick the day
they taught law at Harvard Law School. As any
trained lawyer would know, virtually every fede-
ral crime has a statute of limitations attached, so
time was clearly of the essence. With respect to
good behavior tenure, most lawyers will recall
from Property class that life estates subject to a
condition are extinguished upon failure of that
condition and as the facts were judicially notice-
able (a Rule 201 motion was made), the Defen-
dant judges had no lawful authority to render
decisions in other cases. Finally, a declaration
that the United States is in breach of the ICCPR
would, at least in theory (granted, the only legis-
lation they are able to pass involves the naming
of post offices), induce Congress to take approp-
riate action. The motions were all proper, and a
competent judge would have known it.]

Yet again, this motion practice echoes Smith’s fil-

ings in prior cases. See, e.g., Smith VII, 2009 WL

170
4035902, at *4 (noting that “Smith has also shown a
penchant for making duplicative arguments” given
the multiple motions for relief that “all raise the
same arguments that are found in his complaint
and responses to the motions to dismiss”). And yet
again, there appears to be no end in sight unless an
injunction is issued.

Consequently, this Court concludes that

narrowly-tailored, prospective filing restrictions are
necessary. Similar to the restrictions that were
imposed with respect to filings in the District of
Colorado, this Court will order that Plaintiff be
restricted from filing new actions in the U.S.
District Court for the District of Columbia unless he
is either represented by a licensed attorney
admitted to practice in this court or requests and
receives permission from the court to proceed pro se.
As the accompanying order makes clear, with
respect to any request for leave to bring an action
pro se, Smith will be required to file a motion that
includes specific information regarding, among
other things, all prior cases that he has filed in this
district and whether he has previously raised the
legal issues brought in any new complaint. And if
Smith files a pro se action in this district without
first seeking leave to do in accordance with the
stated prerequisites, the new case will be summar-
ily dismissed.

171
 V. CONCLUSION

As explained above, the complaint in this matter

must be dismissed in its entirety—partly due to
sovereign immunity, partly due to absolute judicial
immunity, and generally because no cause of action
exists for the claims that Smith brings. Accor-
dingly, as set forth in the accompanying order, the
Court GRANTS both Defendants’ motions to dismiss
the complaint. Furthermore, in light of Smith’s long
history of filing successive actions against the
judges who dismiss or deny the claims he has made
in previous lawsuits, Smith is ENJOINED from
filing another pro se action in this district without
first seeking leave to file such action, in accordance
with the directions stated in the accompanying
order.

Date: May 26, 2014

__/s/__________________________
KETANJI BROWN JACKSON