ANSWER TO DEFENDANTS' MOTION TO DISMISS, Page 1

Filed: March 16, 1998

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Comes now the plaintiff, before the Court, to answer the defendants' MOTION TO DISMISS.

Defendants' claim, pursuant to their attorneys, that the Court should dismiss the action against them for the following reasons:

1. That the Court lacks subject matter jurisdiction, and;

2. Because of insufficiency of service of process.

The defendants seem to have failed to grasp what the subject matter is in this action. The subject matter is slavery and involuntary servitude, and the constitutional questions which surround these serious matters. The research that the plaintiff has done has brought forward no case where these serious constitutional questions have been presented to the Court for adjudication, and no case was cited on these serious constitutional issues in the defendants' MOTION TO DISMISS, thereby strengthening the presumption that the issues of slavery and involuntary servitude are ripe for judicial determination. Realizing the unusual circumstances surrounding this case, the plaintiff thought it best to bring the case before the Court in a Bivens action, since his labor is property and the defendants had unlawfully trespassed upon his labor in an attempt to unlawfully gain a superior right to his labor without his consent, thereby unlawfully enslaving him. No one, besides the plaintiff, as of yet, has seemed to grasp the seriousness of these matters.

The plaintiff is aware that a Bivens action is always against individual federal officials, while a suit under FTCA is against the United States. Further, FTCA covers only local, common-law tort injuries, not constitutional torts as defined by Bivens. "We do not believe that the Federal Tort Claims Act comprehended federal constitutional torts in its reference to the law of the place under § 1346." Birnbaum v. U.S. 588 F. 2d 319, 327 (2nd Cir. 1978). Therefore, since the tort in this case is a constitutional tort, a Bivens action is the proper remedy.

The plaintiff's firm position is that the IRS, acting under authority of the Treasurer and Commissioner, attempted to exercise a superior right to his labor without his consent. All one needs to do is read the statement which is all in capital letters at the head of the NOTICE sent to Nelson Hatcher (exhibit C of COMPLAINT), which reads: "DO NOT WRITE TO IRS ABOUT THIS NOTICE OR THE LIST(S)-JUST TAKE THE ACTIONS INDICATED BELOW." One need not be a scholar to understand this statement. It is very straightforward, in that, Mr. Hatcher was specifically instructed by the IRS, acting under authority of the Treasurer and Commissioner, to begin despoiling plaintiff of 31% of his labor. Along these lines, consider the words of E.N. Elliott, who was president of Planters' College, Mississippi in pre Civil War times. In his INTRODUCTION to Cotton is King and Pro-Slavery Arguments (Pritchard, Abbott, & Loomis; Augusta, Ga., 1860) we read:

"In most countries of the world, especially in former times, the persons of the slaves were the absolute property of the master, and might be used or abused, as caprice or passion might dictate. Under the Jewish law, a slave might be beaten to death by his master, and yet the master go entirely unpunished, unless the slave died outright under his hand. Under the Roman law, slaves had no rights whatever, and were scarcely recognized as human beings; indeed, they were sometimes drowned in fish ponds, to feed the eels. Such is not the labor system among us. As an example of faulty definition, we will adduce that of Paley: 'Slavery,' says he, 'is an obligation to labor for the benefit of the master, without the contract or consent of the servant.'" pg. vi.

Plaintiff asks the Court, in all soberness, has not the IRS in this action, acting under the direction and control of the Treasurer and Commissioner, attempted to gain a superior right to the plaintiff's labor without the contract or consent of the plaintiff? And yet the defendants claim there is no subject matter jurisdiction.

The defendants' attorneys assert that Robert Rubin, Secretary of the Treasury, and Margaret Richardson, former Commissioner of Internal Revenue, should be removed as defendants in the action before the bar because "A suit against an officer or agent of the United States Government with respect to actions taken in his official capacity is held to be against the United States itself." (pg. 4 of defendants' MOTION TO DISMISS.) Hence the question: Was the Treasurer and the Commissioner acting in their "official capacity" by instructing or allowing their subordinates to despoil people of the fruits of their labor? Does the Constitution, as written today, allow this type of activity? To answer this, consider the following excerpt from Justice Curtis' dissenting opinion in the Dred Scott decision:

"...the status of slavery embraces every condition, from that in which the slave is known to the law simply as a chattel, with no civil rights, to that in which he is recognized as a person for all purposes, save the compulsory power of directing and receiving the fruits of his labor." Dred Scott v. Sanford 19 How. 393, 625-26. (emphasis added)

The money Nelson Hatcher paid to the plaintiff represented his compensation for labor. There is no gain or profit in a man laboring for his bread. The plaintiff, in his COMPLAINT on page 2, cites the statutes that empower both the Treasurer and the Commissioner to direct the manner in which the taxing powers are to be used. To use the taxing powers to collect taxes from persons functioning in a corporate or a quasi-corporate capacity is one thing, but to use the taxing powers to direct and receive the fruits of a human being's labor is quite another. Whether or not the Treasurer and the Commissioner have wittingly or unwittingly instructed or allowed their subordinates to make arbitrary determinations that use the force of law to despoil workers of their labor thereby imposing the status of slavery on workers is immaterial. The fact is that whoever is empowered to direct and control the manner in which the taxing powers are exercised has a grave responsibility to see to it that such powers are not used to strip workers of their right to a free labor market. As Chief Justice Marshall stated long ago:

"If one of the heads of departments commits any illegal act, under colour of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgement of the law." Marbury v. Madison 1 Cranch 137, 170.

If the defendants' attorneys would have read The Saturday Evening Post article entitled THE INCOME TAX (May 17, 1913 ed.) that is attached to plaintiff's SUPPORTING BRIEF #1, they would have readily seen that the Congress had absolutely no intention whatsoever to despoil workers of their labor with the income tax. In fact, 21 years after the income tax began in 1913, an excerpt from an editorial by George Lorimer found on page 22 of the March 31, 1934 edition of The Saturday Evening Post states:

"By income taxes we strive to redress the balance and at the same time make the builders of great fortunes pay proper toll to the society which has made their success possible."

Plaintiff has a difficult time understanding how someone who labors for their bread can be deemed as one of "the builders of great fortunes." It is therefore emphatically the responsibility of those who are empowered to direct the taxing powers to see to it that the taxing powers are not used to impose the status of slavery upon workers. Since the Treasurer and Commissioner have neglected their duties in this regard, they are not to be deemed as functioning in their "official capacity" because they are allowing their subordinates to prey upon the ignorance of working people and despoil them of the fruits of their labor, thereby imposing the status of slavery upon them. This type of activity violates the 13th Amendment of the United States Constitution and violates Article IV, § 3. There is no umbrella of immunity when officials exercise powers beyond those described in the Constitution. Hence, no government official has absolute immunity, but only qualified immunity.

"An officer who acts in violation of the United States Constitution ceases to represent the government." Brookfield Co. v. Stuart, (1964) 2, 34 F Supp 94, 99 US DC, Washington, DC.

Also, in plaintiff's CONSTITUTIONAL CHALLENGES which are part of the record in this action, plaintiff raises the issue of whether or not the Constitution allows executive officers to exercise taxing powers, since Article I, § 8 specifically vest taxing powers in the Congress, and the plaintiff can find no provision in the Constitution which allows executive officers to exercise taxing powers. Hence, the question is raised whether or not the Treasurer and the Commissioner are de facto officers when it comes to exercising taxing powers. The Constitution does not empower the monster to feed itself.

Nihil aliud potest rex quam quod de jure potest. The king can do nothing but what he can do legally. 11 Co. 74.

The defendants, through their attorneys, claim that "THE UNITED STATES IS THE REAL PARTY OF INTEREST IN THIS ACTION." (pg. 4 of defendants' MOTION TO DISMISS.) Since the Treasurer and the Commissioner acted outside their constitutional authority, they are personally liable, and not to be deemed as acting in their official capacity. Slavery and involuntary servitude can only exist in America if the individual is convicted of a crime (see the 13th Amendment, U.S. Const). The defendants' MOTION TO DISMISS nowhere shows that the plaintiff has been convicted of a crime which would allow defendants to enslave him. In addition, since defendants are personally liable, the judgement prayed for would not, as alleged on page 4 of defendant's MOTION TO DISMISS, "expend itself solely against the federal treasury," but would expend itself upon the defendants named in the suit. The defendants are not taking into account the extraordinary circumstances brought forward in this action. The law may sleep, but it does not die.

The defendants, through their attorneys, claim that "plaintiff makes no specific factual allegations that the named federal officials acted outside of their official capacities." (pg. 4 of defendants' MOTION TO DISMISS.) Plaintiff hopes that common sense is still recognized here. For example, let's say that a slave from plantation A one night sneaks onto plantation B and burns down slaveholder B's barn. Who would the owner of the barn sue for damages? The slave who burned down the barn of plantation owner B? Of course not. The slaveholder of plantation B would logically sue the owner of the slave, for the master is responsible for the actions of his servants. This same logic applies in this case. The agents of the IRS would not be arbitrarily despoiling workers of their labor if the IRS agents' masters did not empower them to do so. The masters, according to 26 USC, § 7802 & § 7803, are the Treasurer and the Commissioner. Therefore, they are the ones that are properly named in this action because they are allowing their servants to violate the Constitution. This point was brought forward on page 2 of plaintiff's COMPLAINT, but evidently needs to be expounded upon further.

"The master is answerable for every such wrong of the servant or agent as is committed by him in the course of the service and for the master's benefit, though no express command or privity of the master be proved; L.R. 2 Ex. 259; 36 L.J. Ex. 147. Such liability springs out of the relation itself and does not depend on the stipulations of their contract. Within the scope of his authority, the servant may said to be the medium through which the master acts; it follows, as a general rule, that for the tortious acts of the servant, the master is liable; 42 Ark. 453; 116 US 624; 2 Wheat. 345; 11 Bush 465; 25 Ill. App. 521; 19 Wend. 345; 40 E.L. & Eq. 329; 26 Vt. 178; 155 Mass. 104; 75 Hun 68; 160 Pa. 300; 63 Conn. 155; 98 Mich. 1; although contrary to his express orders, if not done in wilful disobedience of those orders; 14 How. 468; 7 Cush. 385; 10 Ill. 509; 132 US 518; see 65 Hun 619. Bouvier's Law Dict., 1934 ed., pg. 765.

Actus servi in iis quibus opera ejus communiter adhhibita est, actus domini habetur. The act of a servant in those things in which he is usually employed, is considered the acts of his master. Lofft. 227

In claiming that the United States is the real party to this action, the attorneys representing the defendants are attempting to invoke the doctrine of sovereign immunity, in that, the United States can only be sued in the capacity it has consented to be sued. This is but a clever way to attempt to throw an umbrella of immunity over the Treasurer and the Commissioner. Such an insidious doctrine would allow the federal taxing powers to convert America into one vast Slave Plantation, in that, the free labor market that the workers of America are supposed to have could be stripped from them and the workers of the country would all be extra legem. Adjuvari quippe nos, non decipi, beneficio oportet. For we ought to be helped by a benefit, not destroyed by it. Dig. 13. 6, 17. 3; Broom, Max. 392.

On page 6 of defendants' MOTION TO DISMISS, Section 7421 (a) of the I.R. Code is cited which bars anyone from maintaining a suit restraining the assessment and collection of any tax in any court by any person. However, the defendants, through their attorneys, have erred by using legal fiction to assume that the I.R. Code (26 USC) applies to the plaintiff. The income tax was only designed to tax the gains and profits of persons functioning in a corporate or a quasi-corporate capacity, it did not empower the Federal Government to nationalize the labor of the people. See: Brushaber v. Union Pacific R.R. 240 US 1, and Flint v. Stone Tracy Co. 220 US 107.

Fictio cedit veritati, fictio juris non est ubi veritas. Fiction yields to truth; where the truth appears, there can be no fiction of law. 11 Co. 51.

Further, shortly after the Constitution was adopted, Justice Iredell stated:

"No court in America ever yet thought, nor, I hope, ever will, of acquiring a jurisdiction by a fiction." Maxfield's Lessee v. Levy 4 Dall. 330, 334.

It is plaintiff's firm position that the Federal Government has no authority to directly tax the earnings of laborers, but only has the lawful authority to tax persons who function in a corporate or a quasi- corporate capacity who are in business for gains and profits. Plaintiff is not liable to Title 26 USC and therefore the federal taxing authorities have no right to his books and papers (4th Amendment, U.S. Const.), nor do they have the right to try and arbitrarily despoil him of his labor (13th Amendment, U.S. Const.).

"Conceding that the witness was an officer of the corporation under investigation, and that he was entitled to assert the rights of the corporation with respect to the production of its books and papers, we are of the opinion that there is a clear distinction between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for an examination at the suit of the state. The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business his own way. His power to contract is unlimited. He owes no duty to the state or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. He owes no such duty to the state, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the state, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under warrant of law. He owes nothing to the public so long as he does not trespass upon their rights." Hale v. Henkel 201 U.S. 43, 26 S. Ct. Rptr., pg. 379.

Let us now consider the statement found on page 7 of defendants' MOTION TO DISMISS which states, "...plaintiff's first request that the Court permanently enjoin defendants 'from enforcing its tax codes upon plaintiff's labor' seeks to frustrate those objectives and should be denied." This is a very significant statement, apparently unguarded. The "objectives" are, if one uses a little common sense, the despoliation of the peoples' labor at the pleasure of the Federal Government with minimum interference. This brings the crux of the matter to bear as far as the labor of the people is concerned. Here the defendants, through their attorneys, have made a clear statement that they believe themselves to have the lawful authority to make a determination as to what portion a human being may keep of their labor, and what portion will be taken away. If this be the case, then the workers of America are in a condition of serfdom to the Treasurer and the Commissioner. Hence the question: Does the Constitution, as written today, empower the Treasurer and the Commissioner to be the overlords of human labor in America?