Cause No.

: 05-20315

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Marianito T. BITARA, individually, and on )

behalf of all persons similarly situated, ) Civil appeal from the
) United States District Court
Plaintiffs-Petitioners, ) for the
) Southern District of Texas,
v. ) Houston Division
)
The State of TEXAS, ) Lower Cause No: H-04-3620
) The Honorable Vanessa Gilmore
Defendant-Respondent. )

Brief of Appellant

Recommendation on Oral Argument

The Plaintiffs suggest that the issues presented could be, and can be, fully

determined upon examination of the record on appeal, and that oral argument

might not benefit the panel. The parties' positions are clear and the record is fairly

uncomplicated. See Federal Rule of Appellate Procedure 34(a)(3).

Nevertheless, the Court may wish to hold oral argument, considering that this

action, made and prosecuted on behalf of at least 951,631 plaintiffs against the

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State of Texas for various claims, has extremely broad or significant implications

in the administration or interpretation of the law, raises complex issues of law, and

is of the utmost paramount interest to the public at large, and society as a whole,

with tremendous repercussions being inherent to the posterity of any interlocutory

or final decisions eventually made herein.

Jurisdictional Statement

This is an appeal, filed timely on Monday, April 11, 2005, from a March 11,

2005, final judgment of the district court in a civil case disposing of all the parties’

claims, including several claims of civil rights violations and due process

violations arising under the Constitution, laws, or treaties of the United States.

The original jurisdiction and power of the district court was invoked pursuant to

at least the following: Article IV, Section 2, of the United States Constitution,

Article VI of the United States Constitution, 28 USC § 1331, 28 USC § 1343, 28

USC § 1367, 28 USC § 1441, 28 USC § 1443, 28 USC § 2201, 28 USC § 2202, 31

USC § 3732, and 42 USC § 2000b-2.

Jurisdiction of this Court to review the district court’s disposition, denial and

dismissal of the same civil rights and due process violations claims arising under

the Constitution, laws, or treaties of the United States is hereby statutorily and

equitably invoked pursuant to the authority vested in, and also provided for, under

at least 28 USC § 1291 and 28 USC § 1447.

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 Statement of Issues Presented for Review

1.Whether the Supreme Court and the Constitution demand certain due process

procedures before states may take away parental custody of children.

2.Whether the district court abused its discretion, if any it had, in refusing to

abide by, and enforce, the duly enacted law of Congress.

3.Whether the district court violated the Seventh and Fourteenth Amendments

by deciding pure issues of fact belonging solely unto the Jury.

4.Whether the district court could even entertain a motion to dismiss proffered

by an attorney without any lawful authority in the case.

5.Whether the district court abused its discretion in refusing to allow the

Plaintiffs to amend their complaint.

6.Whether the district court abused its discretion, if any it had, in refusing

judicial notice, findings of fact and conclusions of law, and ignoring stare decisis.

7.Whether the district court violated the right to a fair, impartial and competent

tribunal guaranteed unto the Plaintiffs by the Sixth and Fourteenth Amendments.

Statement of the Case

On or about September 17, 2004, the Plaintiffs filed their verified complaint,

along with several procedural motions, demands, requests, and notices. (Docket 1,

3, 4, 5, 6, 7). On or about September 22, 2004, the district court issued an order for

pretrial conference and related matters. (Docket 2). On or about October 5, 2004,

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the district court further issued its memorandum regarding discovery, summary

judgment, and analogous motions to dismiss. (Docket 8). On or about October 13,

2004, Defendant State of Texas, ostensibly represented by one Shelley Dahlberg of

the Texas Attorney General’s Office, filed its motion to dismiss. (Docket 9). The

Plaintiffs filed their response and memorandum in support, and the Defendant,

again as though ostensibly represented by Ms. Dahlberg, filed its reply. (Docket 11,

12, 13). Only thereafter did Ms. Dahlberg finally file her motion to appear pro hac

vice. (Docket 14). Shortly thereafter, the district court granted the motion to

dismiss (Docket 16, 17), and the Plaintiffs filed their motion to reconsider and

motion to amend, with memorandum in support. (Docket 18, 19). The Plaintiffs

further submitted their notice of supplemental authority for federal courts to decide

the constitutionality of child custody due process violation claims. (Docket 20).

The State of Texas later responded to said motion to reconsider and motion to

amend. (Docket 22). Meanwhile, other parties filed motions for intervention.

(Docket 21, 24). The district court denied reconsideration and amendment, without

written explanation of any kind. (Docket 25). The Plaintiffs filed their motion to

correct errors and formal requests for findings of fact, conclusions of law, and

judicial notice. (Docket 26). The district court denied the motions for intervention

and to correct errors, refusing to produce findings of fact or conclusions of law,

and even refused judicial notice. (Docket 27). This appeal ensued.

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 Statement of Facts

A separate statement of the facts of the case is unnecessary and would be a

waste, as redundant upon that contained within the statement of the case, which

facts are incorporated by reference the same as if fully set forth herein. (H.I.).

Any further facts are still only in regards to the pleadings and orders filed and

entered within the case itself, and therefore the corresponding individual references

to the record on appeal (the Appendix) are better left designated at those junctures.

Summary of the Argument

The United States Supreme Court says the Constitution demands certain due

process procedures before a state may take away the child custody of a parent.

When a state court takes away the child custody of a parent without first finding

clear and convincing evidence of unfitness, it violates due process and civil rights.

Indeed, the Supreme Court confirms that a federally-cognizable claim was stated.

The district court abused its discretion, if any, by refusing to abide by, or

enforce, the enacted law of Congress, including clear statutory language expressly

waiving 11th Amendment immunity of a state under certain conditions as alleged.

The district court violated the Seventh Amendment in deciding factual issues

belonging solely unto the Jury, instead of restraining itself to only questions of law.

Moreover, the district court could not entertain a motion to dismiss proffered by

an attorney having no lawful authority in the case at the time of filing such motion.

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 The district court abused its discretion in refusing to allow amendment of the

complaint, and by doing so without consideration or written reasons of any kind.

The district court had no discretion to refuse judicial notice and stare decisis. No

court may refuse these types of formal requests, for it not only violates the due

process rights of the parties, it also places undue burden upon reviewing courts.

The district court violated the rights of the Plaintiffs to have a fair, impartial and

competent tribunal that are guaranteed by the Sixth and Fourteenth Amendments.

Argument

The United States Supreme Court and the Constitution demand certain

due process procedures before states may take away parental custody.

There is no standard of review applicable here. It is simply a matter-of-fact

examination of whether the United States Supreme Court has ruled that states must

perform certain federal due process procedures before taking away a parent’s

custody of his or her children. There is no question this answer is affirmative.

A parent's right to raise a child is a constitutionally protected liberty interest.

This is well-established constitutional law. The United States Supreme Court long

ago noted that a parent's right to "the companionship, care, custody, and

management of his or her children" is an interest "far more precious" than any

property right. May v. Anderson, 345 U.S. 528, 533, 97 L. Ed. 1221, 73 S.Ct. 840,

843 (1952). In Lassiter v. Department of Social Services, 452 U.S. 18, 27, 68 L.

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Ed. 2d 640, 120 S.Ct. 2153, 2159-60 (1981), the Court stressed that the parent-

child relationship "is an important interest that 'undeniably warrants deference and

absent a powerful countervailing interest protection.'" quoting Stanley v. Illinois,

405 U.S. 645, 651, 31 L. Ed 2d 551, 92 S.Ct. 1208 (1972).

A parent whose time with a child has been limited to the typical four-days-per-

month visitation clearly has had his or her rights to raise that child severely

restricted. In Troxel v. Granville, 527 U.S. 1069 (1999), Justice O'Connor, speaking

for the Court stated, "The Fourteenth Amendment provides that no State shall

'deprive any person of life, liberty, or property, without due process of the law.' We

have long recognized that the Amendment's Due Process Clause, like its Fifth

Amendment counterpart, 'guarantees more than fair process.' The Clause includes a

substantive component that 'provides heightened protection against governmental

interference with certain fundamental rights and liberty interest" and "the liberty

interest of parents in the care, custody, and control of their children is perhaps the

oldest of the fundamental liberty interest recognized by this Court." Logically,

these forms of fundamental violations are inherently a federal question.

Throughout the last century, the Supreme Court has solidly held that the

fundamental right to privacy protects citizens against unwarranted governmental

intrusion into such intimate family matters as procreation, child rearing, marriage,

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and contraceptive choice. Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833, 926-927 (1992).

In no uncertain terms, the Supreme Court held that a fit parent may not be

denied equal legal and physical custody of a minor child, without a finding by clear

and convincing evidence of parental unfitness and substantial harm to the child,

when it ruled in Santosky v. Kramer, 455 U.S. 745, 753 (1982), that “[t]he

fundamental liberty interest of natural parents in the care, custody, and

management of their child is protected by the Fourteenth Amendment.”

Indeed, the United States Supreme Court has ruled even further binding stare

decisis upon the state courts: Fit parents are implicitly presumed to “act in the best

interests of their children" Parham v. J.R., 442 U.S. 584, 602 (1979).

An abundance of case law supports the conclusion that the Plaintiffs have a

fundamental liberty interest in the custody of their children. See Hollingsworth v.

Hill, 110 F.3d 733, 739 (10th Cir. 1997) (in a Section 1983 suit brought by a

mother whose children were removed from her custody without prior notice, the

mother had "a constitutionally protected liberty interest [in the custody of her

children] which could not be deprived without due process"); Jordan v. Jackson, 15

F.3d 333, 342 (4th Cir. 1994) (in a Section 1983 suit brought by parents whose son

was removed from their custody without prior notice, the court found that there

"are few rights more fundamental in and to our society than those of parents to

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retain custody over and care for their children, and to rear their children as they

deem appropriate"); Weller v. Dep't. of Soc. Servs., 901 F.2d 387, 391 (4th Cir.

1990) (in a Section 1983 suit brought by a father whose children were removed

from his custody without prior notice, the father "clearly [had] a protectible liberty

interest in the care and custody of his children"); Robison v. Via, 821 F.2d 913, 921

(2d Cir. 1987) (in a Section 1983 suit brought by a mother whose children were

removed from her custody without prior notice, "it was clearly established that a

parent's interest in the custody of his or her children was a constitutionally

protected interest of which he or she could not be deprived without due process");

Hooks v. Hooks, 771 F.2d 935, 941 (6th Cir. 1985) (in a Section 1983 suit brought

by a mother whose children were removed from her custody without prior notice,

the court found that it is "well-settled that parents have a liberty interest in the

custody of their children"); Lossman v. Pekarske, 707 F.2d 288, 290 (7th Cir. 1983)

(in a Section 1983 suit brought by a father whose children were removed from his

custody without prior notice, the father "unquestionably" had a liberty interest in

the custody of his children); Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir.

1977) (in a § 1983 suit brought by a mother whose children were removed from

her custody without prior notice, the court found a liberty interest in "the most

essential and basic aspect of familial privacy, the right of the family to stay

together without the coercive interference of the awesome power of the state").

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 It is also clear that the Plaintiffs have a fundamental liberty interest in the

custody of their children, even though their estranged partners might contest legal

custody. Courts have recognized a parent's liberty interest in the physical custody

of a child even when the parent lacks legal custody. For example, in Farina v. City

of Tampa, 874 F. Supp. 383 (M.D. Fla. 1994), prospective adoptive parents sued

the city police after officers returned the child to his biological parents without any

prior notice or judicial proceedings. Id. at 384-85. The defendants conceded the

underlying facts and acknowledged that the operative law provided for notice and

opportunity to be heard before custody decisions are made. Id. at 385. Defendants

argued, however, that plaintiffs had no protected liberty interest because they had

only physical, not legal, custody of the child. The court flatly rejected that

distinction and found "no authority in support of [defendants'] distinction between

physical and legal custody for procedural due process purposes." Id. at 386. On this

basis, partial summary judgment was granted in favor of the plaintiffs. Id. at 387.

Finally, there is no question that the Plaintiffs satisfactorily stated a claim that is

cognizable within the jurisdiction of the federal courts. (App. 5-47). Indeed, the

United States Supreme Court, in Troxel v. Granville, 530 U.S. 57, 68-69, 147 L.

Ed. 2d 49, 120 S. Ct. 2054 (2000) (plurality opinion), has confirmed the same:

A plaintiff will generally have standing where three criteria are met: (1) the
plaintiff has experienced injury in fact; (2) the injury is fairly traceable to the
defendant's conduct; and (3) the plaintiff's harm is likely to be redressed should
the court order relief. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61,

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 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992). [*11] Appellants' claims in
this case easily satisfy the first two criteria. Parents have a fundamental right
to the custody of their children, and the deprivation of that right effects a
cognizable injury. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct.
1388, 1397, 71 L. Ed. 2d 599 (1982). (emphasis added).

Further, any supposed abstention doctrines are wholly inapplicable to direct

challenges to the constitutionality of state court judgments. A federal district court

has subject-matter jurisdiction over claims seeking relief from family-court orders

which emanated under procedures that allegedly violated due process, equal

protection, and other federal statutes. Agg v. Flanagan, 855 F.2d 336, 339 (C.A.6

1988). Where Agg had been brought under §1983 and alleged deprivation of

federal constitutional rights and state procedures that were contrary to federal law

and thus invalid under the supremacy clause, the domestic-relations exception

doctrine, which concerned federal jurisdiction based on diversity, did not apply. Id.

at 339. "[J]urisdiction was therefore proper under 28 U.S.C. sec. 1331 or sec.

1343." Id., U.S. Const. Art. 6, cl. 2; Amends. 5, 14. See also Rubin v. Smith, 817

F.Supp. 987, 991 (D.N.H. 1993) (domestic-relations exception did not apply to a

§1983 civil rights suit that raised constitutional questions and sought damages for

the "deprivation of plaintiffs' constitutional interests without due process of law);

Thomas v. New York City, 814 F.Supp. 1139, 1147 (E.D.N.Y.) (the issue of

"whether the state's procedure used to separate parent from child complie[d] with

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constitutional due-process requirements [was] squarely within [the] court's federal

question jurisdiction").

To the extent that the district court found no federal jurisdiction to review the

allegedly unconstitutional due process of the child custody determinations made by

the State of Texas against the Plaintiffs’ legal interests and rights (App. 161, 206,

220), the district court clearly erred against the binding stare decisis of the United

States Supreme Court, and also against the consistent stare decisis of the federal

judiciary. (cf. App. 146-147, 149, 172-179, 182-184, 187-198, 208, 212-217).

The district court abused its discretion by refusing

to abide by or enforce the enacted law of Congress.

The applicable standard of review might be the same as that used for abuse of

discretion, except that is very rare, indeed, that a district court judge actually

refuses to follow the law duly provided to her, as in this case. Instead, a better

approach is to look at the mandatory rules for statutory construction.

The enactment of 42 USC § 2000d-7 satisfies the ordinary rule of statutory

construction that if Congress intends to alter the "usual constitutional balance

between the States and the Federal Government," it must make its intention to do

so "unmistakably clear in the language of the statute." Atascadero State Hospital v.

Scanlon, 473 U.S. 234, 242 (1985); see also Pennhurst State School and Hospital

v. Halderman, 465 U.S. 89, 99 (1984). Atascadero was an Eleventh Amendment

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case, but a similar approach is applied in other contexts. Congress should make its

intention "clear and manifest" if it intends to pre-empt the historic powers of the

States, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), or if it intends

to impose a condition on the grant of federal moneys, Pennhurst State School and

Hospital v. Halderman, 451 U.S. 1, 16 (1981); South Dakota v. Dole, 483 U.S. 203,

207 (1987).

In Fitzpatrick v. Bitzer, 427 U.S. 445, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976),

the Supreme Court held that Congress can abrogate a State's sovereign immunity

when it does so pursuant to a valid exercise of its power under § 5 of the

Fourteenth Amendment to enforce the substantive guarantees of that Amendment.

Id., at 456, 49 L. Ed. 2d 614, 96 S. Ct. 2666. This enforcement power, as the

Supreme Court has often acknowledged, is a "broad power indeed." Mississippi

Univ. for Women v. Hogan, 458 U.S. 718, 732, 73 L. Ed. 2d 1090, 102 S. Ct. 3331

(1982), citing Ex parte Texas, 100 U.S. 339, 346, 25 L. Ed. 676 (1880).

But it is really much simpler than that, because while the concept of immunity

may afford a sovereign protection from suit "in its own courts without its consent, .

. . it affords no support for a claim of immunity in another sovereign's courts."

Nevada v. Hall, 440 U.S. 410, 416 (1979).

Further, the United States Supreme Court says that this is also consistent with its

previous admonitions that remedial statutes must be construed in favor of those

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whom the legislation was designed to protect. See Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 397-398, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982); Love v.

Pullman Co., 404 U.S. 522, 527, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972).

Moreover, this same Court has agreed and upheld the fundamental principles of

statutory construction, as relates to 42 USC § 2000d-7. In Carrieri v. JOBS.COM

Inc., 393 F.3d 508, 529-530 (5th Cir. 2004), this Court held:

See Lamie v. United States Trustee, 540 U.S. 526, 124 S. Ct. 1023, 1030-31,
157 L. Ed. 2d 1024 (2004). It is well established that, "when the statute's
language is plain, the sole function of the courts - at least where the disposition
required by the text is not absurd - is to enforce it according to its terms." Id. at
1030. Only after application of the principles of statutory construction, including
the canons of construction, and after a conclusion that the statute is ambiguous
may the court turn to the legislative history. See United States v. Kay, 359 F.3d
738, 743 (5th Cir. 2004). For the language to be considered ambiguous,
however, it must be "susceptible to more than one reasonable interpretation" or
"more than one accepted meaning." Id.

Regarding the application of 42 USC § 2000d-7 to this case, the statute clearly

states: “A State shall not be immune under the Eleventh Amendment… from suit

in Federal court for a violation of… the provisions of any other Federal statute

prohibiting discrimination by recipients of Federal financial assistance.”

(emphasis added). The statute clearly and unambiguously states that a state will not

be immune under certain conditions, and can be easily read and understood by a

mere sixth-grader, let alone a first-year law student, a licensed attorney, or any

judge. The purpose and intent is clearly expressed, and there is no other meaning.

The district court was either too incompetent to even understand clearly written

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law, or simply refused to obey the law. (cf. App. 139-141, 181, 208). In either

event, justice was violated by the district court.

The district court violated the Seventh Amendment

by deciding factual issues belonging unto the Jury.

Like the above issue, there is no pivotal amount of discretion for a district judge

to “abuse” regarding a violation of the 7th Amendment right to trial by jury. Instead,

this Court looks toward well established doctrine on that same right.

In Cimino v. Raymark Industries Inc., 151 F.3d 297 (5th Cir. 1998), this Court

fully and correctly detailed the mandatory requirements under a duly claimed

Seventh Amendment right to trial by jury:

The Court said that 'it now seems settled in the lower federal courts that class
action plaintiffs may obtain a jury trial on any legal issues they present,' and
indicated its agreement with the view that derivative suits are one kind of 'true'
class action." 9 Wright & Miller, Federal Practice and Procedure, § 2307 at 79
(footnotes omitted).

Cimino, at 40.

It is axiomatic that a procedural rule cannot 'abridge, enlarge, or modify any

substantive right.' [citing 28 U.S.C. § 2072] Consequently, this court has no
power to define differently the substantive right of individual plaintiffs as
compared to class plaintiffs." 573 F.2d at 317-318 (footnote omitted; emphasis
added).

Cimino, at 42-43.

The right to a jury trial in federal civil cases, conferred by the Seventh
Amendment, is a right to have juriable issues determined by the first jury
impaneled to hear them (provided there are no errors warranting a new trial),

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 and not reexamined by another finder of fact. This would be obvious if the
second finder of fact were a judge. . . . But it is equally true if it is another jury."
51 F.3d at 1303.

Similarly, where legal and equitable claims share one or more overlapping
common factual issues, the legal issues must first be tried to the jury to protect
Seventh Amendment rights that could be infringed by prior bench trial
determination of the common issues. Roscello v. Southwest Airlines, 726 F.2d
217, 221 (5th Cir. 1984).

Cimino, at 72.

Further, Fed. R. Civ. P. 38(a) provides that: "The right of trial by jury as declared

by the Seventh Amendment to the Constitution or as given by a statute of the

United States shall be preserved to the parties inviolate." The original advisory

committee notes reflect that: "This rule provides for the preservation of the

constitutional right of trial by jury as directed in the enabling act . . . ." See also

Fed. R. Civ. P. 42(b) (". . . always preserving inviolate the right of trial by jury as

declared by the Seventh Amendment to the Constitution or as given by a statute of

the United States").

The only way that the district court could “find” that the State of Texas was not

amenable to suit under 42 USC § 2000d-7, as an ostensible question of law, would

be to necessarily also find – first, as a prerequisite – that the State of Texas had not

committed any forms of unlawful discrimination as were alleged by the Plaintiffs.

However, the latter is a factual determination reserved exclusively for the Jury as

duly claimed by the Plaintiffs under the Seventh Amendment – a factual finding

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that the district court was strictly not allowed to make. The State of Texas may, or

may not, yet be able to convince the Jury that it did not commit the proscribed

forms of discrimination, but, regardless, that issue is solely for the Jury to decide,

and by determining that issue for and by itself, the district court violated the law,

specifically the 7th and 14th Amendments to the United States Constitution.

The district court could not entertain a motion to dismiss

proffered by an attorney without lawful authority in the case.

The standard of review on the granting of a motion to dismiss is to review the

matter de novo. As this same Court has said many times:

We review the dismissal of a complaint under rule 12(b)(6) de novo.

Blackburn v. Marshall, 42 F.3d 925, 931 (5th Cir. 1995). A motion to dismiss
under rule 12(b)(6) "is viewed with disfavor and is rarely granted." Kaiser
Aluminum & Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir.
1982). The complaint must be liberally construed in favor of the plaintiff, and all
facts pleaded in the complaint must be taken as true. Campbell v. Wells Fargo
Bank, 781 F.2d 440, 442 (5th Cir. 1986). The district court may not dismiss a
complaint under rule 12(b)(6) "unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99
(1957); Blackburn, 42 F.3d at 931. This strict standard of review under rule
12(b)(6) has been summarized as follows: "The question therefore is whether in
the light most favorable to the plaintiff and with every doubt resolved in his
behalf, the complaint states any valid claim for relief." 5 CHARLES A.
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1357, at 601 (1969).

e.g.: Lowery v. Texas A&M Univ. Systems, 117 F.3d 242 (5th Cir. 1997); St. Paul
Mercury Ins. v. Williamson, 224 F.3d 425 (5th Cir. 2000); and etc.

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 Not only has it been well established that the motion to dismiss was not properly

granted by the district court (having established, herein above, the fact of the

Plaintiffs’ stating of a federally cognizable claim as confirmed by the United States

Supreme Court, and that the express statutory construction of 42 USC § 2000d-7

does, in fact, provide a method for redress against the State of Texas, assuming a

Jury finds for the Plaintiffs), but the same motion to dismiss was never even a

lawfully filed pleading in this cause, and so the very notion is legally null and void.

The motion to dismiss tendered on behalf of the State of Texas was created and

filed by counsel Shelley Dahlberg on or about October 12, 2004. (App. 123-133).

However, Ms. Dahlberg necessarily later made a binding judicial admission that

she did not yet have authority to file such a motion at that earlier time, because she

had not yet established her authority to represent the State of Texas in this case,

which is indisputably shown by her subsequent filing of her motion to appear pro

hac vice on November 30, 2004 – over an entire month later. (App. 160).

When the district court granted said motion to appear pro hac vice (App. 160),

the district court – at that precise moment in time – was duly advised that any

filings from her previously were unlawful, and legally null and void. Indeed, the

district court had a sua sponte duty to either strike or dismiss her motion to dismiss

for the same reasoning, and could have easily done so without prejudice, even

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going so far as to include mention of the possibility of re-filing the same (now that

she then had established her lawful authority to represent the State of Texas).

However, by continuing to entertain that motion to dismiss, let alone eventually

granting it, a fraud upon the court was committed.

A willful blindness by a judge, either to the established record, to the facts of the

case, or to established stare decisis, establishes a presumption of fraud upon the

court.

The elements of a fraud upon the court are (1) conduct by an officer of the court

(2) directed towards the judicial machinery itself that is (3) intentionally false,

willfully blind to the truth or is in reckless disregard for the truth and (4) a positive

averment or concealment, when one is under a duty to disclose, and that (5)

deceives the court. Demjanjuk v. Petrovsky, 10 F.3d 338, 348 (6th Cir. 1993).

A judgment was entered which ought not, in equity and good conscience, be

enforced, the judgment should be vacated under Rule 60(b) as violative of public

policy, because it can be shown as subverting the judicial process and/or

threatening public injury, and, in any case, it would be manifestly unjust for the

original judgment to stand. For these reasons alone, the judgment of the district

court should be reversed, and the case remanded for further proceedings, with this

Court directing that upon said remand, a different judge shall direct proceedings.

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 The district court abused its discretion in refusing to allow amendment.

Again, the standard of review is abuse of discretion. As this same Court has

repeated many times, e.g. Lowery v. Texas A&M Univ. Systems, 117 F.3d 242,

246-247 (5th Cir. 1997):

We review a denial of leave to amend a complaint for abuse of discretion.

Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 934 (5th Cir. 1996), cert.
denied, 136 L. Ed. 2d 713, 117 S. Ct. 767 (1997); Halbert v. City of Sherman, 33
F.3d 526, 529 (5th Cir. 1994). The discretion of the district court is limited,
however, by FED. R. CIV. P. 15(a), which provides that "leave shall be freely
given when justice so requires." Rule 15(a) expresses a strong presumption in
favor of liberal pleading:

Rule 15(a) declares that leave to amend "shall be freely given when justice
so requires"; this mandate is to be heeded. If the underlying facts or
circumstances relied upon by a plaintiff may be a proper subject of relief, he
ought to be afforded an opportunity to test his claim on the merits. In the
absence of any apparent or declared reason--such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment, etc.--the leave
sought should, as the rules require, be "freely given."

Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962).

Lowery, at 4-5.

The Supreme Court has explicitly disapproved of denying leave to amend

without adequate justification:

Of course the grant or denial of the opportunity to amend is within the

discretion of the District Court, but outright refusal to grant the leave without
any justifying reason appearing for the denial is not an exercise of discretion;
it is merely abuse of that discretion and inconsistent with the spirit of the
Federal Rules.

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 Foman, 371 U.S. at 182. Caselaw from this circuit is in accord. See Rolf v.
City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996); Halbert v. City of
Sherman, 33 F.3d 526, 529-30 (5th Cir. 1994); Conti v. Sanko S.S. Co., 912 F.2d
816, 818-19 (5th Cir. 1990). "Given the policy of liberality behind Rule 15(a), it
is apparent that when a motion to amend is not even considered, much less not
granted, an abuse of discretion has occurred." Marks v. Shell Oil Co., 830 F.2d
68, 69 (6th Cir. 1987).

Lowery, at 5-6.

It is crystal clear from the face of the district court’s one-sentence denial of leave

to amend (App. 206) that no consideration, let alone any explanation, was afforded

to the Plaintiffs and their liberally protected right to amend the complaint, and

therefore, also, that both this Court, and the Supreme Court, will find an abuse of

discretion by the district court in regards to the same matter. (cf. App. 182-184).

The district court had no discretion to refuse judicial notice and stare decisis.

While there are abuse of discretion standards of review regarding what materials

the district court can take judicial notice of (e.g.: statutory law, rulings by higher

courts, and adjudicative facts; versus findings and conclusions by other district

courts), it is axiomatic that a district court, once formally requested to take judicial

notice of stare decisis and statutory law, must, in fact, do so, and the situation, like

here, wherein a district court actually denies and refuses judicial notice, altogether,

and without any reasoning, whatsoever, is unheard of within this nation’s federal

judiciary. See, e.g.: C.A. Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 337

(5th Cir. 1982); Charles Alan Wright & Kenneth W. Graham, Federal Practice &

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Procedure: Evidence § 5103 at 472-73 (1977); and, of course, the Federal Rules of

Evidence, Rule 201.

Note: the district court also shockingly refused to produce any findings of fact

or conclusions of law, even after formally requested to do so by the Plaintiffs’

motion to correct errors. (cf. App. 207, 209 to App. 220).

Likewise, neither a district court, nor any federal judge, for that matter, may go

against binding stare decisis without having the most novel and exceptional

circumstances as a prerequisite to such departure, and even then there are duties.

The refusal to obey standing orders of the United States Supreme Court

presumes a ministerial act of the district court to ignore the axiomatic doctrine of

stare decisis, and any departure from the doctrine of stare decisis demands special

justification. See, e.g., Swift & Co. v. Wickham, 382 U.S. 111, 116, 15 L. Ed. 2d

194, 86 S. Ct. 258 (1965); Smith v. Allwright, 321 U.S. 649, 665, 88 L. Ed. 987, 64

S. Ct. 757 (1944); and, Arizona v. Rumsey, 467 U.S. 203, 212, 81 L. Ed. 2d 164,

104 S. Ct. 2305 (1984).

Stare decisis is "of fundamental importance to the rule of law," Welch v. Texas

Dept. of Highways and Public Transportation, 483 U.S. 468, 494, 97 L. Ed. 2d

389, 107 S. Ct. 2941 (1987), because, among other things, it promotes stability and

protects expectations. Vasquez v. Hillery, 474 U.S. 254, 265-266, 88 L. Ed. 2d 598,

106 S. Ct. 617 (1986). “Although always an important guiding principle, it has

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‘special force’ in cases such as this one that involve statutory interpretation because

Congress is in a position to overrule our decision if it so chooses.” Patterson v.

McLean Credit Union, 491 U.S. 164, 172-173, 105 L. Ed. 2d 132, 109 S. Ct. 2363

(1989).

It would indeed be an utterly shocking disgrace upon this Court, if it did not

initiate immediate disciplinary proceedings against the district court sua sponte.

The district court was duly advised, time and time again, of various binding

authorities [stare decisis] of the United States Supreme Court, of this Court, and of

other Circuit Courts, that consistently weighed in on various issues in agreement

with the Plaintiffs’ contentions, yet chose in every single instance to refuse or

ignore the same authorities duly provided. Indeed, the actions of the district court

are an extreme outrage and a willful, self-inflicted disgrace upon the very integrity

of the federal judiciary at large.

The totality of examples are simply too numerous to regurgitate in their entirety

here, but are reviewable within the context and course of the case.

Two of the most obvious examples are: (1) the fact that the United States

Supreme Court has confirmed that the Plaintiffs sufficiently stated a cause of

action cognizable and redressable in a federal court (cf. Brief at 9, vs. Appendix at

213), and (2) the right to amend the complaint (cf. Brief at 19-21, vs. Appendix at

182-184 and 210-211).

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 The district court violated the Plaintiffs’ Sixth and Fourteenth

Amendments’ right to a fair, impartial and competent tribunal.

Again, the standard of review is abuse of discretion. The Plaintiffs had and have

various rights under the 6th and 14th Amendments to a tribunal which is fair,

impartial, and is competent – both to understand the law, and to rule accordingly.

Frankly, by incorporating everything aforementioned in this Brief the same as if

fully set forth herein (H.I.), it should be painfully clear that the district court judge

was neither fair, impartial, nor competent to rule in the instant lower cause, and

that the aforementioned 6th and 14th Amendment rights of the Plaintiffs were

thoroughly violated, if not destroyed, by acts and omissions of the district court.

Conclusion

The United States Supreme Court and the Constitution demand certain due

process procedures before a state may take away the child custody of a parent.

Specifically, parental custody of children is a Constitutional right, and even further

a pre-existing organic right, fully entitled to due process protection in the federal

courts. Parental custody may not be taken away, without first finding unfitness to

parent, and then only by clear and convincing evidence. When a state court takes

away the child custody of a parent without first finding such clear and convincing

evidence of unfitness, it violates due process, civil rights, and the Constitution.

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 The district court abused its discretion, if any, by refusing to abide by the

enacted law of Congress. Judges and courts do not make the law, Congress does. It

is the duty of a court to abide by, and also to enforce, the law as written and

enacted by Congress, including statutory language expressly waiving Eleventh

Amendment immunity of a state under certain conditions alleged, and providing

for all forms of relief against a state that are obtainable against all other entities.

The district court violated the Seventh Amendment in deciding issues belonging

unto the Jury. Whether the State of Texas has violated certain legal duties under

various federal laws, and the associated federal statutory funding programs, not to

discriminate against citizens within those programs or activities, is a set of facts to

be decided by the Jury as rightfully claimed by the Plaintiffs, and not a question of

law that can be decided by the court itself. The Seventh Amendment was violated.

Moreover, the district court could not entertain a motion to dismiss proffered by

an attorney without any lawful authority in the case. At the time she filed her

motion to dismiss, Ms. Dahlberg had not yet established her lawful authority to act

in any manner within this cause. Her motion was therefore invalid, and the district

court correspondingly had no moment to entertain the same, let alone grant it.

The district court abused its discretion in refusing to allow amendment of the

complaint. All proffered “defenses” to the complaint were, and are, jurisdictional

25
issues only. Under this situation, the Plaintiffs have a well established right –

indeed, under all federal circuits – to amend their complaint via 28 USC § 1653.

The district court had no discretion to refuse judicial notice and stare decisis. It

is well established that a federal court – indeed, every court in this country – that is

formally requested to take judicial notice of an existing authority, must do so. The

same is true for formal requests to produce findings of fact and conclusions of law.

No court may refuse these types of formal requests, for it not only violates the due

process rights of the parties, it also places undue burden upon reviewing courts.

Likewise, the doctrine of stare decisis is an axiomatic rule of law in this country,

for both federal and state courts. Any departure from stare decisis may only be

considered under the most novel and extenuating circumstances, and then only by

providing detailed explanations that significantly justifies such a consideration.

The district court violated the rights of the Plaintiffs to have a fair, impartial and

competent tribunal that are guaranteed by the Sixth and Fourteenth Amendments.

By refusing the binding stare decisis of the United States Supreme Court duly

provided regarding several issues, willfully “warring against the Constitution”,

refusing to abide by or enforce clear and unambiguous statutory language of Acts

of Congress expressly waiving 11th Amendment immunity, willfully violating the

7th Amendment by deciding factual issues for itself, entertaining (let alone

granting) a motion to dismiss that it knew was filed before Ms. Dahlberg’s motion

26
to appear pro hac vice had been filed (instead of sua sponte striking the same, even

without prejudice), categorically refusing to allow the Plaintiffs to amend their

complaint without consideration or explanation of any kind, flagrantly refusing to

take judicial notice of existing authorities, and even brazenly denying formal

requests for findings of fact and conclusions of law, it is more than clear that the

district court judge either had no intention of affording a fair and impartial

proceeding unto the Plaintiffs, or that it was plainly too incompetent to do so.

In either event, the district court judge thoroughly violated the Plaintiffs’ rights

to have a fair, impartial and competent tribunal conduct their case, and which same

rights are guaranteed under the auspices of the Sixth and Fourteenth Amendments

to the United States Constitution.

For any one or more of the above reasons, the Plaintiffs are fully entitled to

immediate reversal of the district court judge’s determinations, and of remand to

the United States District Court for the Southern District of Texas for further

proceedings.

Likewise, the Plaintiffs also believe and submit, with good reason as detailed

above, that they should be further entitled for this Court, on such remand, to also

direct that all future proceedings in this cause be conducted by a different judicial

officer in said district.

The Plaintiffs saith further naught.

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