Autistic adults are possibly the best firsthand source for experiencing the DUMB things NeuroTypical officials (and NeuroTypical people more generally), say. Recently, I was the recipient of a truly irrational Court Order / Memorandum by a well meaning Federal Judge who clearly was not someone who like myself has read over 15,000 ADA cases and law review articles. And I understand she probably did not have the time to learn the ADA this way. But millions of disabled Americans do learn the ADA as the only way to try to assert our rights. And this conundrum between the knowledge GAP most disabled Americans have vs. the officials and others who determine our fate often leads to some Amazingly irrational reasoning. One of these gaps involve The Dumb Things NeuroTypical Officials Say About How The Relationship Between Americans With Disabilities Act "Reasonable Accommodations" And "Incompetency" Affects The Autistic People. The recent statement was: 'reasonable accommodations and incompetence are two different things. If you can get an accommodation, you are not incompetent.' Huh ? Come again ? (What if you "can get" the mythological "accommodation," but they don't give it to you ? What then ? Does the Court just take relief against the person with incompetencies without REMOVING them ? And how does that satisfy due process ?). I'll explain what's wrong with this NeuroTypical way of thinking. Most NeuroTypicals are so caught up in themselves and their kind, they really don't think a whole lot about disabled Americans or what it is like to be a disabled American -- much less an Autistic American. Autistic Americans are particularly affected by the above line of mis-conceived thinking. That's why I will go to some length at deconstructing the fallacy. First, it must be admitted that "History of disabled Americans and disability rights" is (1.) not taught in our public schools, (2.) not taught in our colleges and universities for the most part, (3.) not taught in law schools, and (4.) not required to pass a bar exam to qualify for a license to advise all types of officials what their duties are. This situation keeps our elected and appointed officials in the dark about a significant segment of the American population. Disabled Americans see such ignorance, inattention, and lack of awareness every day, as the "diversity" pages of official websites such as The Florida Bar and California State Bar, their bar examiners, and the university law schools that graduate future lawyers depict racial, ethnic, and gender symbols, but never the face of a disabled American. Historically, the "diversity" equation has not included Americans with disabilities and in particular lacks neurodiversity. But to see this, the person (particularly if NeuroTypical) needs to be trained to "spot the issue." This historical entrenchment of pervasive and institutionalized segregation of disabled Americans continues in thousands of state and local laws, and even some federal rules and some of the older statutes, that continue to embody the discriminatory social medical model of disability which causes the NeuroTypical mind to conceive of disability as a medical defect in the individual. Such disability policies are rooted in core NeuroTypical assumptions about the nature of disabilities and the obligations of both individuals and society. Seehttp://www.dredf.org/international/waddington.html. The social medical model of disability sees disability as a defect in an individual that renders the person unable to work or function in society in a conventional "normal" way. Seehttp://www.dredf.org/international/waddington.html. By "normal," NeuroTypicals mean by conformity to their cultural, ethnic "social norm." But, as the Autistic people say, 'normal is only a setting on a washer or dryer,' as science has found a vast diversity in the human species. Rather than adapting their NeuroTypically designed institutions to accommodate disabilities, people with disabilities are directed toward a separate and unequal parallel track that provides income and services apart from the institutions that serve the NeuroTypical majority. Seehttp://www.dredf.org/international/waddington.html. Kinda sorta like "colored" and "white" drinking fountains. The NeuroTypical social medical model arose like the Phoenix from the ashes of the Aryan Eugenics movement of "the perfect human," and has proven dominent because it poses no threat to mainstream NeuroTypical institutions -- it permits the NeuroTypical people to establish public services and "social" institutions without regard for people with disabilities, since it adopts the premis that medical limitations will inevitably render people with disabilities unable to participate. The exclusion of people with disabilities is thus accepted as an inevitable natural consequence of "medical realities." Seehttp://www.dredf.org/international/waddington.html. The separate and unequal parallel Apartheid track is an essential component of the NeuroTypical social medical model because it justifies the failure to include people with disabilities in NeuroTypical mainstream institutions -- by allowing the NeuroTypical people to exclude people with disabilities "with a clear conscience." Id.
The NeuroTypical social medical model places heavy emphasis on sorting and labeling. It inevitably relies on mechanisms to determine which track any given individual should be directed to. It inevitably comes to rely on the notion disabled Americans are an identifiable category of people that can be treated apart from the mainstream of NeuroTypical society. Seehttp://www.dredf.org/international/waddington.html. Like Rosa Parks was required to "sit in the back of the bus."
The civil rights model legislatively re-directs the focus where it belongs on the societal response to disability. The civil rights model rejects the premis that NeuroTypical social exclusion is an inevitable consequence of disability. Seehttp://www.dredf.org/international/waddington.html. Under this view, Americans with disabilities have historically been excluded from NeuroTypical social institutions because those institutions have failed to adapt and design themselves to the needs of the disabled, even as they routinely adapt to the needs of NeuroTypical others. This failure to accommodate flows from NeuroTypicals conscious and unconscious aversions to Americans with disabilities. Id. Seen in this light, the problem is one of discrimination, rather than the need of the person or their caregiver to address that person's inherent medical limitations "imposed by the disability." Id. Under the civil rights model, the goal is to reform NeuroTypical mainstream institutions to include people with disabilities, id., rather than to maintain the parallel track of disenfranchising, disempowering Jim Crow laws. The two models stem from diametrically opposed assumptions and tend toward conflicting objectives. The NeuroTypical social medical model views disability as a medically determined status. By contrast, the civil rights model legislatively determines the limitations relating to medical conditions are the result of an interaction between the condition itself and the social context and environmental design that gives significance to the condition. Seehttp://www.dredf.org/international/waddington.html. Accordingly, under the civil rights legislation, there is no ojectively fixed status of disability, id. -- such as seen in the historical "incapacity" and "incompetency" Jim Crow labling laws.
A number of consequences flow from this disparity in assumptions. Seehttp://www.dredf.org/international/waddington.html.The NeuroTypical social medical model is built on the idea of separation, while the civil rights legislation focuses on inclusion and removes Americans with disabilities to the separate and unequal parallel Apartheid track system. The civil rights legislation is directed to abolishing separate and unequal institutions for Americans with disabilities and integrating such persons into the NeuroTypical mainstream. Id. Additionally, the NeuroTypical social medical model that places emphasis on tracking and sorting thrusts "the inabilities" of Americans with disabilities into flashing neon lights to signal NeuroTypical others. Such Apartheid systems require Americans with disabilities to "validate their status" by proving their various functional inabilities in the form of a "confession" of their "inabilities," Seehttp://www.dredf.org/international/waddington.html, as an extremely damaging hazing entry to the separate and unequal parallel Apartheid track. This process is intended to "mark" Americans with disabilities to reinforce the NeuroTypical stereotypes about the "incompetence" of people with disabilities. Id. In contrast, the civil rights legislation emphasizes the capabilities of Americans with disabilities, requiring obstacles to disabilities to be restructured. Seehttp://www.dredf.org/international/waddington.html. The NeuroTypical social medical model and the civil rights legislation cannot co-exist. The two work at cross-purposes. Seehttp://www.dredf.org/international/waddington.html. Support for the NeuroTypical social medical model undercuts and conflicts with the civil rights legislation. The NeuroTypical people see the civil rights legislation as "a threat" to NeuroTypical institutions that "provide benefits" to Americans with disabilities, id., as well as treat them as no different than Big-Pharma / nursing home commodities (like hogs or cattle) or sheltered workshop / residential group home slave property that brings a buck and serves as a "job creation machine" for the NeuroTypical people through a separate and unequal Apartheid track.
The concept of "reasonable accommodation" is fundamental to remedy the separate and unequal Americans with disabilities Apartheid caste system, so remarkably in its segregation like Nelson Mandela's Soweto, that has existed in the United States for far too long.
Most NeuroTypicals lack the proper understanding that "reasonable accommodation" is the civil rights integration mechanism aimed at removing disability-related obstacles that are the Neurologically Different's "Jim Crow" laws. The United States, and most state and local laws still contain a parallel track for the disabled, who by definition are "neurologially different," based on strategies of exclusion rather than strategies of inclusion. A reasonable accommodation is an alteration to some element of the status quo that is intended to enable a person with a disability to participate in work, higher education, community living, or public life -- that is, to be in the World, to the same extent as the non-disabled. Seehttp://www.harvardlawreview.org/media/pdf/vol126_reasonable_accomodations_law.pdf. As Autistic people say, Autism is "a different way of being," "not lesser," and we have a right to be in the World, Autistically. The archaic NeuroTypical social medical model "incompentency" criteria and guardianship laws are a disability-related obstacle aimed at exclusion via a sorting and tracking mechanism that contravenes the ADA's Title II implementing regulation, 28 C.F.R. Sec. 35.130(b)(8). Their goal is to (1.) make sure the American with disability confesses they are a defective human being, (2.) reinforces the disabled American's second-class citizenship and treatment as "lesser," (3.) "marks" the disabled American for the separate and unequal Apartheid segregation track, where the person's freedom of choice, self-determination, independence, economic-self-sufficiency, respect, dignity, and safety are removed. Autistic Americans are particularly affected, because while we have our own ethnic culture, identity (Spectrumites), beliefs, language (Autistic), and have formed an community sometimes called "Aspie Tribe," the NeuroTypical "incapacity" and "incompetency" separate and unequal Apartheid segregation track does not take our indigenous Tribe into account. Nor does it evaluate Autistic people by our inventor / creative / object-based / systematizing capabilities - the ones that have made a number of us Savants and Nobel Prize winners, inventors of many things that have benefitted humankind, and propelled the computer industry, even as many of us cannot feed ourselves and have many neurological issues. Instead, it evaluates us on our use of a different language than the NeuroTypical majority, who label our Autistic language as 'inability to speak,' 'inability to write,' 'incomprehensible,' 'deviant,' and 'abnormal.' This is no different than the use of Voting "literacy tests" to screen out black Americans at the poll, or labeling their status under the NeuroTypical social medical model as the psychiatric "illness" of drapetomania, that is 'the inability to turn white.' Similarly, homosexuals were a "mental illness" condition in the Diagnostic and Statistical Manual of Mental Disorders based on their sexual orientation, that is not much different than the "extreme male brain" of Autistic women that gives rise to our systematizing abilities. Autistic savants are defined as having a paradox of savant abilities in the same person who has severe neurological brain disabilities. The civil rights "reasonable accommodation" mandate is HOW the incompetencies at certain tasks are REMOVED to level the playing field -- without destroying the talents. Every disability or impairment involves one or more task incompetencies. To impose the NeuroTypical social medical model separate and unequal Apartheid "incapacity" or "incompetency" sorting and tracking suffers from vagueness and overbreadth, is over- and under-inclusive, and mis-conceives the civil rights legislation "reasonable accommodations" mandate, its purpose, and underlying inclusion concept. For example, In Re: McDonough, Petitioner, 457 Mass. 512 (Aug, 11, 2010), clearly demonstrates the "reasonable accommodation" mandate is HOW (the permissible mechanism by which) such an "incapacity" or "incompetency" are removed. See id. at http://masscases.com/cases/sjc/457/457mass512.html. Not by a NeuroTypical social medical model separate and unequal Apartheid "incapacity" or "incompetency" sorting and tracking label with a prior restraint of speech via guardian proxy, but by providing a "reasonable accommodation." In U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002), Justice Breyer reasoned that the concept of "accommodation" contains an implicit effectiveness requirement. So when Autistic people like me encounter one of these GAPS involving The Dumb Things NeuroTypical Officials Say About How The Relationship Between Americans With Disabilities Act "Reasonable Accommodations" And "Incompetency" Affects The Autistic People, it is easy to see from the Autistic perspective how this is an indignity and an affront. Oppression and subjugation are wrong. It is an indignity and an affront because it signifies we Autistic people should be treated lesser (and sometimes dangerously by others) solely because the NeuroTypical social medical model of separate and unequal Apartheid remains ENTRENCHED. Even in the minds and the thinking of otherwise well-meaning NeuroTypical people. It is like being told to drink from the "coloreds only" drinking fountain. Like being told to sit in the back of the bus. Like being sent to separate and unequal schools. Like becoming a commodity or being treated as other people's property. It is NOT Okay. What comes to mind is Dr. Suess' story "The Star-Bellied Sneeches." There were the sneeches with stars and those without. The Star-bellied sneeches wanted to maintain their superiority. Then the "reasonable accommodation" machine came to town, and put stars on those without so Sneechville became color blind. This, like the civil rights "reasonable accommodation" legislation upset the Star-bellied sneeches, because no one could tell the two different groups apart. So they paid to have their stars removed, to maintain the separate and unequal Apartheid system. But before long, due to Neurological Differences and the "reasonable accommodation" machine that was constantly in action, together with the outlawing of the NeuroTypical social medical model, ultimately an integrated color blind society was achieved. For those NeuroTyicals who still say the Incredibly Dumb Things, have you taken a look yet at the DSM-V ? "With 'diagnostic criteria' that include[s] disliking school, fidgeting, disobedience (for children), dissatisfaction with one’s sexual performance, unhappiness, shyness, getting angry, and playing the horses (for adults), Dr. Chodoff ... wrote that this diagnosis would “encourage the quest for a drug to cure the disorder of being human.” Seehttp://luc.edu/media/lucedu/law/students/publications/llj/pdfs/hass.pdf(quoting Dr. Paul Chodoff, Letter to the Editor: Proposed Diagnosis, PSYCHIATRIC NEWS (Jan. 21, 2005), http://psychnews.psychiatryonline.org/newsarticle.aspx?articleid=108472). As the DSM-V (and VI, VII, and VIII) expands the population of Americans with disabilities, the archaic NeuroTypical social medical model "incompentency" criteria and guardianship laws disability-related obstacle aimed at exclusion via a sorting and tracking mechanism will get EVERYONE. (That is, unless you're not human). It is time to start re-THINKING this IRRATIONAL NeuroTypical Apartheid system of segregation. It is SEPARATE and UNEQUAL. And it is UN-American.
I am writing another blog post on the Autism abuses that are so pervasive in our American society practiced by NeuroTypical elected officials, this time, the elected officials of the Alachua County, Florida Value Adjustment Board. It has been reported to me these officials, who are members of a Title II Americans with Disabilities Act "public entity" (the name for all state and local governmental entities that are by the plain language of Congress' Act subject to comply with it), said at open public hearing today 'Title II of the ADA has nothing to do with us.' These same officials also calculate Florida property taxes by the following scientific method: 'Well, the property appraiser dropped it.' Yes, you brilliant rocket scientists - but does that mean it is what the property's actual valuation is ? The officials did not want to hear from this Autistic gimp, because after the Alachua County Value Adjustment Board was directed in writing by Florida Dept. of Revenue that (1.) they "shall" comply with Title II of the ADA, and (2.) that the ADA pre-empts conflicting Florida law, the officials removed the Title II ADA effective communication reasonable accommodations and reasonable modifications they previously provided to me on numerous occasions over the past 2 years, and did so to make CERTAIN I would not be able to be heard. Yeah !!! Brillilant thinking officials - if you use the removal of medically necessary reasonable accommodations as means not to hear from an Autistic property owner, (light bulbs are going off in the Neuro-Typical officials heads), the County can do a Takings of property without due process of law or paying just compensation !!! Yeah !!! Brilliant idea, and so much in the favor of stuffing the official money coffers full while budget cuts are hampering the County. But even better, these Alachua County Value Adjustment Board officials are so hip on Autism, even more so than the Autism doctors at Yale, that they believe a severely Autistic adult who cannot feed herself is capable of "overcoming the presumption of correctness" such that her failure to do so can be assigned as "cause" to tax her worthless property to the HILT -- just like her failure to be able to feed herself, if it should result in her starvation, can be assigned to her as "cause" of her death. RATIONAL thinking. Rational Alachua County Value Adjustment Board officials always think rationally - so much so, they say three properties that: (1.) have marketable title that allows the ability for mortgage refinancing, (2.) have easements for right of legal ingress and egress, (3.) do not involve the daily risk of death from being smashed to smitherines by a CSX train, and (4.) do not face CSX double trackage being laid by taking a chunk of their front field, is "comparable" to our property that (1.) lacks marketable title and cannot obtain mortgage refinancing, (2.) has no easement for right of legal ingress and egress, (3.) involves daily risk of death from CSX train collision that has killed one woman on our CSX railroad crossing already and the Fed Ex driver two crossings up the road in the same locale, and (4.) faces CSX double trackage being laid in the near future that will take a chunk of our front field.
When the Alachua County Value Adjustment board officials today were rationally analysing the "comparability" on the above facts, one official remarked about the Fed Ex driver smashed by a CSX train in torrential rains who was dragged 1-2 crossings South before the train could stop, and was WIDELY publicized in the news, "Well, did he commit suicide ?" RATIONAL thinking !!! It is alive and well in Alachua County Value Adjustment Board officials !!! It seems, however, that the only RATIONAL person at the Alachua County Value Adjustment Board hearing today was the Property Appraiser and his attorney, Val Bates - when Hubby asked: "Who here knows what Title II of the ADA is ?," Val Bates said "I do." THANK GOD someone had a rational, thinking brain today. But that does not mean the valuation of the property is accurate. How is trivializing the value and worth of an Autistic person's and Autism family's lives by attributing all CSX railroad crossing deaths as 'committing suicide' a proper basis for valuation of real property for property tax purposes using "comparable" properties that do not have the property attribute of having to cross a CSX railroad crossing every day ? Yeah, I would like to see the statute for that. And why do NeuroTypical officials in our government THINK they can get away with these kinds of affronts to the Autistic people ? Because they still think we are retards too stupid and undeserving to know the difference. These indignities, separate and unequal, and unjust mistreatment is really no different in kind than the similar way Autism parents are treated every time they try to get our public schools to give their Autistic child a Free and Appropriate Public Education ("FAPE") through compliance with a proper IEP. I KNOW Autism families everywhere can identify and will know what I am talking about. It is just not right to single out a discrete and insular minority class of Autistic people and make them perpetuated at the bottom of a segregated American caste system. On another note, does Fed Ex know the Alachua County Value Adjustment Board just defamed its driver, Martin Beckles, by innuendo saying he dies crossing a CSX railroad track 'by committing suicide ?'
I have reported in my blog posts before about the ongoing saga that happened when Honorable Magistrate Gary R. Jones, made a judicial "fact finding" that (1.) I "suffers from autism," Petranos v. Old Republic et al., N.D.Fla. No. 1:12-cv-00086-SPM/GRJ, Dkt. 116, pg. 5, and that I am "a licensed California lawyer,' id., Dkt. 74, pg. 1 n.1. Carl B. Schwait is a law professor at the University of Florida Levin College of Law in Gainesville, Florida, and a member of The Florida Bar Board of Governors. Trevor Rhodes and Richard Bower are University of Florida Levin College of Law school graduates. They called me (an adult with Autism and Fragile X mental retardation) who is a non-lawyer "a lawyer" to cheat me out of $100,000 in insurance benefits Nationwide owed me under the insurance policy my family had with them. Autism families everywhere know all too well how big insurance companies will use ANY sleazy tactic to deny coverage of insurance benefits due the moment they learn the insured has Autism, no matter what kind of insurance it is. This is a KEY problem all across the United States impacting the Autism community adversely. I have since learned that the pleadings I could not see to read that kept being served on me by Carl B. Schwait, Trevor Rhodes, Richard Bower, and Nationwide insurance company in Petranos v. Old Republic, et al., N.D.Fla. No. 1:12-cv-00086-SPM/GRJ were the impetus that caused the Honorable Magistrate Gary R. Jones to adjudicate me, a non-lawyer, 'a licensed member of the California Bar.'
Carl B. Schwait, Esq. and Nationwide insurance company, through and in
concert with their counsel, Trevor Rhodes, Esq. and Richard Bower, Esq., filed pleadings
in Petranos v. Old Republic, et al., N.D.Fla. No. 1:12-cv-00086-SPM/GRJ, making knowing and material false
statement of fact that I am ‘a licensed lawyer’ knowing I am not:
see id., Dkt. 213, pg. 2 (“Plaintiffs, a law school graduate and
Florida attorney and member of the Florida Bar”) (plural, calling both
undersigned David Petrano and M.K.D.P. each a member of The Florida Bar); id., Dkt.171, pg. 7 (“Plaintiffs are both law school graduates
with David Petrano being a member of the Florida Bar and Mary Katherine
Day-Petrano having passed California’s Bar;” “Other courts have
recognized Plaintiffs’ background as significant to include a legal education
and bar licensing”) (plural, calling me a licensed member of the
California Bar), pg. 11 (“these particular Plaintiffs, law school graduates and Bar members”) (plural, calling me a licensed member of the Bar);
id., Dkt. 19, pg. 6 (same); id., Dkt. 55, pg. 5 (same); id., Dkt. 15 (same). To the extent I was not able to see to read and understand Carl B. Schwait's, Trevor Rhodes,' Richard Bower's, and Nationwide insurance company's pleadings due to my disabilities during the Petranos v. Old Republic, et al., N.D.Fla. No. 1:12-cv-00086-SPM/GRJ case due to their refusal to accommodate my disabilities, I now see that Honorable Magistrate Gary R. Jones was actively misled by Carl B. Schwait, Trevor Rhodes, Richard Bower, and Nationwide insurance company when it resulted in his judicial "fact finding" I am 'a California lawyer.'id., Dkt, 74 n.1. That fact finding has never been vacated or removed, and it has been widely published on the Internet as well as on legal databases like LEXIS -- despite my REPEATEDLY demanding that they STOP calling me, a non-lawyer, "a lawyer." I tried to file a Florida Bar disciplinary grievance complaint against Carl B. Schwait, Trevor Rhodes, and Richard Bower for knowingly calling me, a non-lawyer, "a lawyer" to cheat me out of $100,000 in Nationwide insurance benefits due to me. The Florida Bar lawyer regulation officers, Kenneth Marvin, Jeffrey Brown, Heidi Brewer, Lawrence Sellers, Daniel Nee, and Maritz Arroyo (Florida Bar's response) told me it was okay for Carl B. Schwait, Trevor Rhodes, and Richard Bower to knowingly call me, a non-lawyer, "a lawyer" to financially exploit me as a severely Autistic adult. In retaliation, The Florida Bar lawyer regulation officers, Kenneth Marvin, Jeffrey Brown, Lawrence Sellers, Daniel Nee, and Maritz Arroyo, and Carl B. Schwait (sitting as head of the Eighth Judicial Circuit Grievance Committee "A" on the writing distributed to my husband, deciding his own fate) brought attorney discipline charges against my husband, David F. Petrano, and made "probable cause" findings in the absense of providing him his requested Title II Americans With Disabilities Act "reasonable accommnodations," and made findings my husband 'made material false statement of fact' when he repeatedly filed pleadings and told people I am not a licensed lawyer. Lawrence Sellers and Daniel Nee area also law school grads of University of Florida Levin College of Law. I wanted to update this ongoing saga, because THIS is how adults with Autism and Autism families are being mis-treated across this Country. Lawrence Sellers, by the way, works for Holland & Knight law firm, a law firm with a notorious reputation of discrimination in its recent historical past. I want to repeat to the public: I am NOT a lawyer. I have NEVER held myself out to be a lawyer. I have REPEATEDLY asked Carl B. Schwait, Trevor Rhodes, Richard Bower, and Nationwide insurance company to REMOVE all published statements referring to me as "a lawyer" when they know I am not, including the "fact finding" of Honorable Gary R. Jones which their knowing material false statements of fact induced. In closing, one might have to ask: if The Florida Bar and members of its Board of Governors are going around committing the despicable misconduct of knowingly calling a non-lawyer "a lawyer," can they even regulate themselves ? Ot is it time to abolish The Florida Bar and give lawyer regulation in Florida over to the Department of Business and Professional Regulation ? One thing is sure - this is Autism abuse, and The Florida Bar lacks proper safeguards to protect the Autistic disabled public from harm by its own officers.
HERE is my response to the US National Security who has told me they have been on my Facebook page (same as Trevor Rhodes admitted in writing he has been on my same Facebook page, in Petranos v. Old Republic et al., N.D.Fla. No. 1:12-cv-00086-SPM/GRJ, Dkt. 196-3), where I have received death threats, where I have been told my Magistrate Jones case (removal case) outcome was "fixed" to go against me (similar to how Trevor Rhodes attempted to manipulate my bankruptcy case in disobedience of a Senior District Court Judge's Order as I posted in two posts of earlier today), where I have been mocked over my daughter being threatened under FISA Orders, and where I have been blasted with known epilepsy seizure triggers -- I have been a Sprint, Verizon, and AT&T customer under the FISA Orders mentioned over the 7 year period and I have the same standing to file a new lawsuit for injunctive relief just like the one below: "UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION; NEW YORK CIVIL LIBERTIES UNION; and NEW YORK CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs, v. JAMES R. CLAPPER, in his official capacity as Director of National Intelligence; KEITH B. ALEXANDER, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service; CHARLES T. HAGEL, in his official capacity as Secretary of Defense; ERIC H. HOLDER, in his official capacity as Attorney General of the United States; and ROBERT S. MUELLER III, in his official capacity as Director of the Federal Bureau of Investigation, Defendants.
ECF CASE COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case No. Hon.
Arthur N. Eisenberg (AE-2012) Christopher T. Dunn (CD-3991) New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, NY 10004 Phone: (212) 607-3300 Fax: (212) 607-3318 firstname.lastname@example.org
Jameel Jaffer (JJ-4653) Alex Abdo (AA-0527) Brett Max Kaufman (BK-2827) Patrick Toomey (PT-1452) Catherine Crump (CC-4067) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 email@example.com
June 11, 2013
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1.This lawsuit challenges the government’s dragnet acquisition of Plaintiffs’ telephone records under Section 215 of the Patriot Act, 50 U.S.C. § 1861.1 In response to information published by the media, the government has acknowledged that it is relying on Section 215 to collect “metadata” about every phone call made or received by residents of the United States. The practice is akin to snatching every American’s address book—with annotations detailing whom we spoke to, when we talked, for how long, and from where. It gives the government a comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, political, professional, religious, and intimate associations. 2.The government has confirmed the authenticity of an order issued six weeks ago by the Foreign Intelligence Surveillance Court (“FISC”) requiring Verizon Business Network Services Inc. (“VBNS”) to turn over, every day, metadata about the calls made by each of its subscribers over the three-month period ending on July 19, 2013. Government officials have indicated that the VBNS order is part of a program that has been in place for seven years and that collects records of all telephone communications of every customer of a major phone company, including Verizon, AT&T, and Sprint. 3.Plaintiffs the American Civil Liberties Union and the American Civil Liberties Union Foundation are current VBNS subscribers whose communications have already been monitored by the government under the VBNS order and whose communications continue to be monitored under that order now. Plaintiffs the New York Civil Liberties Union and the New York Civil Liberties Union Foundation are former customers of VBNS whose contract of service recently expired but whose telephony metadata likely remains in government databases. The 1 “The Patriot Act” is the common name for the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272. 1
government’s surveillance of their communications (hereinafter “Mass Call Tracking”) allows the government to learn sensitive and privileged information about their work and clients, and it is likely to have a chilling effect on whistleblowers and others who would otherwise contact Plaintiffs for legal assistance. This surveillance is not authorized by Section 215 and violates the First and Fourth Amendments. Plaintiffs bring this suit to obtain a declaration that the Mass Call Tracking is unlawful; to enjoin the government from continuing the Mass Call Tracking under the VBNS order or any successor thereto; and to require the government to purge from its databases all of the call records related to Plaintiffs’ communications collected pursuant to the Mass Call Tracking. JURISDICTION AND VENUE 4.This case arises under the Constitution and the laws of the United States and presents a federal question within this Court’s jurisdiction under Article III of the Constitution and 28 U.S.C. § 1331. The Court also has jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 702. The Court has authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202. The Court has authority to award costs and attorneys’ fees under 28 U.S.C. § 2412. 5.Venue is proper in this district under 28 U.S.C. § 1391(b)(2), (c)(2). PLAINTIFFS 6.The American Civil Liberties Union (“ACLU”) is a 501(c)(4) non-profit, non- partisan organization that engages in public education and lobbying about the constitutional principles of liberty and equality. The ACLU has more than 500,000 members, including members in every state. The ACLU is incorporated in Washington, D.C. and has its principal place of business in New York City.
7.The American Civil Liberties Union Foundation (“ACLUF”) is a 501(c)(3) organization that educates the public about civil-liberties issues and employs lawyers who provide legal representation free of charge in cases involving civil liberties. It is incorporated in New York State and has its principal place of business in New York City. 8.The New York Civil Liberties Union (“NYCLU”) is a 501(c)(4) non-profit, non- partisan organization that functions as the ACLU affiliate in New York and that has as its mission the advancement and protection of civil liberties and civil rights. The NYCLU is incorporated in New York and has its principal place of business in New York City. 9.The New York Civil Liberties Union Foundation (“NYCLUF”) is a 501(c)(3) non-profit, non-partisan organization whose mission is to defend civil rights and civil liberties and to preserve and extend constitutionally guaranteed rights to people whose rights have historically been denied. The NYCLUF provides counsel in lawsuits seeking to advance civil liberties and civil rights. It is incorporated in Delaware and has its principal place of business in New York City. DEFENDANTS 10.Defendant James R. Clapper is the Director of National Intelligence (“DNI”). DNI Clapper has ultimate authority over the activities of the intelligence community. 11.Defendant Lt. Gen. Keith B. Alexander is the Director of the National Security Agency (“NSA”) and the Chief of the Central Security Service. Lt. Gen. Alexander has ultimate authority for supervising and implementing all operations and functions of the NSA, the agency responsible for conducting surveillance authorized by the challenged law. 12.Defendant Charles T. Hagel is the Secretary of Defense. Secretary Hagel has ultimate authority over the Department of Defense, of which the NSA is a component.
13.Defendant Eric H. Holder is the Attorney General of the United States. Attorney General Holder has ultimate authority over the Department of Justice and the Federal Bureau of Investigation (“FBI”) and is responsible for overseeing aspects of the challenged statute. 14.Defendant Robert S. Mueller III is the Director of the FBI and is responsible for applications made to the FISC under Section 215 of the Patriot Act. BACKGROUND The Foreign Intelligence Surveillance Act 15.In 1978, Congress enacted the Foreign Intelligence Surveillance Act (“FISA”) to govern surveillance conducted for foreign-intelligence purposes. The statute created the Foreign Intelligence Surveillance Court (“FISC”), a court composed of seven (now eleven) federal district court judges, and empowered the court to grant or deny government applications for surveillance orders in foreign-intelligence investigations. 16.Congress enacted FISA after years of in-depth congressional investigation by the committees chaired by Senator Frank Church and Representative Otis Pike, which revealed that the Executive Branch had engaged in widespread warrantless surveillance of United States citizens—including journalists, activists, and members of Congress—“who engaged in no criminal activity and who posed no genuine threat to the national security.” Section 215 of the Patriot Act 17.Section 215 of the Patriot Act is often referred to as FISA’s “business records” provision. When originally enacted in 1998, this provision permitted the FBI to apply to the FISC for an order to obtain business records of hotels, motels, car and truck rental agencies, and storage rental facilities.
18.Section 215 broadened this authority by eliminating any limitation on the types of businesses or entities whose records may be seized. In addition, Section 215 expanded the scope of the items that the FBI may obtain using this authority from “records” to “any tangible things (including books, records, papers, documents, and other items).” 19.Section 215 also relaxed the standard that the FBI is required to meet to obtain an order to seize these records. Previously, FISA required the FBI to present to the FISC “specific and articulable facts giving reason to believe that the person to whom the records pertain [was] a foreign power or an agent of a foreign power.” In its current form, Section 215 requires only that the records or things sought be “relevant” to an authorized investigation “to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” 20.Production orders issued under Section 215 are accompanied by gag orders generally forbidding recipients from revealing “that the Federal Bureau of Investigation has sought or obtained tangible things.” Recipients may challenge gag orders “[n]ot less than 1 year after the date of the issuance of the production order.” If a recipient challenges a gag order, the FISC must treat the government’s claim “that disclosure may endanger the national security of the United States or interfere with diplomatic relations . . . as conclusive.” 21.For the past several years, members of Congress have been warning the public that the Executive Branch was exceeding the limits of the Patriot Act. In 2009, Senator Russ Feingold stated during a hearing that “there . . . is information about the use of Section 215 orders that I believe Congress and the American people deserve to know,” adding later that “Section 215 has been misused.” In 2011, Senator Ron Wyden declared, “When the American people find out how their government has secretly interpreted the Patriot Act, they will be
stunned and they will be angry.” Similarly, Senator Mark Udall protested that “Americans would be alarmed if they knew how this law is being carried out.” 22.On June 5, 2013, The Guardian disclosed that, under Section 215, the NSA has been acquiring the metadata for every phone call made or received by customers of VBNS “on an ongoing daily basis.” 23.Since the disclosure of the VBNS order last week and the government’s official acknowledgement of it, the outcry in Congress has increased sharply. Representative Jim Sensenbrenner, an author of the Patriot Act and chairman of the House Judiciary Committee at the time of Section 215’s passage, called the Section 215 surveillance program “an abuse of that law.” He wrote that, “based on the scope of the released order, both the administration and the FISA court are relying on an unbounded interpretation of the act that Congress never intended.” PLAINTIFFS’ ALLEGATIONS 24.Plaintiffs are non-profit organizations that engage in public education, lobbying, and pro bono litigation upholding the civil rights and liberties guaranteed by the Constitution. Collectively, Plaintiffs have more than 500,000 members, including members in every state. Plaintiffs’ employees routinely communicate by phone with each other as well as with journalists, current and potential clients, legislators and legislative staff, and members of the public. These communications relate to Plaintiffs’ advocacy, representation of clients, and efforts to lobby Congress. Plaintiffs’ communications are sensitive and often privileged. 25.For example, Plaintiffs frequently place or receive phone calls from individuals relating to potential legal representation in suits against the federal government or state governments. Often, the mere fact that Plaintiffs have communicated with these individuals is sensitive or privileged.
26.In ongoing litigation, Plaintiffs often communicate with potential witnesses, informants, or sources who regard the fact of their association or affiliation with Plaintiffs as confidential. Particularly in their work relating to national security, access to reproductive services, racial discrimination, the rights of immigrants, and discrimination based on sexual orientation and gender identity, Plaintiffs’ work often depends on their ability to keep even the fact of their discussions with certain individuals confidential. 27.Similarly, Plaintiffs often communicate with government and industry whistleblowers, lobbyists, journalists, and possible advocacy partners who consider the confidentiality of their associations with Plaintiffs essential to their work. 28.Plaintiffs ACLU and ACLUF are current customers of Verizon Business Network Services Inc. (“VBNS”) and Verizon Wireless. VBNS provides the ACLU’s and ACLUF’s wired communications, including their landlines and internet connection. Verizon Wireless provides their wireless communications, including their mobile phones. 29.Plaintiff NYCLU was a customer of VBNS until early April 2013. Until that time, VBNS provided the NYCLU’s wired communications, including their landlines. 30.On June 5, 2013, The Guardian published a FISC order directing VBNS to produce to the National Security Agency “on an ongoing daily basis . . . all call detail records or ‘telephony metadata’” of its customers’ calls, including those “wholly within the United States.” Secondary Order at 2, In re Application of the FBI for an Order Requiring the Prod. of Tangible Things from Verizon Bus. Network Servs., Inc. on Behalf of MCI Commc’n Servs., Inc. d/b/a Verizon Bus. Servs., No. BR 13-80 (FISC Apr. 25, 2013), available at http://bit.ly/11FY393. The VBNS order was issued on April 25, 2013 and expires on July 19, 2013. The order was issued ex parte, and there is no procedure for Plaintiffs to challenge it in the FISC.
31.In the few days since The Guardian disclosed the VBNS order, government officials have revealed more about the government’s surveillance under Section 215. On June 6, Defendant Clapper officially acknowledged the authenticity of the VBNS order and disclosed details about the broader program supported by the FISC’s orders issued under Section 215. Among other things, he stated that: “[t]he judicial order that was disclosed in the press is used to support a sensitive intelligence collection operation”; “[t]he only type of information acquired under the Court’s order is telephony metadata, such as telephone numbers dialed and length of calls”; and “[t]he [FISC] reviews the program approximately every 90 days.” 32.The following day, President Barack Obama also commented publicly on the Section 215 order. Like Defendant Clapper, the President acknowledged that the intelligence community is tracking phone numbers and the durations of calls. 33.Members of the congressional intelligence committees have confirmed that the order issued to VBNS was but a single, three-month order in a much broader, seven-year program that the government has relied upon to collect the telephone records of all Americans. Senator Dianne Feinstein has stated that “this is the exact three-month renewal of what has been the case for the past seven years. This renewal is carried out by the [FISC] under the business records section of the Patriot Act.” Senator Saxby Chambliss has likewise stated that “[t]his has been going on for seven years.” 34.News reports since the disclosure of the VBNS order indicate that the mass acquisition of Americans’ call details extends beyond customers of VBNS, encompassing all wireless and landline subscribers of the country’s three largest phone companies. See Siobhan Gorman et al., U.S. Collects Vast Data Trove, Wall St. J., June 7, 2013, http://on.wsj.com/11uD0ue (“The arrangement with Verizon, AT&T and Sprint, the country’s
three largest phone companies means, that every time the majority of Americans makes a call, NSA gets a record of the location, the number called, the time of the call and the length of the conversation, according to people familiar with the matter. . . . AT&T has 107.3 million wireless customers and 31.2 million landline customers. Verizon has 98.9 million wireless customers and 22.2 million landline customers while Sprint has 55 million customers in total.”); Siobhan Gorman & Jennifer Valentino-DeVries, Government Is Tracking Verizon Customers’ Records, Wall St. J., June 6, 2013, http://on.wsj.com/13mLm7c (“The National Security Agency is obtaining a complete set of phone records from all Verizon U.S. customers under a secret court order, according to a published account and former officials.”). 35.As customers of VBNS, Plaintiffs ACLU and ACLUF are covered by the now- public order of the FISC requiring VBNS to turn over all of its customers’ call records— including all of Plaintiffs’ call records—on an ongoing basis. Upon information and belief, Plaintiff NYCLU was covered by a similar order prior to the expiration of their contract with VBNS. Also upon information and belief, Plaintiffs ACLU and ACLUF are covered by a similar order directed to Verizon Wireless. The information collected includes Plaintiffs’ numbers, the numbers of their contacts, the time and duration of every single call they placed or received, and the location of Plaintiffs and their contacts when talking on mobile phones. This information could readily be used to identify those who contact Plaintiffs for legal assistance or to report human-rights or civil-liberties violations, as well as those whom Plaintiffs contact in connection with their work. The fact that the government is collecting this information is likely to have a chilling effect on people who would otherwise contact Plaintiffs.
CAUSES OF ACTION 36.The Mass Call Tracking exceeds the authority granted by 50 U.S.C. § 1861, and thereby violates 5 U.S.C. § 706. 37.The Mass Call Tracking violates the First Amendment to the Constitution. 38.The Mass Call Tracking violates the Fourth Amendment to the Constitution. PRAYER FOR RELIEF WHEREFORE the plaintiffs respectfully request that the Court: 1.Exercise jurisdiction over Plaintiffs’ Complaint; 2.Declare that the Mass Call Tracking violates 50 U.S.C. § 1861 and 5 U.S.C. § 706; 3.Declare that the Mass Call Tracking violates the First and Fourth Amendments to the Constitution; 4.Permanently enjoin Defendants from continuing the Mass Call Tracking under the VBNS order or any successor thereto; 5.Order Defendants to purge from their possession all of the call records of Plaintiffs’ communications in their possession collected pursuant to the Mass Call Tracking; 6.Award Plaintiff fees and costs pursuant to 28 U.S.C. § 2412; 7.Grant such other and further relief as the Court deems just and proper. Respectfully submitted,
Arthur N. Eisenberg (AE-2012) Christopher T. Dunn (CD-3991) New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, NY 10004 Phone: (212) 607-3300
/s/ Jameel Jaffer Jameel Jaffer (JJ-4653) Alex Abdo (AA-0527) Brett Max Kaufman (BK-2827) Patrick Toomey (PT-1452) Catherine Crump (CC-4067) American Civil Liberties Union Foundation
Fax: (212) 607-3318 firstname.lastname@example.org
125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 email@example.com
Here is Trevor Rhodes, Esq.'s Response untimely filed today under Fed. R. Civ. P. 11 and Fed. R. Bankr. P. 11 certifying that his pleading is not frivolous or filed for any improper purpose when he represents IN DIRECT DISOBEDIENCE OF HON. SENIOR UNITED STATES DISTRICT COURT JUDGE MAURICE PAUL'S APRIL 30, 2013 ORDER, that it is 'an appeal' and that my Objections to the Chief Bankruptcy Judge's Report and Recommendation filed by May 28, 2013 IN COMPLIANCE WITH THE ORDER, should be stricken as unauthorized and untimely -- THIS SHOWS THE OPENLY FRAUD ON THE COURT BY WHICH TREVOR RHODES, ESQ. AND BANKER LOPEZ GASSLER Tampa law firm obtained the sanctions "to deter" my Autistic language and behaviors without my being able to see to read any of the pleadings he filed against me to do so, and by which it appears this lawyer and law firm litigate cases against other Florida parties and law firms:
"UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION
DAVID F. PETRANO and MARY KATHERINE DAY-PETRANO,
TREVOR RHODES, et al,
DEFENDANTS, TREVOR RHODES, BANKER LOPEZ GASSLER PA, CARL SCHWAIT AND NATIONWIDE MUTUAL FIRE INSURANCE COMPANY’S RESPONSE AND OBJECTION TO PLAINTIFF-DEBTOR’S RESPONSE T O HON. CHIEF BANKRUPTCY JUDGE ’S RECOMMENDATION MOTION FOR WITHDRAWAL OF REFERENCE
COME NOW, the Defendants, TREVOR RHODES (“Rhodes”), BANKER LOPEZ GASSLER PA (“BLG”), CARL SCHWAIT (“Schwait”) and NATIONWIDE MUTUAL FIRE INSURANCE COMPNAY (“Nationwide”), pursuant to the Federal Rules of Civil Procedure, file this Response and Objection to Plaintiff-Debtor’s Response to Hon. Chief Bankruptcy Judge’s Recommendation Motion for Withdrawal. (Doc. 12). Although the Plaintiffs’ concurrent Chapter 12 bankruptcy is presently stayed, Defendants feel a response is required because the allegations and issues raised in Plaintiffs’ response directly relate to the bankruptcy. In support of their response and objection, Defendants state the following: 1. As this Court is aware, this is a federal court case with a long and convoluted
procedural history but a brief background, highlighting the main points leading up to this response, is necessary. 2. On January 24, 2013, after the Plaintiffs’ filed a complaint and amended complaint against the named Defendants, the Court adopted a report and recommendation, ordered the dismissal of Plaintiffs’ case with prejudice and entered final judgment. (Doc. 225, 179 1:12-cv- 00086-SPM-GRJ) 3. On February 4, 2013, it was further recommended that sanctions be awarded due to the frivolous nature of the Complaint. (Doc. 182, 1:12-cv-00086-SPM-GRJ). 4. Following the entry of the Magistrate’s Report and Recommendation recommending sanctions, the Plaintiffs’ filed for Chapter 12 Bankruptcy (Doc. 1, 13-10052-KKS). Subsequently, the Plaintiffs filed a Suggestion of Bankruptcy on February 12, 2013 and asserted in their filing that this underlying action was subject to the automatic stay provided in 11 U.S.C. § 362. (Doc. 191, 1:12-cv-00086-SPM-GRJ).
5. Defendants immediately filed a motion seeking to strike the Petranos’ Suggestion of Bankruptcy, correctly pointing out that the automatic stay typically associated with the filing of bankruptcy would not apply in a case where, as here, the debtors were plaintiffs rather than defendants, nor to the pending award of sanctions. (Doc. 192, 1:12-cv-00086-SPM-GRJ). 6. The Suggestion of Bankruptcy was ultimately stricken. (Doc. 206, 1:12-cv-00086-SPM- GRJ). 7. At a hearing held on April 4, 2013, the Bankruptcy Court ruled that no such stay was in Place. (Doc. 73, 13-10052-KKS). 8. On April 16, 2013, Judge Specie entered the Order on Order to Show Cause as to Appointment of Guardian Ad Litem in Plaintiffs’ Chapter 12 Bankruptcy, case number 13- 10052. Judge Specie specifically ordered that “[t]his Chapter 12 case, and all applicable deadlines shall be stayed until further order of the Court to permit the Debtors time to seek a determination in state court as to whether Day-Petrano is incompetent and as to whether, and to what extent, a guardian ad litem should be appointed for Day-Petrano.” Whether from oversight or clerical error, the Plaintiffs did not mention the judge’s Order in their response. (Doc. 80, 13- 10052-KKS). 9. On April 22, 2013, the District Court withdrew the reference with report and recommendation. (Doc. 1). 10. The Plaintiffs’ filed a response, effectively requesting the District Court to take judicial notice of their allegations and deny Judge Specie’s Report and Recommendation Motion to Withdraw Reference, which is itself an appeal and procedurally inappropriate. (Doc. 9).
Memorandum of Law
I. Defendants did not Waive Proof of Claim or Make Judicial Admission
One portion of the Plaintiffs’ allegations in their response filing is that the Defendants have somehow waived their proof of claim by not filing the same before the originally set deadline in the Plaintiffs’ Chapter 12 Bankruptcy. Defendants maintain that they did not waive their proof of claim or make a judicial admission by not filing a proof of claim prior to the bar date because Judge Specie specifically ordered that all deadlines be stayed in the bankruptcy until further order. (Doc. 80, 13-10052-KKS). As such, the Defendants were stayed from filing a proof of claim. Clearly, no judicial admission was made in this case and the only reason Defendants are compelled to respond is because the Plaintiffs are employing tactics to elicit judicial notice from this District on a bankruptcy matter.
Defendants would also submit that the Plaintiffs are attempting to usurp the ruling of the bankruptcy court by essentially requesting judicial notice from the district court and appealing the report and recommendation without any procedural support. On April 16, 2013, the bankruptcy court entered its Order and stated that the Plaintiffs’ Chapter 12 bankruptcy “and all applicable deadlines shall be stayed until further order of the Court…” (Doc. 80, 13-10052- KKS). Directly relating to the proof of claim bar date, Defendants contend that they are not only stayed from filing a proof of claim because of the order, but that the Plaintiffs are ignoring the appropriate appeals process if they so elect to object to the withdrawal of reference.
Finally, even if the Court determines that Defendants proof of claim was not filed timely and it declares judicial notice on a bankruptcy matter, 11 U.S.C.A. § 501(c) states in part that “[i]f a creditor does not timely file a proof of such creditor's claim, the debtor or the trustee may file a proof of such claim.” Therefore, the proof of claim is not waived.
II. Defendants did not Fail to File Adversary Complaint
Similarly, the Plaintiffs also contend that the Defendants failed to timely file an adversary complaint to determine the dischargeability of their claim. The Defendants maintain that they did not fail to file the adversary complaint to determine the dischargeability of its debt within the sixty (60) days outlined in 11 U.S.C. 523(c) because the entire bankruptcy, including deadlines, was stayed by Judge Specie on April 16, 2013. The sixty (60) days to file the adversary complaint lapsed on May 14, 2013, approximately one month after Judge Specie’s Order. Additionally, the dischargeability of Defendants’ claim, the subject of such an adversary complaint, is the purpose of the withdrawal of reference.
At the risk of being duplicative, the Defendants reiterate that the bankruptcy court, having jurisdiction over this matter, stayed the Plaintiffs’ bankruptcy until further order. (Doc. 80, 13-10052-KKS). The Plaintiffs are simply attempting to usurp the bankruptcy court’s ruling by judicial noticing these matters and ignoring the appropriate procedural and appellate process. The bankruptcy is stayed, therefore the defendants have not failed to file an adversary proceeding to determine dischargeability of claim.
III. Issue at Bar is not a Core Proceeding and Therefore a Withdrawal of Reference is Appropriate
Finally, Plaintiffs delved into discourse regarding mandatory and permissive withdrawal of reference. First, this matter has already been withdrawn to this Court and the Plaintiffs’ response to Judge Specie’s recommendation is untimely. Second, case law establishes that a “core proceeding” is one that could arise only in the context of a bankruptcy case. See, McCord v. Papantoniou, 316 B.R. 113 (E.D.N.Y.2004); In re Burger Boys, Inc., 183 B.R. 682 (S.D.N.Y.1994); In re Cossett, 75 B.R. 766 (Bkrtcy.S.D.Ohio 1987). By extension, matters that are merely related to bankruptcy case are not core proceedings, and thus, although they are within bankruptcy jurisdiction of district court, bankruptcy judge to whom such matter is referred may only propose findings of fact and conclusions of law to assist district court in rendering judgment. See, In re Markos Gurnee Partnership, 182 B.R. 211 (Bkrtcy.N.D.Ill.1995).
Conversely, “non-core proceedings” in bankruptcy are those “otherwise related” to case under title 11 which have significant connection to debtor's bankruptcy but do not satisfy the standard for core proceedings in that the proceeding does not arise under title 11 or in a case under title 11. Plaza at Latham Associates v. Citicorp North America, Inc., 150 B.R. 507 (N.D.N.Y.1993).
Additionally, the Defendants object to the absurd allegation that they are forum shopping this matter. The proceeding at bar arose out of the Plaintiffs’ civil suit against the named Defendants and not from their subsequent bankruptcy or other proceedings. As permitted by statute, the bankruptcy court correctly filed a motion to withdraw the reference and this Honorable Court correctly withdrew the reference to render judgment for the sake of judicial economy.
WHEREFORE, the Defendants, RHODES, BLG, SCHWAIT and NATIONWAIDE,
request that Plaintiffs’ Response be stricken or denied, as well as any and all other relief deemed just and appropriate, in light of the bankruptcy court’s Order Staying Chapter 12 case, and the numerous delineated reasons.
CERTIFICATE OF LOCAL RULE 7.1(B) GOOD FAITH CONFERENCE
The undersigned counsel hereby certifies that counsel for Nationwide Mutual Fire Insurance Company and Carl Schwait, has attempted to confer with pro se Plaintiffs, David F. Petrano and Mary Katherine Day-Petrano, in regards to this matter via email on June 13, 2013, in a good faith effort to resolve the issues presented by Defendants’ response and the relief sought. However, the parties were unable to reach an agreement on same.
Dated this 13th day of June, 2013.
BANKER LOPEZ GASSLER P.A. 501 E. Kennedy Blvd., Suite 1500 Tampa, FL 33602-5246 (813) 221-1500 Fax No: (813) 222-3066 Attorneys for Defendants Schwait and Nationwide
/s/ Trevor T. Rhodes Trevor T. Rhodes Florida Bar No: 0020573 BANKER LOPEZ GASSLER P.A. 501 E. Kennedy Blvd., Suite 1500 Tampa, FL 33602-5246 (813) 221-1500 Fax No: (813) 222-3066 Email: firstname.lastname@example.org Attorneys for Rhodes, BLG, Schwait and Nationwide
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 13th day of June, 2013, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, and will send notice via email or U.S. Mail to the following: David F. Petrano 11502 SE U.S. Hwy 301 Hawthorne, FL 32640
Mary Katherine Day-Petrano 11502 SE U.S. Hwy 301 Hawthorne, FL 32640
Gina G. Smith Butler Pppas Weihmuller 3600 Maclay Blvd., Suite 101 Tallahassee, FL 32312
/s/ Trevor T. Rhodes Trevor T. Rhodes Florida Bar No: 0020573 BANKER LOPEZ GASSLER P.A. 501 E. Kennedy Blvd., Suite 1500 Tampa, FL 33602-5246 (813) 221-1500 Fax No: (813) 222-3066 Email: email@example.com Attorneys for Carl Schwait and Nationwide"