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Rogers v. Pitt

February 20, 2008

GERALD L. ROGERS, PLAINTIFF,
v.
HARVEY LLOYD PITT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Gerald L. Rogers has brought this action pro se under the Administrative Procedure Act, 5 U.S.C. § 702, against Harvey Lloyd Pitt, Chairman of the Securities and Exchange Commission ("SEC"), James E. Newsome, Chairman of the Commodities Future Trading Commission ("CFTC"), and Michael J. Gaines, Commissioner of the United States Parole Commission ("USPC"). Mr. Rogers alleges that in February 2005, defendants, in their official capacities, deprived him of his "personal assets and freedom."*fn1 Compl. at 2. He seeks declaratory relief. Compl. at 7-8.

Defendants move to dismiss the complaint under Rule 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure [Dkt. No. 12]. In opposing the motion, Mr. Rogers moves for judgment on the pleadings or for an order to show cause [Dkt. No. 14]. Based upon the parties' submissions and the entire record, the Court will grant the United States's motion to dismiss and will deny Mr. Rogers's dispositive motion and his two other motions for the Court to take judicial notice of Supreme Court law [Dkt. Nos. 23, 25].

I. FACTUAL BACKGROUND

On October 22, 1990, Mr. Rogers was sentenced by the United States District Court for the District of Colorado to 25-years' imprisonment for mail fraud and securities fraud, to be served consecutively to a 10-year sentence imposed by the Central District of California on March 26, 1990. On December 1, 2000, Mr. Rogers was released to parole supervision until December 29, 2024. The USPC revoked Mr. Rogers's parole on October 21, 2003, released him to parole again on December 24, 2003, and revoked him again on August 1, 2005, based in part on the events giving rise to this action.

Mr. Rogers alleges that on February 1, 2005, upon receiving a "private complaint" from Chase Bank of Austin, Texas, regarding a deposit of $550,000 into his corporate bank account, defendants, invoking the "Patriot Act," demanded Mr. Rogers's bank records. Compl. ¶ 7. On February 20, 2005, defendants froze Mr. Rogers's personal and corporate accounts, and on February 25, 2005, "caused the U.S. Marshals to arrest" Mr. Rogers, which prevented him from "closing a $200,000,000.00 trade pending in the Saxo [Bank of Denmark] and Synthesis [Bank in Switzerland]." Id. ¶¶ 8-9. On February 28, 2005, defendants intercepted Mr. Rogers's letter to a friend containing "instructions on how to proceed to ultimately close out the [] currency transaction [to] prevent a loss." Id. ¶¶ 10-11.

On March 2, 2005, the SEC and the CFTC filed enforcement actions against Mr. Rogers in the United States District Court for the Northern District of Texas.*fn2 Based on the foregoing events, the USPC initiated parole revocation proceedings. Following a parole revocation hearing in May 2006, the USPC revoked Mr. Rogers's parole and allegedly "retarded [Mr. Rogers's] 1 year prison sentence . . . by changing his sentence to 10 years." Compl. ¶ 14.

II. LEGAL STANDARD

On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); Rasul v. Bush, 215 F. Supp. 2d 55, 61 (D.D.C. 2002) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936)). A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). At this pleading stage, a complaint may be dismissed only upon a determination that the plaintiff cannot establish "any set of facts consistent with the allegations in the complaint" to support the alleged violation. Bell Atlantic Corp. v. Twombly, ___U.S.___, 127 S.Ct. 1955, 1969 (2007) (citations omitted); Harris v. Ladner, 127 F.3d 1121, 1123 (D.C. Cir. 1997), cert. denied, 531 U.S. 1147 (2001); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

III. ANALYSIS

Mr. Rogers challenges under the APA the statutory authority of the SEC, CTFC and USPC to enforce federal laws in federal court. See Compl. ¶¶ 17-25.*fn3 Because Mr. Rogers is challenging agency action, the Court is satisfied that it has subject-matter jurisdiction.

Mr. Rogers claims that "the defendants knew that the orders and/or judgments on which they were relying and/or seeking were derived from either . . . the District of Colorado or Northern District of Texas -- not from the 'district court of the United States'" and that "defendants substituted the United States District Courts to obtain orders, judgments, or to enforce their prior orders and judgments." Compl. ¶¶ 23-24.

1. The USPC's Authority

Mr. Rogers's claim against the USPC is premised on the wholly erroneous assertion that the sentencing court, the Northern District of Colorado, lacked jurisdiction to impose the sentence enforced by the USPC. As was previously determined in this jurisdiction, Mr. Rogers's challenge to the jurisdiction of this Court's sister courts is frivolous. See Rogers v. United States District Court for the Northern District of Texas., Dallas Division, No. 06-5214, 2006 WL 3498294 (D.C. Cir., Nov. 13, 2006) ("The district court correctly concluded that appellant's complaint is frivolous. . . . Contrary to appellant's assertions, the United States District Court for the Northern District of Texas is an Article III court."); Rogers v. United States District Court for the District of Colorado, No. 06-1010, 2007 WL 1087475 (D.D.C., Apr. 10, 2007) (Sullivan, J.) ("Plaintiffs' reading of the Federal Criminal Code and the Federal Rules of Criminal Procedure lead them to the legally baseless conclusion underlying their complaint that the United States District Court for the District of Colorado and the United States District Court for the Northern District of Texas are not 'district courts of the United States' within ...


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