Dollar Coin Klos vs Paulson




IN THE UNITED STATES COURT OF APPEALS

FILED FOR THE 11th CIRCUIT U.S. COURT OF APPEALS


President of the United States in Congress Assembled Coins
proposed to be included in the US Presidential Dollar Coin Act 



No. 08-14645

THOMAS K. KAHN,  CLERK


STANLEY KLOS, Plaintiff, Appellant

v.

HENRY M. PAULSON, JR., in his capacity as Secretary of the Treasury,  Defendant, Appellee


NOTES ON THE FINAL RULING:

August 2009 
We at the Forgotten Founders Corporation were pleased  that the FIFTH Circuit United State Court of Appeals remanded the with prejudice lower court dismal of our case  back to the United States District Court of Middle Florida to be dismissed without prejudice due to standing issues.  The good news is, this ruling overturning the lower court's prejudice dismissal enabled us to re-file a Writ of Mandamus against the Secretary of the Treasury fully addressing the standing issue brought forth by the defendant's legal team.  




Although we still believe the ten Presidents who served under the Constitution of 1777 should be included in the $1.00 Presidential Coin Act, it was decided not to re-file a second Writ of Mandamus despite the requests of numerous Articles of Confederation Presidential descendants for the following reasons:



  1. The $1 Presidential Coin Act of 2005 expressly precludes the Presidents of the Continental Congress from being honored on the dollar coin.  Unlike the Articles of Confederation Presidents, these men were not Presidents of the United States under a federally ratified constitution.  We believe that Presidents of the Continental Congress Peyton Randolph, Henry Middleton, John Hancock, Henry Laurens, John Jay and Samuel Huntington should also be honored along with the Presidents of the United States who served under both 1777 and 1787 U.S. Constitutions. 
  2. To accomplish this we must either seek to amend the $1 Presidential Coin Act of 2005 ordering all United Colonies and United States Presidential images  be included on the new Dollar coins or propose a new Presidential Coin Act for an entirely different Coin. The dollar coin program is NOW well into the minting of the Constitution of 1787 Presidents and an amendment to the $1 Coin Act would only disrupt an already struggling program.
  3. In light of the above, we are decided to follow U.S. District Judge Steven D. Merryday’s advice to pursue the recognition of the early Presidents legislatively. The proposed U.S. Founding Half-Dollar Coin Act  serves the purpose of acknowledging the unicameral United Colonies and United States Presidency which began in 1774 and faded away in 1789.   This  U.S. Founding Half-Dollar Coin Act, if enacted, this Act will go a long way to right U.S. Presidential History while accenting the $1 Presidential Coin Act of 2005.   

The U.S. Founding Half-Dollar Coin Act has been submitted to President Barack H. ObamaSecretary of the Treasury Timothy Geithner, and the members of the U.S. Senate Banking Committee where the $1 Presidential Coin Act of 2005 honoring the Presidents of the Constitution of 1787 originated.  Bill Stanley of the Norwich Historical Society and Channing Huntington of the Huntington Homestead Museum in Connecticut are working directly with U.S. Senate Banking Committee Chairman Christopher Dodd’s office.

Thanking you in advance for your consideration and support  our efforts to pass the U.S. Founding Half-Dollar Coin Act. 


Stanley L. Klos | President
Forgotten Founders 
www.forgottenfounders.org


By: Stanley Yavneh Klos





  • First United American Republic: United Colonies of North America: 13 British Colonies United in Congress was founded by 12 colonies on September 5th, 1774 (Georgia joined in 1775)  and governed through a British Colonial Continental Congress.  Peyton Randolph and George Washington served, respectively, as the Republic's first President and Commander-in-Chief;
  • Second United American Republic: The United States of America: 13 Independent States United in Congress was founded by 12 states on July 2nd, 1776 (New York abstained until July 8th), and governed through the United States Continental CongressJohn Hancock and George Washington served, respectively, as the Republic's first President and Commander-in-Chief; 
  • Third United American Republic: The United States of America: A Perpetual Union was founded by 13 States on March 1st, 1781, with the enactment of the first U.S. Constitution, the Articles of Confederation, and governed through the United States in Congress Assembled.  Samuel Huntington and George Washington served, respectively, as the Republic's first President and Commander-in-Chief; 
  • Fourth United American Republic: The United States of America: We the People  was formed by 11 states on March 4th, 1789 (North Carolina and Rhode Island joined in November 1789 and May 1790, respectively), with the enactment of the U.S. Constitution of 1787. The fourth and current United States Republic governs through  the U.S. House of Representatives and Senate in Congress Assembled, the U.S. President and Commander-in-Chief, and the U.S. Supreme Court.  George Washington served as the Republic's first President and Commander-in-Chief.

Frequently Answered Questions:


What happened to the case history on the Klos vs. Paulson $1.00 Presidential Coin Act of 2005 Complaint?

The complete transcript of the case  and its exhibits follows these FAQs.


Why the Kennedy Half-Dollar, won't this upset JFK supporters ?

Like the Sacagawea Gold Dollar, The John F. Kennedy Half-Dollar will return once the minting of the Founders and their Capitols are complete.  Unlike the Sacagawea Gold Dollar, the program will not last a score of years.  The U. S. Founding Half Dollar Coin Act is proposed to run only four years and then return to the John F. Kennedy Half Dollar.  Finally, knowing President Kennedy's love for history we believe true JFK advocates will support this tribute to the U.S. Founding Presidents and their Capitols.

Why include all the old U.S. Capital buildings on the reverse with the names of events that in their cities and towns?

People are unaware that the United Colonies and States of America had numerous seats of governments from 1774 to 1788. Additionally, most U.S. Citizens do not realize the scope of legislation enacted during this period, such as the Articles of Confederation, Definitive Treaty of Peace Between Great Britain and the United States, Northwest Ordinance and US Constitution of 1787.  This legislation as well as hundreds of laws, resolutions and proclamations were all enacted in capitol buildings many years before Washington DC was even conceived.  The capitol buildings on the Reverse are paired to the appropriate Presidencies on the Obverse giving the holder a sense of who the President is, when he served, what legislation his Congress enacted, where and in what building Congress convened.

Richard Henry Lee  proposed Half Dollar Coin

Why Did you decide to bring the U. S. Founding Half Dollar Coin Act  before the United States Senate Committee on Banking, Housing, and Urban Affairs and who are the Committee Members:

The 2009 United States Senate Committee on Banking, Housing, and Urban Affairs originated the $1.00 Presidential Coin Act of 2005 making it the proper venue for this new Act.  The current Committee members are:

MajorityMinority
Source: 2009 Congressional Record, Vol. 155, Page S729, S730, S878-879

What Can I do to help?
  • Write President Barack Obama and the committee members urging them to support the proposed Half Dollar Coin Act.
  • Pass on the U.S. Founding Half-Dollar Coin Act  site onto others asking for their support.
  • Write or call the Committee Members listed below.  Also let your Congressmen know about the proposal.





UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION



CASE NO: 8:08-cv-843-T-23TBM

STANLEY KLOS, Plaintiff,

v.


HENRY M. PAULSON, JR., in his capacity as Secretary of the Treasury, Defendant.



ORDER


Pursuant to the mandate (Doc. 19) of the United States Court of Appeals for the Eleventh Circuit, the plaintiff’s complaint is DISMISSED WITHOUT PREJUDICE.

ORDERED in Tampa, Florida, on April 1, 2009.






IN THE UNITED STATES COURT OF APPEALS

FILED FOR THE 11th CIRCUIT U.S. COURT OF APPEALS


No. 08-14645

Non-Argument Calendar

ELEVENTH CIRCUIT  -- JAN 29, 2009

THOMAS K. KAHN,  CLERK



D. C. Docket No. 08-00843-CV -T-23-TBM





STANLEY LOUIS KLOS, Plaintiff - Appellant,


versus



HENRY M. PAULSON, JR.,  in his capacity as Secretary  of the Treasury, Defendant- Appellee

Appeal from the United States District Court for the Middle District of Florida

(January 29, 2009)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:

Stanley Klos filed a pro se complaint seeking a declaration, pursuant to 28 U.S.C. § 2201, that the term "Presidents of the United States" within the meaning of the Presidential $1 Coin Act of 2005, Pub. L. No. 109-145, 119 Stat. 2664, codified at 31 U.S.C. § 5112(n) ("the Coin Act"), includes the ten men who served under the Articles of Confederation as the President of the United States in Congress Assembled. Pursuant to the Mandamus Act, 28 U.S.C. § 1361, Klos's complaint also sought an order directing the Secretary of the Treasury to issue one dollar coins bearing the names and likenesses of these ten men.

The district court granted the government's motion to dismiss for failure to state a claim, filed pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court concluded that the Coin Act does not require the Secretary to issue such one dollar coins and, thus, Klos had no cognizable right to relief under § 1361 or § 220l.

We agree with the government that the allegations in Klos' s complaint, taken as true, do not establish Article III standing 1. See Stalley ex reI. United States v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (lIth Cir. 2008) (explaining that plaintiff's complaint must allege, inter alia, "an injury in fact a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical" to establish Article III standing). 

Accordingly, we do not address the merits of Klos's claims. We vacate the district court's July 14, 2008 dismissal order, however, with instructions to dismiss Klos's complaint without prejudiceSee id. (explaining that a dismissal for lack of standing has the same effect as a dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) and thus is entered without prejudice).

VACATED AND REMANDED.

 1 Because standing is a jurisdictional requirement we must address sua sponte, the government's failure to raise the standing issue in the district court does not impede our ability to consider the issue for the first time on appeal. See Region 8 Forest ServTimber Purchasers Council VAlcock, 993 F.2d 800, 807 n.9 (11 th Cir. 1993). "[W]hen standing is questioned for the first time by an appellate court, standing must affirmatively appear in the record. ", Idat 806 (quotation marks omitted). In response to the government's standing argument, Klos did not move to supplement the record or amend his complaint (or even contend that he has standing). Thus, the only allegations of standing in the record are found in Klos's complaint.





UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________

Appeal Number: 08-14645-C
____________________

STANLEY KLOS,
Plaintiff, Appellant

v.

HENRY M. PAULSON, JR., in his capacity
as Secretary of the Treasury,
Defendant., Appellee


_____________________________________________

On Appeal from the United States District Court for the
Middle District of Florida,

 
CASE NUMBER:  8:08-cv-00843-SDM- TBM

 
The Honorable Steven Merryday, Judge, Presiding
_____________________________________________




Stanley L. Klos, Appellant Pro Se
Suite 211
687 Alderman Road
Palm Harbor, Florida 34683




A.  CERTIFICATE OF INTERESTED PERSONS
Appellant files this Certificate of Interested Persons and Corporate Disclosure Statement, listing the parties and entities interested in this appeal, as required by Eleventh Circuit Rule 26.1-1:


Henry M. Paulson, IN HIS CAPACITY as Secretary Of The Treasury

Michael B. Mukasey, IN HIS CAPACITY as Attorney General of the United States

Huey-Ling Nie, IN HIS CAPACITY as Director of the United States Mint 

Honorable Steven D. Merryday, United States District Judge

Jennifer W. Corinis, Assistant United States Attorney of Counsel, for Huey-Ling Nie, United States Mint Director and Henry M. Paulson, Secretary Of The Treasury.

Stanley L. Klos, Appellant, Pro Se

No Corporations




s/        _________________
     
Stanley L. Klos, Pro Se
Suite 211
687 Alderman Road
Palm Harbor, Florida



 

B.  STATEMENT REGARDING ORAL ARGUMENT

The Appellant submits that oral argument would be helpful and the decisional process would be significantly aided by its allowance. This request is made pursuant to Fed R. App. P. 34(c) and 11th Cir. R. 28-2(c).

C. TABLE OF CONTENTS

A.  CERTIFICATE OF INTERESTED PERSONS                    2
B.  STATEMENT REGARDING ORAL ARGUMENT                        3
C.  TABLE OF CONTENTS                                                    3
D.  TABLE OF AUTHORITIES                                                           4
E.  JURISDICTIONAL STATEMENT                                     5
F.  STATEMENT OF ISSUES PRESENTED FOR REVIEW    5
G.  STATEMENT OF THE CASE                                            7
H.  STATEMENT OF FACTS RELEVANT TO THE ISSUES SUBMITTED FOR REVIEW                                                    10

I.  SUMMARY OF ARGUMENT                                             20
J.  ARGUMENT                                                                      23
K.  CONCLUSION                                                                  50
L.  SIGNATURE OF COUNSEL                                              n/a
M.  CERTIFICATE OF SERVICE                                            52
N. RECORD OF EXCERPTS                                                        54
N.  CERTIFICATE OF COMPLIANCE                                                 56

 

D.  TABLE OF AUTHORITIES

CASES:

Carey v. Local Board No. 2, 297 F. Supp. 252, 254 (D. Conn. 1969) - pages 21, 47

Davis, Lashonda D. V. Monroe County Board Of Education Et Al.,Certiorari To The United States Court Of Appeals For The Eleventh Circuit, Supreme Court of the United States, No. 97 – 843. – pages 27 and 28

Keene Corp. V. United States, certiorari to the United States Court of Appeals for the federal circuit, Supreme Court: No. 92-166 - page 27

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163 - page 23

Martinez v. Dunlop, 411 F. Supp. 5, 9 (N.D. Cal. 1976)  - pages 21, 47

Teal v. Eagle Fleet Inc., 933 F.2d 341, 347 (5th Cir. '1991) - page 28

Tellabs, Inc., Et Al. V. Makor Issues & Rights, Ltd., et al. Supreme Court of the United States, No. 06–48 – pages 24, 27

White v. Matthews, 420 F. Supp. 882, 888 (D.S.D. 1976) - pages 21, 47


STATUTES AND TREATISES

12 James Wm. Moore et al, Moore's Federal Practice § 59.30  - page 28

28 U.S.C. §  Sections 1361, 1331, and 2201.   pages 5, 7, 21 and 26

28 U.S.C. § Section 1391(e).   page  5

50 States Commemorative Coin Program Act, (Public Law 105-124 …)  pages 16 and 18

An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio   page 36

Articles of Confederation, Constitution of 1777 - pages 11, 14, 15, 35, 38

Constitution of 1787 United States of America – pages 14, 20, 24, 27, 32, 33, 34, 52

Public Law 109-145, the Presidential $1 Coin Act of 2005 (the “Presidential Coin Act”) 1 U.S.C. § Section 5112 - pages 7, 11, 21, 22, 24, 31, 31, 33, 34, 35, 41, 42

Rule 60(b), Federal Rules of Civil Procedure (1), for relief.  - pages 6 and 8

Rule Civil Procedure 12(b) (6) motion to dismiss a §10(b) action – page 23


TO THE HONORABLE UNITED STATES COURT OF APPEALS:

E.  JURISDICTIONAL STATEMENT

The United States Court Of Appeals for the Fifth Circuit has jurisdiction over the appeal.  The 11th District Court of Middle Florida has subject matter jurisdiction over this action pursuant to 28 U.S.C.  Sections 1361, 1331, and 2201.  Venue was proper in this Middle District of Florida pursuant to 28 U.S.C. Section 1391(e).

F.  STATEMENT OF ISSUES PRESENTED FOR REVIEW


1.  Whether the district court erred in refusing to hear and dismissing the Appellant’s writ of mandamus with prejudice.

2. Whether the district court erred in ruling the Motion for Reconsideration as a motion pursuant to Rule 60(b), Federal Rules of Civil Procedure (1), for relief. 

3.  Whether the appeals court should order the judiciary to interpret the meaning of the term “president” in the Presidential Coin Act before determining whether mandamus will lie.  

G.
  STATEMENT OF THE CASE

1.  NATURE OF THE CASE
The threshold issue is whether the district court abused its discretion in dismissing this case that involves claims for declaratory and mandamus relief against the Secretary of the Treasury, pursuant to 28 U.S.C. Sections 2201 and 1361.  Specifically, Appellant sought the entry of an order compelling the Secretary of the Treasury to comply with the requirements of the Presidential $1 Coin Act of 2005 (the “Presidential Coin Act”), 31 U.S.C. Section 5112, by minting coins bearing the images of Presidents Samuel Huntington, Thomas McKean, John Hanson, Elias Boudinot, Thomas Mifflin, Richard Henry Lee, John Hancock, Nathaniel Gorham, Arthur St. Clair and Cyrus Griffin (collectively, the “Constitution of 1777 Presidents”).   The District Court, despite numerous directives  in the Presidential Coin Act  to mint coins for ALL of the deceased U.S. Presidents, wrongly decided the Constitution of 1777 Presidents where excluded from the Act as the bill stated “…beginning with President George Washington…” which, because of the Court’s understanding of U.S. History  and the evolution of the U.S. Presidency, was wrongfully ordered that this sole clause meant that the “Coin Act neither requires nor authorizes the Secretary to issue a coin bearing the image of each “Constitution of 1777 President” (ER Tab 8:08-cv-00843-SDM-TBM , 07/14/2008 Order pages 3 and 4)  dismissing the complaint with prejudice.
The second issue is whether the district court erred in ruling the Appellant’s “Motion for Reconsideration"   as a motion pursuant to Rule 60(b), Federal Rules of Civil Procedure (1), for relief.


2.      COURSE OF THE PROCEEDINGS AND DISPOSITION BELOW

05/01/2008 Stanley L. Klos was plaintiff in one lawsuit against defendant, HENRY M. PAULSON, JR., in his capacity as United States Secretary of the Treasury.  The Complaint seeking the Court to compel the Secretary of the Treasury to comply with the requirements of the Presidential $1 Coin Act of 2005 was filed on May 1, 2008.

5/5/2008  A NOTICE of designation under Local Rule 3.05 - track 1, Signed by deputy clerk on 5/5/2008.

06/19/2008 Submitted Motion to Dismiss by JENNIFER W. CORINIS, Assistant United States Attorney for Secretary Paulson.

7/07/2008 RESPONSE to motion re: MOTION to dismiss Complaint filed by Stanley L. Klos.

7/14/2008 ORDER granting --motion to dismiss; dismissing action; directing the Clerk to TERMINATE any pending motion and CLOSE the case, Signed by Judge Steven D. Merryday.

07/21/2008 Regular Mail Submission for reconsideration re: Order on motion to dismiss by Stanley L. Klos

08/01/2008 Resubmitted MOTION for reconsideration re: Order on motion to dismiss by Stanley L. Klos.

8/12/2008 ORDER denying --motion for reconsideration, Signed by Judge Steven D. Merryday.

08/13/2008 Submitted Appeal of:  ORDER:  DISMISSED WITH PREJUDICE for failure to state a claim on which relief can be ORDERED in Tampa, Florida, on July 14, 2008.    

08/12/2008 - ORDER:  Denying the “Motion for Reconsideration" construed by the Court as a motion pursuant to Rule 60(b), Federal Rules of Civil Procedure ORDERED in Tampa, Florida, on August 12, 2008.  

H.
  STATEMENT OF FACTS RELEVANT TO THE ISSUES SUBMITTED FOR REVIEW


Stanley L. Klos, the Appellant, resides in Pinellas County, Florida with four of his eight children. Three of the children residing with Mr. Klos are minor.  Klos is a historian, author, entrepreneur, and former Italian basketball player. He was the Republican Nominee who challenged Robert C. Byrd running for the United States Senate in 1994. Klos is an exhibitor and researcher of rare historical documents specializing in the 1774 – 1789 founding period of the United States.  He has written numerous publications and assembled exhibits that have headlined a plethora of universities, national historic sites, libraries, museums and special events.[1] Most recently, he was invited to exhibit at both the DNC and RNC political convention venues. [2] He has keynoted historical events including the Franklin D. Roosevelt American Heritage Center Museum Grand Opening and the 2003 re-entombment of Martha and Samuel Huntington[3] who were the First Lady and First President of the United States under the Constitution of 1777. Stan’s work has appeared in hundreds of print and digital publications including U.S. News & World Report 2006 cover story, Washington? Get In Line" and the Discovery Channels Unsolved History: Plots To Kill Lincoln.    The Appellant brought about this complaint due to the 2005 Presidential Coin Act its damaging effects on his children, the children of the United States, his business and the citizenry’s understanding the of the founding and legal evolution of the U.S. Presidency. 

Henry M. Paulson, Jr., is United States Secretary of the Treasury, and in that capacity the  Defendant in this complaint and is obliged by Public Law 109-145 “to mint coins in commemoration of each of the Nation's past Presidents and their spouses.”

“Public Law 109-145, the Presidential $1 Coin Act of 2005 (the “Presidential Coin Act”).  Is “An Act To require the Secretary of the Treasury to mint coins in commemoration of each of the Nation's past Presidents and their spouses, respectively, to improve circulation of the $1 coin, to create a new bullion coin.”

FACT: The Articles of Confederation were a thirteen state ratified federal constitution forming a “Perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia” with the “Stile of this Confederacy” being “The United States of America” [4]  passed on November 15, 1777, hence the name Constitution of 1777.

FACT: The U.S. Founders’ viewed the Articles of Confederation as a federal constitution. The words federal constitution were exhaustively used in pre-1787 Constitution United States resolutions - That if therefore individual states undertake, without the previous warrant of Congress, to dispense any part of moneys required for and appropriated to the payment of the army, or any other purposes of the union, the federal constitution must be so far infringed[5]  United States treaties - "That these United States be considered in all such treaties, and in every case arising under them, as one nation, upon the principles of the federal constitution"[6] United States Finances – “The federal constitution authorizes the United States to obtain money by three means; 1st. by requisition; 2d., by loan; and 3d., by emitting bills of credit.”[7] and in United States Delegate debates:

“A requisition of Congress on the States for money is as much a law to them as their revenue Acts when passed are laws to their respective Citizens. If, for want of the faculty or means of enforcing a requisition, the law of Congress proves inefficient, does it not follow that in order to fulfill the views of the federal constitution, such a change sd. be made as will render it efficient? Without such efficiency the end of this Constitution, which is to preserve order and justice among the members of the Union, must fail; as without a like efficiency would the end of State Constitutions, wch. is to preserve like order & justice among its members.” [8]

Founding laws also included a resolution empowering the President of the United States to reconvene the “federal government” in New Jersey after the United States, in Congress Assembled fled to Princeton after being “held hostage” by its own military in Philadelphia:

“There is not a satisfactory ground for expecting adequate and prompt exertions of this State for supporting the dignity of the federal government, the President … be authorized and directed to summon the members of Congress to meet on Thursday next at Trenton or Princeton, in New Jersey.” [9]


On a final fact regarding this matter of the Articles of Confederation being the first “federal constitution” of the United States of America,  I ask that the Honorable Court consider the legislation that led to the second “federal constitution” of the United States from which, they draw the authority and hear this case.

In the summer of 1786, President of the United States Nathaniel Gorham’s home state of Massachusetts had erupted into rebellion and the nation had no money in its coffers to raise troops to put down Shay’s armed insurrection.  In November of 1786, the congressional and U.S. Presidential terms expired; and the newly elected delegates could not form a quorum to elect a new President and continue the business of the United States. All throughout December and then January 1787 the delegates failed to form a quorum.  War reparations and debt were crushing the economy while the Constitution of 1777 failed dismally in organizing the thirteen states into an effective federal government.   Finally on February 2, 1787, the United States, in Congress Assembled formed the constitutional quorum and elected President Arthur St. Clair whose first major legislative act was to pass:

Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several States be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the States render the federal Constitution adequate to the exigencies of Government and the preservation of the Union. [10] 

The record is abundantly clear, even in the resolution that led to the Philadelphia Convention, that there was a federal constitution before the United StatesConstitution of 1787, the Articles of Confederation and the “Perpetual Union.”

FACT: Article IX of the Constitution of 1777 states that the Delegates of the United States, in Congress Assembled are “to appoint one of their members to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years.”[11] It formed was presided over by theConstitution of 1777 Presidents.  These Presidents and the Commander-in-Chief actively waged a war, convened in eight different capitol cities/towns (Exhibit A) and forged one independent nation “stiled” the “United States of America.”

FACT: On March 1, 1781 the last state, Maryland, reported their ratification to the Continental Congress which enacted the Constitution of 1777 dissolving their body and replacing it with the unicameral entity called the United States, in Congress Assembled[12] (Exhibit B).


FACT: On March 2, 1781 the Journals of the Continental Congress were changed to the Journals of the United States, in Congress Assembled and Samuel Huntington was recorded as the new federal government’s President (Exhibit C).[13]

FACT: Nine Presidents of the United States, in Congress Assembled followed Samuel Huntington: Thomas McKean,[14] John Hanson,[15] Elias Boudinot,[16] Thomas Mifflin,[17] Richard Henry Lee,[18] John Hancock,[19] Nathaniel Gorham,[20] Arthur St. Clair[21] and Cyrus Griffin[22] (collectively, the“Constitution of 1777 Presidents”).

FACT: Each of the ten Presidents had spouses and their names in order of their husband’s service are:  Martha Devotion Huntington, Mary Borden Sarah Armitage McKean, Jane Contee Hanson, Annis Stockton Boudinot, Sarah Morris Mifflin, Elizabeth Eskridge Lee, Dolly Quincey Hancock, Rebecca Call Gorham, Phoebe Bayard St. Clair, and Lady Christine Stewart Griffin.[23] 

FACT: Virginia, not Delaware, was the first state to ratify the Constitution of 1777 conflicting with the Secretary of the Treasury’s interpretation of the 50 States Commemorative Coin Program Act direction; “selected in the order in which such States ratifies the Constitution of the United States.”  The correct ratification order of the Constitution of the United States that created its “Perpetual Union” is:

US Statehood Order [24]
Articles of Confederation - 1 to 13 States
US Constitution - 37 to 50 States

State
State Passes
Reported to


Ratification
Congress
1
 Virginia
16 December 1777
25 June 1778
2
 South Carolina
5 February 1778
25 June 1778
3
 New York
6 February 1778
23 June 1778
4
 Rhode Island
16 February 1778
23 June 1778
5
 Georgia
26 February 1778
25 June 1778
6
 Connecticut
27 February 1778
23 June 1778
7
 New Hampshire
4 March 1778
23 June 1778
8
 Pennsylvania
5 March 1778
25 June 1778
9
 Massachusetts
10 March 1778
23 June 1778
10
 North Carolina
24 April 1778
25 June 1778
11
 New Jersey
20 November 1778
25-26 Nov. 1778
12
 Delaware
1 February 1779
16 February 1779
13
 Maryland
2 February 1781
12 February 1781

The Appellant did try to rectify this error concerning state order as interpreted by the Treasury in the State Quarter legislation.  In 2002, after numerous letters challenging the State Quarter Program touting Delaware as being the “First State” the Treasury wrote the Appellant a letter (Exhibit D).   The Treasury, argued that they were correct in their minting order as the 50 State Quarter Act was “enacted by the Senate and House of Representatives of the United States of America in Congress assembled”[25] and stated that:


50 States Commemorative Coin Program Act (Public Law 105-124 …) directs the Secretary of the Treasury to issue quarter dollar coins that shall have designs on the reverse side that are emblematic of the 50 States.  The Act also states:   “(3) ISSUANCE OF COINS COMMEMORATING 5 STATES DURING EACH OF THE 10 YEARS -`(A) IN GENERAL- The designs for the quarter dollar coins issued during each year of the 10-year period referred to in paragraph (1) shall be emblematic of 5 States selected in the order in which such States ratified the Constitution of the United States or were admitted into the Union, as the case may be. [26]

After review of their letter, the Appellant realized that the Treasury and perhaps even Congress did not understand that the Articles of Confederation was the first federal U.S. Constitution.  The Appellant chose not to pursue this oversight of the Articles of Confederation as a federal constitution in the District Court as which state was first, Delaware or Virginia.  The Appellant deemed this historical error of not significant magnitude to harm his children, fellow U.S. Citizens or his rare document and exhibit businesses. The omitting of the Constitution of 1777 Presidents on U.S. $1.00 Coinage and the keeping of the error that the United States Presidency began with the Second U.S. Constitution is, however, quite a different matter. 

The final facts the Appellant brings in this section before the honorable court is first, the Articles of Confederation in Article II places a comma after states “not by this Confederation expressly delegated to the United States, in Congress assembled.” [27]  Second, the Senate and House of Representatives of the United States of America, as evidenced in both the State Quarter and Presidential Dollar Coin Acts, add “in Congress assembled” to their legislation. 

The point is that the people of the United States do not refer to the Honorable Nancy P. D. Pelosi as the Speaker of the House of Representatives of the United States of America in Congress Assembled but as the Speaker of the United States House of Representatives. The people do not refer to her as the Speaker of United States in Congress Assembled House of Representatives but as the Speaker of the United States House of Representatives. 

Likewise, the people do not refer to the Honorable Richard B. Cheney, in his legislative capacity, as the President of the Senate of the United States of America in Congress Assembled but as the President of the Senate of the United States of America.  The people do not refer to him as the President of the United States in Congress Assembled Senate but as the President of the United States Senate. 

Consequently, Samuel Huntington and the other nine men holding the office of Presidents of the United States in Congress Assembled were often refereed to as Presidents of the United States as well as Presidents of Congress in the unicameral federal government.   In the current tri-parte system the U.S. House and U.S. Senate in the legislative branch, the Supreme Court in the judicial branch and the President /Commander-in-Chief in the executive branch form the government of the United States of America.  Under the first constitution, the United States in Congress Assembled, in its unicameral structure, formed the government of the United States of America. 


I.  SUMMARY OF ARGUMENT

The entire core of this case is that the current Congress and sitting President of the United States enacted a $1.00 Coin program honoring “each of the Nation's past Presidents” of the United States and their spouses thereby including the Constitution of 1777 Presidents.  The case that these Constitution of 1777 Presidents were Presidents of the United States and rightfully should be so honored as per the language of the “Presidential Coin Act” merits a hearing and oral argument before the 11thDistrict Court of Appeals, a judiciary that derives its very existence from the second United States Constitution forged by these men from failed political systems spanning 15 years.

The Defendant was granted an unhappy resolution of the pivotal issue in this case, interpretation of the term “president” within the meaning of the Presidential Coin Act, by the District Court ordering a motion to dismiss stating:   


“Because the Coin Act neither requires nor authorizes the Secretary to issue a coin bearing the image of each “Constitution of 1777 President” the complaints asserts no cognizable right to relief under 28 U.S.C. § 1361 and declaratory relief 28 U.S.C. §2201 is appropriate.” (ER Tab 8:08-cv-00843-SDM-TBM , 07/14/2008 Order pages 3 and 4)


The District Court erred as it failed to interpret the meaning of the term “president” in the Presidential Coin Act before it determined whether mandamus would lie by merely relying on the clause “in the order of the period of service of each President, beginning with President George Washington.” (ER Tab 8:08-cv-00843-SDM-TBM , 07/14/2008 Order pages 3).  Additionally, this issue was determined in the context of a motion to dismiss by the District Court noting the defendant’s insistence that theConstitution of 1777 Presidents were not “Chief Executives.”


The Appellant maintains that the term “Chief Executive” doesn’t appear anywhere in the Coin Act and, therefore, the inference made by the Treasury and embraced by the District Court as a proof supporting its decision to dismiss this case with prejudice is wrong.  Additionally, the only portion of the Bill that supports the treasury contention that these men were to be excluded as Presidents of the United States as defined in the Act itself is the phrase referring to the minting of $1 Coins “beginning with President George Washington.”   


The Appellant sees this “beginning with President George Washington”   clause as not conflicting with the Appellant’s request for relief, namely ordering the Secretary of the Treasury to include the Constitution of 1777 Presidents into the $1.00 Coin minting.  Additionally, supporting the Appellant’s case is that the legislation was ultimately designed to correct the fact that “Many people cannot name all of the Presidents, and fewer can name the spouses, nor can many people accurately place each President in the proper time period of American history.” (Public Law 109-145  SEC 101 Findings (8) ). Since George Washington was both a President and Commander-in-Chief and the Coin Act’s language   “beginning with President George Washington” places him in the proper lineage of history at the head of the Constitution of 1777 Presidents.


George Washington was not only the first President under the 1787 Constitution of the United States (1789 to present) but he was also the first Commander-in-Chief (1775 to 1783) of the United Colonies of America under the 1774 Articles of Association as well as the First Commander-in-Chief under the Constitution of 1777.  The Constitution of 1787 added melded this office into the Presidency of the United States:


“The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.  that is part of the current presidential office Congress seeks to so honor.”[28]

It is therefore proper, especially under the Constitution that melded both offices, to begin with the minting of the $1.00 Coins with George Washington.


J.  ARGUMENT

1.  Whether the district court erred in refusing to hear and dismissing the Appellant’s writ of mandamus with prejudice.

First, faced with a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss a §10(b) action, courts must, as with any motion to dismiss for failure to plead a claim on which relief can be granted, accept all factual allegations in the complaint as trueSee Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163.

Second, courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b) (6) motions. “The inquiry is whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard as in the case of the District Court’s isolation and then interpretation of the clause “… beginning with President George Washington.”. - TELLABS, INC., et al. v. MAKOR ISSUES & RIGHTS, LTD., et al. Supreme Court of the United States, No. 06–484. Decided June 21, 2007

Third, in determining whether the pleaded facts give rise to a “strong” case for dismissal in favor of the defendant, “the court must take into account plausible opposing facts.” TELLABS, INC., et al. v. MAKOR ISSUES & RIGHTS, LTD., The Eleventh Circuit expressly declined to engage in such a comparative inquiry. But in Public Law 109-145, the Presidential $1 Coin Act of 2005, Congress did not merely require the defendant to mint Presidential $1.00 coins beginning with  President George Washington but there was a toallege of such minting requirements that unquestionably include all US Presidents and their spouses:

The title of the Act itself States: “An Act To require the Secretary of the Treasury to mint coins in commemoration of each of the Nation's past Presidents and their spouses, respectively, to improve circulation of the $1 coin, to create a new bullion coin.”


Section 4 (A) of the Act states: “In general. --The designs for the $1 coins  issued during each year of the period referred to in  paragraph (1) shall be emblematic of 4 Presidents until each President has been so honored.” 


3(A) of the Act states:  “Coin obverse. --The design on the obverse shall contain--``(i) the name and likeness of a President of the United States; and ``(ii) basic information about the President, including--``(I) the dates or years of the term of office of such President; and ``(II) a number indicating the order  of the period of service in which the President served.”  


 3B ii of the Act States:  “NONCONSECUTIVE TERMS - If a President has served during 2 or more nonconsecutive periods of service, a coin shall be issued under this subsection for each such nonconsecutive period of service.”


Section 8 of the Coin Act Bill states:  “Termination of program. -- The issuance of coins under this subsection shall terminate when each President has been so honored, subject to paragraph (2) (E), and may not be resumed except by an Act of Congress.”


To determine whether the plaintiff has alleged facts giving rise to the requisite “strong inference,” a court must consider not only the above facts but plausible, nonculpable explanations, (i.e. George Washington being selected as the first coin as he was a President of the United States and in from 1775 to 1783 the first Commander-in-Chief of the United Colonies and States of America which is, by most historians account, the more important office in the executive branch created by the Constitution of 1787) as well as inferences favoring the plaintiff.

In this case, the Eleventh District Court failed to do its duty to hear the complaint and then interpret the meaning of the term “president” in the Presidential Coin Act before it determined whether or not mandamus was applicable.  Instead the Court utilized one clause in the Coin Act to avoid addressing the merits of the Writ of Mandamus:


The Coin Act’s requirement that the coins be issued “in the order of the period of service of each President, beginning with President George Washington” strongly supports the defendant’s contention, and the plaintiff offers no convincing argument, explanation, or citation of authority to support a contrary interpretation of the statute. Because the Coin Act neither requires nor authorizes the Secretary to issue a coin bearing the image of each “Constitution of 1777 President,” the complaint asserts no cognizable right to relief under 28 U.S.C. § 1361 and declaratory relief under 28 U.S.C.§ 2201 is inappropriate  (ER Tab 8:08-cv-00843-SDM-TBM , 07/14/2008 Order pages 3 and 4) . 
.

This issue, a requirement that the coins are to be issued “in the order of the period of service of each President, beginning with President George Washington” is not the only language in the act that could be argued relieves the Secretary of the Treasury from the duty “to mint coins in commemoration of each of the Nation's past Presidents and their spouses.”   Whether George Washington first Commander-in-Chief status met the meaning of “beginning with President George Washington” was not even considered in the context of the District Court granting the motion to dismiss. This clause, in the Commander-in-Chief context, required consideration as this was an office held by George Washington before the Constitution of 1777 Presidents. The fact that the Appellant’s writ of mandamus was dismissed with prejudice on this clause and some inference made that the Constitution of 1777 Presidents were not true Chief Executives is in error.  Even in the specious, singular context of this five-letter clause the Appellant’s case was more than merely “reasonable” or “permissible,” but it was cogent and compelling and strong in light of other explanations.   It should not have been dismissed.


Fourth: This complaint should survive and the Order of Dismissal overturned as a reasonable person would deem the inference of plaintiff cogent and at least as compelling as any plausible opposing inference, “beginning with President George Washington” one could draw from the facts alleged.  -- TELLABS, INC., et al. v. MAKOR ISSUES & RIGHTS, LTD., et al. 


Fifth: This complaint should survive and the Order of Dismissal overturned as the District Court cannot say beyond doubt that the Appellant “can prove no set of facts that would entitle” the Constitution of 1777 Presidents and their spouses to be included in the Coin Act of 2005. - Davis, as next friend of Lashonda D. V. Monroe County Board Of Education Et Al.,Certiorari To The United States Court Of Appeals For The Eleventh Circuit,  Supreme Court Of The United States, No. 97—843. Argued January 12, 1999–Decided May 24, 1999


Sixth: This complaint should survive and the Order of Dismissal overturned as the Coin Act does not state even one name clearly defining the order of Presidential coins after George Washington. “This fact only underscores the Court's duty to refrain from reading into the statute a phrase that Congress has left out – (ie John Adams, Thomas Jefferson … or Samuel Huntington, Thomas McKean …). The Court and Defendant’s  reasoning “is no more availing, since Congress expressed no clear intent”  that permit the defendant to discount the numerous requirements in the Act to mint coins of each of the Presidents and their spouses and dismiss this Writ of Mandamus.  Keene Corp. V. United States, certiorari to the united states court of appeals for the federal circuit, Supreme Court: No. 92-166. Argued March 23, 1993, Decided May 24, 1993.


Seventh: This complaint should survive and the Order of Dismissal be overturned as the District “Court cannot say beyond doubt that” Mr. Klos “can prove no set of facts that would entitle him to relief.”  On the contrary, the Appellant illuminated more then a reasonable doubt on the “beginning with President George Washington” clause which was the District Court core reason for dismissing the Writ of Mandamus against the Secretary of the Treasury.  Davis, As Next Friend Of Lashonda D. V. Monroe County Board Of Education Et Al., Certiorari To The United States Court Of Appeals For The Eleventh Circuit, Supreme Court Of The United States, No. 97—843. Decided May 24, 1999.


2.  Whether the district court erred in ruling the Motion for Reconsideration as a motion pursuant to Rule 60(b), Federal Rules of Civil Procedure (1), for relief.  


The district court held that the Appellant failed to file his motion for reconsideration within the prescribed ten-day period; therefore, the Court denied said motion deeming it a motion for relief:


Teal v. Eagle Fleet Inc., 933 F.2d 341, 347 (5th Cir. '1991); '12 James Wm. Moore et al, Moore's Federal Practice § 59.30 (A motion for reconsideration filed more than 10 days after entry of judgment is treated as a motion seeking relief from judgment under Rule 60(b},").


The District Court issued their ruling on July 14, 2008 and notified the defendant by electronic mail on said date.  On July 14, 2008 the Appellant attempted to retrieve the order electronically.  The system permitted access, the pdf of the order appeared on the screen; and when the Appellant went to print the order, he was kicked off the electronic website.  The Appellant was not granted access to the site again receiving the order via email from the Tampa Tribune who sought his comments.  The Clerk did not return his calls.


Despite this, the Appellant drafted a Motion for Reconsideration from the order submitted to him by the Press. The motion was completed and the Appellant attempted to submit it electronically but was denied access.  The motion was mailed on July 22, 2008, from Palm Harbor, Florida to Clerk of the District Court in Tampa, Florida, along with the certificate of service of motion to the defendant’s numerous parties who also received a copy of the motion to reconsider.  The District Court never responded to the USPS mailed motion, nor did the Court mail the Appellant a copy of the July 14th, 2008 order. 


On August 1st, 2008, the Appellant drove to the Clerk of the District Court’s office to get an official copy of the July 14th order, find out why the Appellant was banned from the electronically filing the Motion to Reconsider, why no order was sent and why there had been no communication from the Clerk.  He was told that once a case is closed, Pro Se parties immediately loose access to the electronic filing system.  The Assistant Clerk didn’t know why his calls were not returned and found that the Appellant’s Motion for Reconsideration was not filed.  The Appellant was then told the processing clerk on this matter was on vacation and that he could file the copy of his motion of reconsideration that he had presented to  the clerk from his file.  The Appellant took the copy, added an original signature and filed on the 1st of August.  He requested the vacationing clerk call him about the non-filed July 21st Motion for Reconsideration.  No call was ever received.


The Appellant maintains that the Clerk of the District Court erred in the timely filing of the Motion to reconsider and that he met the 10 day required filing period. 


3. Whether the appeals court should order the judiciary to interpret the meaning of the term “president” in the Presidential Coin Act before determining whether mandamus will lie.  


Point #1:  “The coins issued under this subsection commemorating Presidents of the United States shall be issued in the order of the period of service of each President, beginning with President George Washington.” 


There is no question that the first $1.00 coin should start with President George Washington.  George Washington was not only the first President under the 1787 Constitution of the United States but he was also the only Commander-in-Chief of the United Colonies of America under the 1774 Articles of Association as well as the First Commander-in-Chief under the Constitution of 1777  (See Exhibit E). [29]  The Constitution of 1787 combined both of the offices of Commander-in-Chief and U.S. President. The Constitution of 1777, however, recognized the separation of the two offices until December 23, 1783 when Commander-in-Chief Washington resigned his office to President of the United States Thomas Mifflin[30] (Exhibit F), a former Revolutionary War Major General. 


It is therefore prudent in that the Act start the minting of the coins with President Washington as the first Commander-in-Chief as well as issue a second coin for the“Father of Our Country” as President/Commander-in-Chief as per 3B ii of the Bill “NONCONSECUTIVE TERMS - If a President has served during 2 or morenonconsecutive periods of service, a coin shall be issued under this subsection for each such nonconsecutive period of service.” In short, George Washington served in two nonconsecutive terms as Commander-in-Chief which, the Constitution of 1787 defines, and what many historians argue, is the most important executive duty of the U.S. Presidency as well as the co-title for the current executive branch of the United States of America.[31] 


It is the Appellant’s contention that after the minting George Washington’s Commander-in-Chief Presidential Coin (Service from 1775-1783 – see Exhibit G) the Secretary should have moved on to minting the coins of the Constitution of 1777 Presidents (Exhibit H) until the minting of the 12th coin which would be for George Washington (Service from 1789 to 1797) as the President and Commander-in-Chief under the Constitution of 1787. 


The Appellant maintains that the language “beginning with President George Washington” in this Act, therefore, in no way precludes the Secretary of the Treasury from issuing coins for Constitution of 1777 Presidents. In fact, with the phrase “beginning with President George Washington” now understood in its proper historical context, the remaining language in the Act requires the Secretary of the Treasury to mint dollar coins for all Constitution of 1777and 1787 Presidents.


 Point #2:  “The "Constitution of 1777 Presidents" are Presidents of the United States within the meaning of the Act and the Act does provide for the inclusion of such individuals in the coin program.”


           The 2005 Coin Act  Section 5112 of title 31, United States Code, (n)  states that the “Redesign and Issuance of Circulating $1 Coins Honoring Each of the Presidents of the United States”.   This verbiage is clear and does not, in any way, omit the Constitution of 1777 Presidents.  Additionally, the Act continues with more language requiring each President be so honored with a $1.00 Coin. Section 4 (A) of the Act states, “In general. --The designs for the $1 coins  issued during each year of the period referred to in  paragraph (1) shall be emblematic of 4 Presidents until each President has been so honored.”   The Bill also States in 3(A) “Coin obverse. --The design on the obverse shall contain--``(i) the name and likeness of a President of the United States; and ``(ii) basic information about the President, including--``(I) the dates or years of the term of office of such President; and ``(II) a number indicating the order  of the period of service in which the President served.” 


More importantly, nowhere in the Bill does the law preclude the honoring of the Constitution of 1777 Presidents.  The Defendant’s position that “The historical contentions set forth by the Plaintiff in his Complaint as to whether the Constitution of 1777 Presidents served in the same capacity as President George Washington and his successors are immaterial in this matter” is fallacious as it was never alleged that the office had the same capacity.  Additionally, the fact that these Constitutions of 1777 Presidents are or are not Presidents of the United States is at the very core of this case. 


            If these men were deemed Presidents of the United States by the Court then  by the language of this bill, they should be so honored along with their spouses Martha Devotion Huntington, Mary Borden Sarah Armitage McKean, Jane Contee Hanson, Annis Stockton Boudinot, Sarah Morris Mifflin, Elizabeth Eskridge Lee, Dolly Quincey Hancock, Rebecca Call Gorham, Phoebe Bayard St. Clair, and Lady Christine Stewart Griffin as the title of the Act itself States: “An Act To require the Secretary of the Treasury to mint coins in commemoration of each of the Nation's past Presidents and their spouses, respectively, to improve circulation of the $1 coin, to create a new bullion coin.” (Public Law 109-145, the Presidential $1 Coin Act of 2005 – Sec 103 (o) )


The minting of Constitution of 1777 Presidents coins is further supported by Section 8 of the Coin Act Bill stating – “Termination of program. -- The issuance of coins under this subsection shall terminate when each President has been so honored, subject to paragraph (2) (E), and may not be resumed except by an Act of Congress.” If the Court finds these men were not Presidents of the United then and only then is the Secretary of the Treasury released from his burden to mint Constitution of 1777 Presidents $1 Coins.


 Point #3:  The District Court writes in footnote 4 of it July 14th, 2008 order:


  An April 1, 2008, letter from Patrick M. McAfee, the Director of the “Office of $1 Coin Programs,” to the plaintiff (Doc. 1-4) plausibly explains why Congress excluded the “Constitution of 1777 Presidents”: although the “Constitution of 1777 Presidents” “were known as ‘Presidents of the United States in Congress Assembled,’” “[a] president in this role functioned exclusively under the sponsorship of, and in service to, the Congress. He was the presiding officer of Congress, chaired the Committee of the States . . . when Congress was in recess, and was responsible for other administrative duties. His role was not as a chief executive in the way the Presidents of the United States from George Washington to the present have been. 

Nowhere in the Coin Act does the Congress ever address the title or duties of Chief Executive to be a pre-requisite of minting the $1 Presidential coins.  Nowhere in the Coin Act does Congress provide any criteria to exclude the Constitution of 1777 Presidents.   Moreover, these Presidents utilized their office to exercise much influence on United States public affairs and legislation.   It is argued in this brief, and hopefully in oral argument, that in many instances the Constitution of 1777 Presidents exercised more potent federal powers then the Constitution of 1787 Presidents.

For example, under Article V of the Constitution of 1777, “In determining questions in the United States in Congress assembled, each State shall have one vote,”the Presidents were often the only delegate representing their entire State.[32] In  the unicameral Federal Government the President while presiding over Congress (much like today’s Speaker of the House) casted a vote for their State in quorums as small as seven enacting binding legislation. This means that the Constitution of 1777 Presidents’votes, while  chairing the unicameral Congress, more often represented not 1/13th but 1/12th to 1/7th off all ballots required to pass a law.  For example, one of the most important pieces of legislation ever to be enacted in the United States of America, the Northwest Ordinance, [33] only eight states were present during this bill’s passage.[34]

In the case of enacting legislation, is not the Constitution of 1777 Presidential office a more potent political position then that of President George W. Bush? In the case of the Coin Act, after two legislative houses, with 535 potential votes, labored for over a year to pass the bill under the Constitution of 1787 the President’s true power was limited to a veto. Which office was politically more powerful in enacting legislation?  Presiding over a unicameral government and having 1/7th to 1/13th of all votes required to pass a law or having  2/3rd’s veto power over a bill that may be declare unconstitutional by yet a third branch of government? 

The Constitution of 1777 Presidents performed legislative duties similar to the Speaker of the House but they had no 2nd legislative body to check their laws or an executive branch to veto their Bills. Moreover, since there was no executive or judicial branch the President often took on the duties of the Head of State and Supreme Court Justice. Who did Commander-in-Chief George Washington report to in the Confederation government?  After Washington resigned, who assumed the duties of Commander-in-Chief when incidents like Shays Rebellion or Northwest territorial military action occurred?   The speculation of why the current United States in Congress Assembled acted as they did is most interesting.  Under which case law are speculations for the actions utilized by the District Court to deny a hearing and dismiss such a historically important case with prejudice?  

To set the record straight, at least in the federal justice system, the Duties of the Constitution of 1777 Presidents of the United States included:

·         The Presidents had the power to call for the unicameral government’s assembly and adjournment.

·          The Presidents issued military orders (President John Hanson - September 7, 1782 Military directive to George Washington - Exhibit I,), signed military commissions, (President Samuel Huntington Exhibit J), President Elias Boudinot – Alexander Hamilton’ Commission Exhibit K,), Diplomatic Commissions (President Thomas McKean, September 7, 1781 Commission of Joseph de l” Etombe Exhibit L,), treaties (Thomas Mifflin – ratifying the 1783 Treaty of Paris Exhibit M ), proclamations (Cyrus Griffin – September 5, 1788, Cherokee Proclamation Exhibit N), and resolutions (as Richard Henry Lee - October 16, 1786 Ordinance Establishing the U.S. Mint Exhibit O).   

·         The Presidents received, read, answered, and at their own discre­tion held or disseminated the official state and foreign correspondence to the United States.

·         The President chaired the Committee of the States that governed the United States of America when the United States in Congress Assembled was not in session.[35]
·         They received both United States and foreign dignitaries when they arrived at the Capitol as the Head of State for the United States of America extending the nation’s official hospitality.[36]

·         The Presidents acted similar to Supreme Court Chief Justices presiding over cases such as Federal Court Appeals,[37] Death Penalty Appeals,[38] Military trials[39] and State boundary disputes.[40] 

As stated, despite the Treasury and the District Court’s inferences and findings, the powers that these men did or did not have as President of the United States, in Congress Assembled are not the issue of this Writ of Mandamus but for sake of avoiding yet a third dismissal the powers have been addressed.

What is at issue here is whether or not these Constitution of 1777 Presidents were Presidents of the United States.  To illustrate the merit of the position that they were indeed Presidents of the United States let’s examine the Colonial history of the United States and Great Britain.

King James I Jamestown Charter began the ultimate establishment of the 13 original states as colonies on May 14, 1607.[41] Four years prior to that date, QueenElizabeth I ruled as one of the most powerful monarchs in the history of western civilization.[42]  Elizabeth I has since been followed, 349 years later, by Queen Elizabeth II, who has limited authority when compared to boundless power of her predecessor, under what is seemingly an eternal revision of Great Britain’s de facto constitution. The duties and powers of the Crown – Queen in this case, have dramatically changed since Colonial America. These constitutional changes, however, do not connote thatElizabeth II is no longer a Queen of England. 

Conversely, the ten men who served as Presidents of the United States, in Congress Assembled under the Constitution of 1777 had duties quite different then the Constitution of 1787 Presidents.  Additionally, George Washington, the First Commander-in-Chief of the United States during the Revolutionary War reported toConstitution of 1777 Presidents of the United States[43]  who all had duties quite different then George Bush who currently serves as Commander-in-Chief over The United States’ War on Terror.   Is not George Bush Commander-in-Chief in a line that began in 1775 or do we to preclude that office under the Constitution of 1777 and limit the Commander-in-Chief line to 1789 - 2008?   Of course not since the Commander-in-Chief line began with George Washington in the Revolutionary War which concluded with the Treaty of Paris in 1783. 

Likewise, is not Samuel Huntington a President of the United States or must we accept the District Court’s interpretation of the Coin Act that the clause “beginning with President George Washington” starts the presidential line in 1789 duping the citizens of the United States that no Presidents of the United States served before George Washington.  This author, despite this horrendous historical inaccuracy on the very founding of the U.S. Presidency, would stand down had Congress not enacted such a misleading law.

The bill Congress enacted states over and over again that all deceased U.S. Presidents are to be issued a $1.00 coin.   If the Constitution of 1777 Presidents are deemed Presidents of the United States by this Court, and this Appellant has no doubt in that outcome should the dismissal be overturned, then Samuel Huntington, Thomas McKean, John Hanson, Elias Boudinot, Thomas Mifflin, Richard Henry Lee, John Hancock, Nathaniel Gorham, Arthur St. Clair and Cyrus Griffin as well as their spouses can be so ordered by the Court to take the rightful places on the $1.00 coins of the United States of America.

Point #5: Congress in SEC. 101 FINDINGS  states “…spouse has often set the social tone for the White House while spearheading and highlighting important issues for the country.”


If we follow the District Court’s July 14th, 2008 case law, dismissing this case on one isolated clause “beginning with President George Washington” then it stands to reason Martha Washington should not be included on the coinage.  It is true she is a spouse of President.  It is also true First Lady Washington spearheaded and highlighted important issues for the country including traveling with the Commander-in-Chief during the Revolutionary War organizing women’s groups to feed, mend and make clothing for the United States troops.   It is, however, incorrect that she set “… the social tone for the White House” as Abigail Adams was the first First Lady to occupy that historic structure.  There are more words in this clause then the later so should the District Court’s ruling be upheld this ambiguous language, plausibly, can be isolated and utilized in the case elimination Martha Washington’s coin.

More importantly, does the public know which First Lady truly “set the social tone for the White House? as well as honoring important guests at federal presidential functions?  It was actually the spouse of the 10th President of the United States under the Constitution of 1777 who set the social tone for the founding First Ladies. 

John Stuart, the Earl of Traquair had three daughters, the Lady Christina, the Lady Mary and the Lady Louisa. The Lady Christina was strikingly beautiful and her personality so magnetic that the handsome young Virginian, Cyrus Griffin couldn't resist making a bold, but private, declaration to win the Lady's heart while visiting his friend in Scotland. When the Earl learned of Cyrus' intentions, he immediately admonished his son Lord Linton for allowing this Virginia plebian to enter Traquair's noble gates. The Earl reportedly raved and ranted at the rest of his family, for not uncovering this mischief sooner as such a scandal threatened the social standing of his noble house. Cyrus was escorted off the estate becoming persona non grata in the House of Traquair.  The Earl forbade Christina from ever seeing Cyrus again and implemented estate security measures to end the love affair.

The courtship did not end, and it became real runaway months later through the forests, over hill and dale in a wild flight from Traquair on a spring day in 1770. In the escape, the Lady Christina fell and broke her ankle. Family legend has it that Cyrus, undetermined not to let the event spoil their passionate plans, scooped her up and carried his lover through the countryside not to a doctor but to a parson. The minister, despite their disheveled appearance and her swollen ankle, united them in the bonds of matrimony on April 29, 1770.[44] 

The couple took residence in London while Griffin completed his studies.  They returned to Virginia in 1776 with two children.  Twelve years later, with Lady Christina at his side in New York City Cyrus Griffin’s social status as President of the United States was second to none.  His office, English education and marriage to nobility solidified his status as the pinnacle in confederation society among the nation's leaders. Lady Christina’s state events held for foreign dignitaries, generals and heads of state were legendary set the social standards for presidential gatherings right down to the seating arrangements as evidenced in this final Broadside of the Confederation government hosting the inauguration ceremonies of George Washington in 1789:

 That a chair he placed in the Senate-Chamber for the President of the United Stares. That a chair be placed in the Senate-Chamber for the Vice-President, to the right of the President’s chair; and that the Senators take their seats on that side of the chamber on which the Vice-President’s chair shall be placed. That a chair be placed in the Senate-Chamber for the Speaker of the House of Representatives, to the left of the President’s chair—and that the Representatives take their seats on that side of the chamber on which the Speaker’s chair shall be placed.

 That seats be provided in the Senate-Chamber sufficient to accommodate the late President of the United States in Congress Assembled [Cyrus Griffin of Virginia], the Governor of the Western territory [Arthur St Clair], the five persons being the heads of the three great departments [Secretary of Foreign Affairs John Jay, Secretary of War Henry Knox, Commissioners of the Treasury Arthur Lee, Walter Livingston, and Samuel Osgood] … [45]
Is not this story pivotal to fulfilling Congress’ intent in constructing the Coin Act as far as First Ladies are concerned?
Point #6: Congress also states one of its 13 Coin Act findings (8) “Many people cannot name all of the Presidents, and fewer can name the spouses, nor can many people accurately place each President in the proper time period of American history”


If this is intent of the bill why does the Secretary argue founding Constitution of 1777 U.S. Presidents are excluded from the Act with so much as a hearing?    

The District Court writes:

“The plaintiff’s wish to correct what he regards as a widespread misconception about those who served the nation under the Articles of Confederation is laudable. However, the plaintiff’s remedy, if any, lies in the legislature (ER Tab 8:08-cv-00843-SDM-TBM , 07/14/2008 Order page 4).”


The Appellant thanks the District Court for acknowledging his motive for filing the complaint but believes a remedy for the Constitution of 1777 Presidents has already been provided by the legislature in The Coin Act of 2005. The Appellant requests is the opportunity to make a case that these men were Presidents of the United States ordering the Secretary of the Treasury to abide by “An Act To require the Secretary of the Treasury to mint coins in commemoration of each of the Nation's past Presidents and their spouses, respectively, to improve circulation of the $1 coin, to create a new bullion coin.”

            It should be noted that if it were not for Supreme Court Justice Oliver Ellsworth the language in the 2005 Presidential Coin Act would not ambiguous or be in need of judicial interpretation. It was Governor Edmund Randolph of Virginia who moved to re-name the United States, the “National Government”, in the Constitution of 1787’s Philadelphia Convention.

“Mr. R. wishes to have that resol. dissented to. The resol. postponed to take up the following: … 3. Resolved therefore that a national government ought to be established consisting of a supreme legislature, judiciary and executive.”[46]

For a month the delegates debated Randolph's motion of a tri-cameral division and the utilization of the phrase "National Government."  Oliver Ellsworth took an active part in the proceedings of the Philadelphia 1787 Convention and supported the concept of a tri-cameral federal system. He was adamantly adverse, however, to renaming the “United States America” to the “National Government.”   On June 20th he proposed the following amendment:

“Resolved that the government of the United States ought to consist of a Supreme Legislative, Judiciary, and Executive. On the question to agree to the amendment it passed unanimously in the affirmative.” [47]
From that point on the term United States replaced National Government. The words, "of America”, were added by Delegate Gouverneur Morris in the final editorial changes of the Constitution of 1787.[48] 

Had the Philadelphia Convention titled the nation, “The National Government of America”  then George Washington would have been “stiled,” rightfully, the first President of the National Government of America.  This was not the case, and George Washington shares that title President of the United States with Constitution of 1777 Presidents. 

The District Court wrongfully sought resolution of the pivotal issue in this case, by skirting the interpretation of the term “president” within the meaning of the Presidential Coin Act, by ordering the case closed on July 14, 2008.   “The fact that a duty becomes clear only after construction of a statute” does not mean that Appellant has not stated a claim for mandamus relief.  White v. Matthews, 420 F. Supp. 882, 888 (D.S.D. 1976).  See also Carey v. Local Board No. 2, 297 F. Supp. 252, 254 (D. Conn. 1969) (“The fact that a statute may require administrative or judicial construction in order to determine what duties it creates does not mean that mandamus is not proper to compel the officer to perform that duty once it is determined”); and Martinez v. Dunlop, 411 F. Supp. 5, 9 (N.D. Cal. 1976). 

To reiterate, the use of the words “in Congress Assembled” in the Coin Act which, are also found in the April Fool’s Day Treasury letter exemplifies the confusion surrounding the United States Presidency in the executive and legislative branches of government.    The record reports two state-ratified federal constitutions of the United States of America. The first, the Constitution of 1777, referred to as the “Articles of Confederation and Perpetual Union,”[49] and the second, is the current Constitution of 1787 referred to as “this Constitution for the United States of America.”[50] There was also a third form of central government known as the Continental Congress that operated under the 1774 Articles of Association. 


Unfortunately, these three separate forms of United Colonies and States central governments are rendered indistinct in countless historical works and in a plethora of official U.S. publications including the Biographical Directory of the United States Congress (BDUSC). This historical work, published by the Congress of the United States, presents the biographical information on the Delegates of the Continental Congress and the United States, in Congress Assembled in a form that morphs these two forms of government into one, calling both the Continental Congress.   Take, for example, the Directory’s listing of the Eighth President of the United States, in Congress Assembled, Nathaniel Gorham with the BDUSC reporting in part: “Member of the Continental Congress in 1782, 1783, 1786, 1787, and 1789, and was its president from June 6, 1786, to February 2, 1787” [51]
This listing adopts the verbiage 1774 Articles of Association while disregarding the language of the Constitution of 1777, “Articles of Confederation and Perpetual Union.”  As discussed above, there was a “Continental Congress” of the United Colonies and later the United States formed in 1774. [52]  The “Continental Congress,”however, was dissolved after the March 1, 1781 ratification of the Constitution of 1777 replacing it with the United States, in Congress Assembled. 


K. CONCLUSION

The Appellant respectfully requests the Court to interpret the meaning of the term “president” in the Presidential Coin Act and then determine where mandamus will lie.  This issue, legally and for the sake of these great founding men and women, cannot be determined in the context of a motion to dismiss.   The Court does have the authority to weigh the evidence and find that the omission of the Constitution of 1777 Presidents $1 Coins is in direct violation of the language incorporated in the 2005 Coin Act Bill.  The Court has the authority to order the Secretary of the Treasury to issue $1.00 coins for the Constitution of 1777 Presidents and their spouses. 


Additionally, the ambiguity in the both Coin Acts’ language is due, in part, to the complexity of the founding period.  If the Biographical Directory of the United States Congress editors are floundering in their reporting of this period, who then can set the record right if not the judiciary branch of government? At the very least, a proper hearing and ruling in this case, will result in future bills regarding U.S. Presidential History being properly drafted with precise language eliminating those who served as Presidents of the United States under the Articles of Confederation by the United States House and Senate in Congress Assembled if that was indeed their intention.  


It must be noted that former Pennsylvania Chief Justice did set the record straight in 1803 on the founding U.S. Presidency.  This signer of the Articles of Association, the Declaration of Independence and the Articles of Confederation referred to his service as a United States President in 1781 as the key reason for turning down his party’s request to run as Thomas Jefferson’s Vice President under the 12th Amendment’s provisions in the second U.S. Constitution.  Governor McKean wrote on October 16, 1803 to Pennsylvania Republican Party Founder Alexander J. Dallas:


... President of the United States in Congress Assembled in the year of 1781 (a proud year for Americans) equaled any merit or pretensions of mine and cannot now be increased by the office of Vice President.  [53]
The 12th Amendment to the Constitution of 1787 had created, for the first time, a Presidential/Vice Presidential ticket. Governor McKean, in Pennsylvania’s ratification of the 12th amendment transmittal letter, wrote to President Jefferson on January 8, 1804:


Several Gentleman of the Republican Party have wished to use my name as a Candidate for Vice President, but I have absolutely declined it on public and personal considerations, and my reasons seem to have given satisfaction.[54]
Former President McKean, although respectful of President Jefferson’s office, saw the Vice Presidency as a post vastly substandard to the office of President of the United States he held in the crucial months of 1781. 

            Accordingly, the Defendant’s respectfully requests that the honorable court reverse the motion to dismiss and order a hearing to interpret the meaning of the term“president” in the Presidential Coin Act.


Respectfully submitted,

s/        
Stanley L. Klos
Suite 211
687 Alderman Road
Palm Harbor, Florida 


M.
  CERTIFICATE OF SERVICE

I certify that on the 29 day of September, 2008, I served copies of the above Brief in paper form by United States Mail on the following counsel of record:
Michelle Thresher Taylor,
AUSA Appellate Division
United States Attorney’s Office
400 N. Tampa Street
STE 3200
          Tampa, Florida 33602
                    
Henry M. Paulson, IN HIS CAPACITY
AS SECRETARY OF THE TREASURY
1500 Pennsylvania Ave NW
Washington, DC 20220

Thomas K. Kahn, Clerk
U.S. Court of Appeals for the 11th Circuit
56 Forsyth St. N.W. Atlanta, Georgia 30303



s/          
Stanley L. Klos
Suite 211
687 Alderman Road
Palm Harbor, Florida 34683



Record Excerpts

United States Court of Appeals for the Fifth Circuit

Appeal Number: 08-14645-C
STANLEY KLOS, Plaintiff, Appellant v. HENRY M. PAULSON, JR., in his capacity as Secretary of the Treasury, Defendant., Appellee

CASE NUMBER:  8:08-cv-00843-SDM- TBM
 The Honorable Steven Merryday, Judge, Presiding
_____________________________________________

TABLE OF CONTENTS
1.      Civil Docket for Case No. 8:08-cv-00843-SDM- TBM, U.S. District Court for the Middle District of Florida, Klos v. Paulson, case filed 5/01/2008.
2.      Complaint against Henry M. Paulson filed by Stanley L. Klos (Attachments: #1- Exhibit A, #2 -Exhibit B, #3 – Exhibit C
3.      Motion to dismiss Complaint by Henry M. Paulson, Jr. (Corinis, Jennifer) 06/19/2008
4.      Response to the motion to dismiss Stanley L. Klos 07/03/2008
5.      ORDER granting the Motion to Dismiss, Judge Steven D. Merryday 07/14/2008
6.      Certificate of Service of Notice to Motion to Reconsider with the Motion  mailed July 22, 2008 by Stanley L. Klos
7.      Motion For Reconsideration LATE filed front page dated August 1, 2008
8.      ORDER denying the Motion for Reconsideration 08/12/2008
9.      Notice of Appeal by Stanley L. Klos, 08/12/2008.
10.  Appearance of Counsel Form, Michelle Thresher Taylor.
11.  Exhibits A – O for The Appellant’s Brief date 09/26/2008


CERTIFICATE OF RECORD EXCERPTS SERVICE


I certify that on the 29th day of September, 2008, I served copies of the above Record Excerpts by hand delivery on the following counsel of record:

Michelle Thresher Taylor,
AUSA Appellate Division
United States Attorney’s Office
400 N. Tampa Street
STE 3200
          Tampa, Florida 33602
                    
Henry M. Paulson, IN HIS CAPACITY
AS SECRETARY OF THE TREASURY
1500 Pennsylvania Ave NW
Washington, DC 20220

Thomas K. Kahn, Clerk
U.S. Court of Appeals for the 11th Circuit
56 Forsyth St. N.W. Atlanta, Georgia 30303


s/____________________
   Stanley L. Klos
Suite 211
687 Alderman Road
Palm Harbor, Florida 34683






N.  CERTIFICATE OF COMPLIANCE

Pursuant to 5th Cir. R. 32.2 and .3, the undersigned certifies this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7).

1.  EXCLUSIVE OF THE EXEMPTED PORTIONS IN 5TH CIR. R. 32.2, THE BRIEF CONTAINS

    A. 10,553 words, 

2.  THE BRIEF HAS BEEN PREPARED in proportionally spaced typeface using: Software Name and Version:     Microsoft Word    in (Typeface Name and Font Size):  Times New Roman


THE UNDERSIGNED UNDERSTANDS A MATERIAL MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN FED. R. APP. P. 32(a) (7), MAY RESULT IN THE COURT'S STRIKING THE BRIEF AND IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.

s/     __________       
 Stanley L. Klos
Suite 211
687 Alderman Road
Palm Harbor, Florida 34683

 

Exhibit A



 

Exhibit B


 

Exhibit C


 
Exhibit D





Exhibit E


Image Courtesy of the Library of Congress

 

Exhibit F





Exhibit F Back







Exhibit G

Image from the Appellant’s Proposed Constitution of 1777 Presidential Coins




Exhibit H

Image from the Appellant’s Proposed Constitution of 1777 Presidential Coins


Exhibit I


 
Image Courtesy from the Appellant’s 18th Century  Journals of Congress 

Exhibit J


Image Courtesy from the Appellant’s Historical Document Collection


Exhibit K


Image Courtesy of the Library of Congress



Exhibit L


Image Courtesy from the Appellant’s 18th Century Journals of Congress

 

  

Exhibit M


Image Courtesy of the National Archives

 
  


Exhibit N


 
Image Courtesy of the Library of Congress


 

Exhibit O


Image Courtesy of the Library of Congress

 


[1] Rebels With A Vision, Historic Documents of Freedom,  Carnegie Institute and Library,  Pittsburgh, PA , July 4, 1999: http://www.youtube.com/watch?v=qxAVBfar0M8
[2] Forgotten Founders, Historic Documents and Medallions of Freedom, CivicFest, Minneapolis Convention Center, August 25 – September 4th, 2008, http://civicfest.org/exhibits.html
[3] Huntington, Samuel and Martha, Re-Entombment Ceremony, Old Cemetery, Norwich, CT, November 24, 2003, http://www.youtube.com/watch?v=W07X9FW3TFY
[4] Journals of the Continental Congress, November 15, 1777
[5] Journals of the Unites States in Congress Assembled, October 1, 1782
[6] Ibid, MARCH 26, 1784
[7] Ibid, FEBRUARY 3, 1786
[8] Ibid, January 28, 1783
[9] Ibid,  June 21, 1783
[10] Journals of the Unites States in Congress Assembled, MARCH 15, 1787
[11] Ibid
[12] Ibid, March 1, 1781
[13] Journals of the United States in Congress Assembled, March 2, 1781
[14] Ibid, July 10, 1781
[15] Ibid, November 5, 1781
[16] Ibid, November 4, 1782
[17] Ibid, November 3, 1783
[18] Ibid, November 30, 1784
[19] Ibid, November 23, 1785
[20] Ibid, June 6, 1786
[21] Ibid, February 2, 1787
[22] Ibid, January 22, 1788
[23] Klos, Stanley, The Rise of the U.S. Presidency and Forgotten Capitols of the United States, pages 62-152, Roi.us Corporation, Palm Harbor, Florida 2008 – ISBN 0-9752627-8-5
[24] The Documentary History of the Ratification of the Constitution: Vol. 1: Constitutional Documents and Records, 1776-1787, ed. Merrill Jensen, Madison, Wis.: State Historical Society of Wisconsin, 1976; Encyclopedia of American History: Bicentennial Edition, ed. Richard Morris, New York; Harper & Row, 1976; Documents of American History, ed. Henry Steele Commanger, Englewood Cliffs, NJ; Prentice-Hall, 1973
[25] 50 States Commemorative Coin Program Act (Enrolled Bill), --S.1228-- An Act To provide for a 10-year circulating commemorative coin program to commemorate each of the 50 States, and for other purposes.  Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled.
[26] Department Treasury Letter to Stanley L. Klos, May 13, 2002.
[27] Journals of the Continental Congress, Articles of Confederation, March 1, 1781
[28] Constitution of the United States, Article II, Section 2.
[29] Journals of the Continental Congress, Resolution for Commander-in-Chief, June 17th, 1775
[30] Journals of the United States in Congress Assembled, George Washington Resigns Commander-in-Chief Commission, December 23, 1783
[31] Journals of the United States in Congress Assembled, September 28, 2787, United States Constitution of 1787 Article II, Section 2 (2)The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States.
[32] Smith, Paul H., et al., eds. Letters of Delegates to Congress, 1774-1789. 25 volumes, “President Samuel Huntington to Governor Jonathan Trumbull – April 30, 1781 President Hunting ton writes: “I hope, before this, some delegates from Connecticut are on the way to Congress, I am once more left alone from the state and shall not be able to attend any consid­erable time longer myself.” , Washington, D.C.: Library of Congress, 1976-2000). 
[33] Librarian of Congress, The Works of Charles Sumner, Lee and Shepard: 1877 Entered according to Act of Congress, In the year 1877, BY FRAXCIS V. BALCIF, EXECUTOR, page 416 – “We are accustomed to praise lawgivers of antiquity ... but I doubt whether one single law of any lawgiver, ancient or modern, has produced the effects of more distinct, marked, and lasting character than the Ordinance of 1787.”
[34] Journals of the United States in Congress Assembled “According to Order the Ordinance for the government of the territory of the United States North West of the river Ohio was read a third time  and passed as follows”, July 13, 1787
[35] Journals of the Continental Congress, Articles of Confederation, Article IX, March 1, 1781
[36] The Cout de Moustier to John Jay, February 19, 1788, Diplomatic Correspondence of the U.S., 348-349.
[37] Ibid, “South Carolina appeal for congressional intervention in hearing boundary dispute with Georgia” September 11, 1786.
[38] Journals of the United States in Congress Assembled, “approves acquittal of leaders of the Philadelphia mutiny” September 13, 1783.
[39] Journals of the United States in Congress Assembled, “Rejects motion for more severe corporal punishment for Continental troops,” June 16, 1781
[40] Journals of the United States in Congress Assembled, “Connecticut-Pennsylvania boundary dispute” June 27, 1782 and January 3, 1783 - first settlement of interstate dispute under Constitution of 1777.
[41] National Endowment for the Humanities, Grades 3-5 Jamestown Changes, http://edsitement.neh.gov/view_lesson_plan.asp?id=269
[42] The History of the Monarchy, ELIZABETH I, http://www.royal.gov.uk/output/Page46.asp, The British Royal Household.
[43] Washington, George to President Thomas McKean, October 6, 1781 – Camp before York,   Sir: … I am not apt to be sanguine, but I think in all human probability Lord Cornwallis must fall into our hands. … The variety of matter which engages my attention must be my apology. My public dispatch will inform your Excellency of our progress up to this date. With the greatest esteem and respect etc., George Washington Papers, Library of Congress.
[44] Robins, Sally Nelson Love Stories of Famous Virginians, National Society of the Colonial Dames of America in the Commonwealth of Virginia Published in 1923 by the Dietz Printing Company, pages 133-135
[45] Broadside  Announcing Ceremonial for Washington's Inauguration, 29 April 1789, Stanley L. Klos Collection Announcing Ceremonial for Washington's Inauguration, 29 April 1789, Stanley L. Klos Collection
[46] Farrand, Max,  The Records of the Federal Convention of 1787, May 30, 1787, New Haven: Yale University Press, 1911
[47] Ibid, June 20, 1787
[48] Ibid
[49] Journals of the Continental Congress, Articles of Confederation – Preamble, November 15, 1777
[50] The Constitution of the United States of America, Preamble, Original Manuscript, September 17, 1787, National Archives, Washington, DC.
[51] Congress of the United States of America, Biographical Directory of the United States Congress, Gorham, Nathaniel, http://bioguide.congress.gov/scripts/biodisplay.pl?index=G000325
[52] Journal of the Continental Congress, Articles of Association, October 20, 1774.
[53] McKean, Thomas to Alexander J. Dallas, October 16, 1803, The Life of Albert Gallatin, by Henry Adams, p.313
[54] McKean, Thomas to President Thomas Jefferson as Governor of Pennsylvania, January 8, 1804,   The Thomas Jefferson Papers, Library of Congress



ORIGINAL COMPLAINT 


STANLEY KLOS,  Plaintiff
 
v.
 
HENRY M. PAULSON, JR., in his capacity as Secretary of the Treasury, Defendant.

Appeal No. 08-14645-CCase No:  8:08-cv-00843-SDM-TBM

   
Number One? George Washington Coin with Samuel Huntington & Philadelphia State House Medallion


George Washington was the 1st President of the United States under the Constitution of 1787.  Washington was also the 1st Commander-in-Chief under the Articles of Association (1774) and the Constitution of 1777.  Samuel Huntington, however, was the 1st President of the United States under the Constitution of 1777 a full eight years before George Washington served as President.  -- Click Here to View all Coins

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION



STANLEY KLOS, Plaintiff,

v.

HENRY M. PAULSON, JR.,  Secretary of the Treasury,  Defendant.


COMPLAINT
Plaintiff, Stanley KIos (“Plaintiff), sues the Defendant, Henry M. Paulson, Jr., in his capacity as Secretary of the Treasury (“Defendant”), and alleges:

1. Plaintiff is an individual who resides in Pinellas County, Florida. At all times material hereto, Plaintiff is and has been the father of three minor children who reside in Pinellas County, Florida.

2. Defendant, Henry M. Paulson, Jr., is the Secretary of the Treasury. At all times material hereto, the Treasury Department has been an agency of United States, and Defendant
was an agent or employee of the Treasury Department.

3. The Court has subject matter jurisdiction over this action pursuant to 28 U_S.C.  Sections 1361, 1331, and 2201.

4. Venue is proper in this District pursuant to 28 U.S.c. Section 1391(e).

5. On December 22, 2005, Congress enacted Public Law 109-145, the Presidential $1 Coin Act of 2005 (the “Presidential Coin Act”). A true copy of the Presidential Coin Act is
attached hereto as Exhibit “A.”

6. Title I of the Presidential Coin Act amends 31 U.S.c. Section 5112 to add a new subsection (n), and directs the Secretary of the Treasury to issue one dollar coins that bear designs that” are emblematic of the Presidents of the United States.” Presidential Coin Act, Sec. 1 02; 31 U.S.C. Section 5112©. The Presidential Coin Act further directs the Secretary of the Treasury to mint coins until each President has been honored.

7. By letter dated March 20, 2008, Plaintiff sent a letter to Defendant, demanding that one  dollar coins be issued commemorating the following Presidents that served under the Constitution of 1777:

President of the United States             Term Begins        Term Ends

September 28, 1779
July 6, 1781
 July 10, 1781
November 4, 1781
November 5, 1781
November 3, 1782
November 4, 1782
November 2, 1783
November 3, 1783
November 2, 1784**
November 30, 1784
November 22, 1785
November 23, 1785
November 22, 1786
June 6, 1786
November 13, 1786
February 2, 1787
October 29, 1787
 January 22, 1788
January 21, 1789

*Huntington was elected as President of the Continental Congress but
ascended to the United States Presidency on March 2, 1781
under the Constitution of 1777 -- The Articles of Confederation


(Collectively, the “Constitution of 1777 Presidents”).  A true copy of this letter is attached hereto as Exhibit “B.”
8. On April 1, 2008, the Department of Treasury responded to Plaintiffs letter, and advised Plaintiff that coins would not be issued for the Constitution of 1777 Presidents because although the Constitution of 1777 Presidents were admittedly “Presidents of the United States in Congress Assembled ... Their role was not both as chief executive in the way the Presidents of the United States from George Washington (Constitution of 1787) to the present have been. “ A true copy of this letter is attached hereto as Exhibit “C.”
9. The Constitution of 1777 Presidents are “Presidents of the United States” within the meaning of the Presidential Coin Act.
10. The Department of Treasury, in direct violation of its duty under the Presidential Coin Act continues to wrongfully refuse to issue coins hearing the images of the Constitution of 1777 Presidents.
11. Plaintiff has been injured by the Defendant’s wrongful refusal to issue coins bearing the images of the Constitution of 1777 Presidents and will continue to suffer injury in the future in that Defendant’s conduct perpetuates the commonly held misconception that the Constitution of 1777 Presidents were not “Presidents of the United States” and misleads all students in America, including Plaintiffs minor children, concerning the existence and identity of the earliest founders and Presidents of the United States. Additionally, the Plaintiff is an exhibitor of rare historical U.S. Presidential manuscripts and this commonly held misconception creates an constant and consistent impediment for inclusion of the Constitution of 1777 Presidents in Presidential Exhibits.


Number Two?  John Adams Coin with Thomas McKean and Carpenters Hall Medallion



COUNT I  DECLARATORY RELIEF

12. This is an action for declaratory relief pursuant to 28 U.S.C. Section 2201.
13. Plaintiff incorporates and realleges the allegations of paragraphs 1 through 11 above.
14. An actual controversy exists between Plaintiff and Defendant concerning whether the Constitution of 1777 are “Presidents of the United States” within the meaning of the Presidential Coin Act, such that Defendant is required by law to issue coins bearing the images of the Constitution of 1777.
WHEREFORE, Plaintiff demands judgment against Defendant: (a) declaring that the Constitution of 1777 Presidents are “Presidents of the United States” within the meaning of the

Presidential Coin Act; (b) declaring that the Presidential Coin Act requites Defendant to issue one dollar coins bearing the images of each of the Constitution of 1777 Presidents; and ©
granting such other, further or different relief as is just and equitable.



Number Three?  Thomas Jefferson Coin with John Hanson and York-Town Court House Medallion

 

COUNT II MANDAMUS

15.       This is an action pursuant to 28 U.S.C. Section 1361.
16.       Plaintiff incorporates and realleges the allegations of paragraphs I through 11  above.
17.        Defendant has failed and refused to perform his statutory duty under the  Presidential Coin Act to issue one dollar coins bearing the images of the Constitution of 1777
Presidents.

WHEREFORE. Plaintiff demands judgment against Defendant: (a) compelling Defendant to issue one dollar coins bearing the images of each of the Constitution of 1777 Presidents; and (b) granting such other, further or different relief as is just and equitable.



Dated:  May 1,   2008.                                                                          

Stanley L. Klos
2706 Alternate 19, Suite 308
Palm Harbor, Florida 34683 tel: 727-771-1776
fax: 813-200-1820 coin@uspresidency.com




RESPONSE - June 19, 2008
Case 8:08-cv-00843-SDM- TBM





Number Four?  James Madison Coin with Elias Boudinot & Nassau Hall Medallion



The 4th President of the United States was actually Elias Boudinot and not James Madison.  Elias Boudinot would later serve as George Washington, James Adams and Thomas Jefferson's Director of the U.S. Mint.  It is most disheartening to this author that The U.S. Mint is wrongfully ordered by Congress and the President to perpetuate the myth that George Washington was the 1st President of the United States.  


UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

STANLEY KLOS, Plaintiff,

v.
HENRY M. PAULSON, JR., in his capacity as Secretary of the Treasury, Defendant.


DEFENDANT'S MOTION TO DISMISS

Defendant, HENRY M. PAULSON, JR., Secretary of the Treasury, through the undersigned Assistant United States Attorney, respectfully moves the Court  to dismiss Plaintiffs Complaint. In support of its motion, Defendant states as follows:
I. Factual Background
In his Complaint, filed on May 1, 2008, Plaintiff alleges that the  Department of the Treasury "wrongfully refuses to issue coins bearing the  images of the Constitution of 1777 Presidents."  Compl. at §10.   The “Constitution of 1777 Presidents" are individuals who served as President under the Articles of Confederation. Compl. at § 7.  Plaintiff seeks declaratory judgment against the Defendant, demanding a declaration that (1) the "Constitution of 1777 Presidents" are Presidents of the United States within the meaning of the Act, and (2) the Act requires Defendant to issue $1 coins bearing the images of each of the "Constitution of 1777 Presidents." In addition, Plaintiff seeks judgment against the Defendant compelling him to issue $1 coins bearing the images of each of the "Constitution of 1777 Presidents."
At issue is the Presidential $1 Coin Act of 2005 (hereafter "the Act"), which was enacted by Congress on December 22, 2005. By amending 31 U.S.C. § 5112, the Act requires, inter alia, the Secretary of the Treasury to issue $1 coins in commemoration of each of the Nation's past Presidents in the order in which each President served. The statute makes clear that the coins are to be issued in the order in which past presidents served, starting with President George Washington.

II. Argument
A. THE COURT SHOULD DISMISS PLAINTIFF'S COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.
1. Procedural Legal Standards
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal for "failure to state a claim upon which relief can be granted." Dismissal under Rule 12(b)(6) is appropriate when it clearly appears that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In deciding a motion to dismiss pursuant to Rule 12(b)(6), all facts alleged in the complaint must be accepted as true. Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir. 2004). However, a court may not accept conclusory allegations and unwarranted factual deductions as true. Lockheed Marlin Corp. v. Boeing Co., 314 F.Supp. 2d 1198, 1207 (M.D.Fla. 2004).
2. Neither the Secretary of the Treasury nor the Department of the Treasury has the authority to issue coins bearing the images of each of the "Constitution of 1777 Presidents" under the Act
31 U.S.C. § 5112(n)(3)(A), as amended by The Act, provides as follows:

(3) ISSUANCE OF COINS COMMEMORATING PRESIDENTS-
                         (A)      ORDER OF ISSUANCE - The coins issued under this subsection commemorating Presidents of the United States shall be issued in the order of the period of service of each President, beginning with President George Washington.
(emphasis added). The "Constitution of 1777 Presidents" preceded President George Washington's service as President of the United States. Congress has explicitly articulated to the Secretary of the Treasury that the Presidential $1 Coins shall be issued in the order of the period of service beginning with President George Washington. Since Congress does not grant the Secretary of the Treasury any authority to include the "Constitution of 1777 Presidents" in the coin program, neither the Secretary nor the Department has "wrongfully refused" to issue such coins. Thus, Plaintiffs demand for a declaratory judgment indicating that the Act requires the Secretary to issue such coins is clearly unsupported. In addition, a declaration that the "Constitution of 1777 Presidents" are Presidents of the United States within the meaning of the Act is improper as the Act does not provide for the inclusion of such individuals in the coin program.
    Likewise, the Secretary does not owe a duty to issue coins bearing the images of each of the "Constitution of 1777 Presidents" since the Act does not grant the Defendant such authority. Thus, the Secretary of the Treasury cannot be compelled by a writ of mandamus to perform a duty that has not been imposed by law. United States ex reI. Redfield v. Windom, 137 U.S. 636, 643-44 (1890). In fact, it would be contrary to the statute, as enacted, to issue coins bearing images of anyone serving in the office of "Constitution of 1777 President"  because those individuals' service predates that of President George Washington.
The historical contentions set forth by the Plaintiff in his Complaint as to whether the "Constitution of 1777 Presidents" served in the same capacity as President George Washington and his successors are immaterial in this matter. These arguments are legally insufficient to support the relief sought since, as previously stated, the Act does not grant the Defendant any authority to issue coins bearing the images of each of the "Constitution of 1777 Presidents."
III. Conclusion
For the reasons set forth above, the Count should dismiss Plaintiffs complaint for failure to state a claim upon which relief can be granted.
Respectfully submitted,
ROBERT E. O'NEILL United States Attorney
By: s/Jennifer W  Corinis 
 
JENNIFER W. CORINIS,  Assistant United States Attorney
 Florida Bar No. 0049095
United States Attorney's Office
400 North Tampa Street, Suite 3200 Tampa, Florida 33602
Telephone No: (813) 274-6310 Facsimile No: (813) 274-6198 E-mail: jennifer.corinis@usdoj.gov

Of Counsel:
Huey-Ling Nie
United States Mint
801 9th Street, N.W. Washington, D.C. 20220






Number Five?  James Monroe Coin with 
Thomas Mifflin and Maryland State House Medallion

 
 
George Washington was the 1st Commander-in-Chief of both the United Colonies and States of America serving from 1775 to 1783 

RESPONSE - July 2, 2008

Sheryl L. Loesch - Clerk of Court
Sam M. Gibbons U.S. Courthouse
801 North Florida Avenue
Tampa, Florida 33602 July 2, 2008

Re: 8:08CR 843-T23TBM Klos vs. Paulson

Dear Ms. Loesch,
Enclosed please find my response to the 6/16/08 DEFENDANT'S MOTION TO DISMISS. 

Happy Independence Day!! July 2 is when the United Colonies of America passed a resolution declaring Independence from Great Britain: 


``Resolved, That these United Colonies are, and of right ought to be, free and inde­pendent states, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved.'' - Journals of the Continental Congress, July 2, 1776



On that day an exuberant John Adams wrote Abigail:



"But the Day is past. The Second Day of July 1776, will be the most memorable Epocha, in the History of America. I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival. It ought to be commemorated, as the Day of Deliverance by solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more."



We of course celebrate the 4th of July as “Independence Day” as that is when the 12 Colonies passed the Long Resolution for Independence -- New York held off until July 9th.





Sincerely,





Stanley L. Klos



Forgotten Founders Historic Documents Freedom 

Suite 308 | 2706 Alternate 19 | Palm Harbor Fl 34683

tel: 727-771-1776 | fax: 813-200-1820 | stas.klos@gmail.com





Number Six? John Quincy Adams Coin with Richard Henry Lee & French Arms Tavern

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

STANLEY KLOS, Plaintiff,

v.                                                                                 CASE NUMBER:  8:08-cv-00843-SDM- TBM

HENRY M. PAULSON, JR., in his capacity as Secretary of the Treasury, Defendant.


RESPONSE TO MOTION TO DISMISS
Plaintiff, Stanley Klos, files this memorandum of law in opposition to the Defendant’s Motion to Dismiss, and says: 
This case involves claims for declaratory and mandamus relief against the Secretary of the Treasury, pursuant to 28 U.S.C. Sections 2201 and 1361.  Specifically, Plaintiff seeks the entry of an order compelling the Secretary of the Treasury to comply with the requirements of the Presidential $1 Coin Act of 2005 (the “Presidential Coin Act”), 31 U.S.C. Section 5112, by minting coins bearing the images of Presidents Samuel Huntington, Thomas McKean, John Hanson, Elias Boudinot, Thomas Mifflin, Richard Henry Lee, John Hancock, Nathaniel Gorham, Arthur St. Clair and Cyrus Griffin (collectively, the “Constitution of 1777 Presidents”).  Complaint, ¶10.
Defendant’s Motion to Dismiss asserts that the Complaint should be dismissed for failure to state a claim upon which relief can be granted.  Specifically, Defendant asserts that declaratory and mandamus relief is not warranted because the statute does not support the claims asserted by Plaintiff.  Specifically, Defendant contends that the term “president” as used in the Presidential Coin Act does not include the Constitution of 1777 Presidents.  
Defendant seeks to have the Court decide the merits of the case in the context of a motion to dismiss.  However, “a well-pleaded complaint will survive a motion to dismiss” “even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’ ”  Bell Atlantic Corp. v. Twombly, ---U.S. ----, ---- - ----, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (internal citations omitted).


            Defendant is seeking resolution of the pivotal issue in this case, interpretation of the term “president” within the meaning of the Presidential Coin Act, by a motion to dismiss.   “The fact that a duty becomes clear only after construction of a statute” does not mean that Plaintiff has not stated a claim for mandamus relief.  White v. Matthews, 420 F. Supp. 882, 888 (D.S.D. 1976).  See also Carey v. Local Board No. 2, 297 F. Supp. 252, 254 (D. Conn. 1969) (“The fact that a statute may require administrative or judicial construction in order to determine what duties it creates does not mean that mandamus is not proper to compel the officer to perform that duty once it is determined”); and Martinez v. Dunlop, 411 F. Supp. 5, 9 (N.D. Cal. 1976).  In this case, the Court must interpret the meaning of the term “president” in the Presidential Coin Act before it can determine whether mandamus will lie.  This issue can not be determined in the context of a motion to dismiss.  Accordingly, the Defendant’s Motion to Dismiss should be denied. 

Dated:  July 2, 2008                                          
                                                                                   Stanley L. Klos
                                                                                    Suite 308,  2706 Alt 19
                                                                                    Palm Harbor, Florida  34683
                                                                                    Tel: 727-771-1776
                                                                                     Fax: 813-200-1820
                                                                                     coin@uspresidency.com


  
In 1774 the First Congressional Caucus of The United Colonies occurred in a Tavern where it was decided Peyton Randolph serves as President the Delegates would formally assemble in Carpenters Hall.  In 1789 while New York City Hall was being renovated the new-tri-cameral government, President Griffin and the delegates convened the United States in Congress Assembled for the last time at Fraunces Tavern in New York City.
 
ORDER

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

STANLEY KLOS, Plaintiff,

v.                                                                                                                            CASE NUMBER:  8:08-cv-00843-SDM- TBM

HENRY M. PAULSON, JR., in his capacity as Secretary of the Treasury, Defendant.

ORDER

    The plaintiff sues Henry M. Paulson, the Secretary of the Treasury, and alleges that the Secretary fails to comply with Section 102 of the “Presidential $1 Coin Act of 2005" (the “Coin Act”).1 Section 102 amends 31 U.S.C. § 5112 by adding subsection 5112(n), entitled “Redesign and Issuance of Circulating $1 Coins Honoring Each of the Presidents of the United States,” which directs the Secretary to issue one dollar coins bearing designs that “are emblematic of the Presidents of the United States,” 31 U.S.C. § 5112(n)(1)(A), and directs that the issuance of coins shall continue until “each President has been so honored,” 31 U.S.C. § 5112(n)(8). The plaintiff alleges that the Secretary violates the Coin Act by refusing to issue a coin bearing the image of each “president” who served under the Articles of Confederation, denominated by the plaintiff as the “Constitution of 1777.” The plaintiff seeks (a) a declaration pursuant to 28 U.S.C. § 2201 that each “Constitution of 1777 President” is a President of the United States within the meaning of the Coin Act and that the Coin Act requires the Secretary to issue a one dollar coin bearing the image of each “Constitution of 1777 President,” and (b) an order pursuant to 28 U.S.C. § 1361 compelling the Secretary to issue the statutorily required one dollar coins.
Section 102 of the Coin Act provides that “[t]he coins issued under this subsection commemorating Presidents of the United States shall be issued in the order of the period of service of each President,beginning with President George Washington.” Pub. L. No. 109-145, § 102; 119 Stat. 2664, 2666; 31 U.S.C. § 5112(n)(3)(A) (emphasis added). Accordingly, the defendant argues that the Coin Act neither requires nor authorizes the Secretary to issue a coin bearing the image of any “Constitution of 1777 President,” each of whom preceded President Washington. Accordingly, the defendant moves (Doc. 11) to dismiss the complaint pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure.2
 In response (Doc. 12), the plaintiff (a) notes the liberal notice pleading standard under the federal rules and the fact that “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the facts alleged] is improbable, and that a recovery is very remote and unlikely,” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007) (internal quotation marks omitted), and (b) argues that the defendant’s motion should be denied because the defendant is “seeking resolution of the pivotal issue in this case, interpretation of the term ‘president’ within the meaning of the Presidential Coin Act, by a motion to dismiss” and “[t]his issue cannot be determined in the context of a motion to dismiss.”
The plaintiff misconstrues Rule 12(b)(6). On a motion to dismiss for failure to state a claim, “a judge must accept as true all of the factual allegations contained in the complaint,” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and must construe the factual allegations most favorably to the plaintiff, Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). However, “legal conclusions masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002). The defendant disputes no fact alleged in the complaint. Instead, the defendant contests a legal conclusion – that the Coin Act requires the Secretary to issue a one dollar coin bearing the image of each “Constitution of 1777 President” – essential to the plaintiff’s right to relief. The Coin Act’s requirement that the coins be issued “in the order of the period of service of each President, beginning with President George Washington” strongly supports the defendant’s contention, and the plaintiff offers no convincing argument, explanation, or citation of authority 3 to support a contrary interpretation of the statute.4 Because the Coin Act neither requires nor authorizes the Secretary to issue a coin bearing the image of each “Constitution of 1777 President,” the complaint asserts no cognizable right to relief under 28 U.S.C. § 1361 and declaratory relief under 28 U.S.C.§ 2201 is inappropriate.
The plaintiff’s wish to correct what he regards as a widespread misconception about those who served the nation under the Articles of Confederation is laudable.However, the plaintiff’s remedy, if any, lies in the legislature.

The defendant’s motion (Doc. 11) is GRANTED. Because amendment would be futile, the complaint is DISMISSED WITH PREJUDICE for failure to state a claim on which relief can be granted. The Clerk is directed to terminate any pending motion and close the case.
ORDERED in Tampa, Florida, on July 14, 2008.




1 Pub. L. No. 109-145, 119 Stat. 2664 (“An Act to Require the Secretary of the Treasury to Mint Coins in Commemoration of Each of the Nation’s Past Presidents and Their Spouses, Respectively, to Improve Circulation of the $1 Coin, to Create a New Bullion Coin, and for Other Purposes.”).
2 Although the plaintiff’s claim of standing to sue (Doc. 1 ¶ 11) appears actually doubtful, “[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim,’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
3 The plaintiff’s March 20, 2008, letter to Secretary Paulson (Doc. 1-3 at 4) informs the Secretary that the Coin Act, properly implemented, “can do more than Congress and President Bush ever envisioned” to honor the pre-1789 presidents.
4 An April 1, 2008, letter from Patrick M. McAfee, the Director of the “Office of $1 Coin Programs,” to the plaintiff (Doc. 1-4) plausibly explains why Congress excluded the “Constitution of 1777 Presidents”: although the “Constitution of 1777 Presidents” “were known as ‘Presidents of the United States in Congress Assembled,’” “[a] president in this role functioned exclusively under the sponsorship of, and in service to, the Congress. He was the presiding officer of Congress, chaired the Committee of the States . . . when Congress was in recess, and was responsible for other administrative duties. His role was not as a chief executive in the way the Presidents of the United States from George Washington to the present have been.”




Number Seven?  Andrew Jackson Coin and Jan Hancock & Henry Fite House Medallion


MOTION FOR RECONSIDERATION


UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

STANLEY KLOS, Plaintiff,

v.                                                                                 CASE NUMBER:  8:08-cv-00843-SDM- TBM

HENRY M. PAULSON, JR., in his capacity as Secretary of the Treasury, Defendant.


MOTION FOR RECONSIDERATION
Plaintiff, Stanley Klos, files this memorandum of law and respectfully requests that the Court reconsider its Order dated July 14, 2008 dismissing the Plaintiff’s complaint against Treasury Secretary Henry Paulson for the reason that the Court did not have certain facts and arguments before it for consideration at the time of ruling on the Defendant’s Motion to Dismiss. 
This case involves claims for declaratory and mandamus relief against the Secretary of the Treasury, pursuant to 28 U.S.C. Sections 2201 and 1361.  Specifically, Plaintiff seeks the entry of an order compelling the Secretary of the Treasury to comply with the requirements of the Presidential $1 Coin Act of 2005 (the “Presidential Coin Act”), 31 U.S.C. Section 5112, by minting coins bearing the images of Presidents Samuel Huntington, Thomas McKean, John Hanson, Elias Boudinot, Thomas Mifflin, Richard Henry Lee, John Hancock, Nathaniel Gorham, Arthur St. Clair and Cyrus Griffin (collectively, the“Constitution of 1777 Presidents”).  Complaint, ¶10.
The Court dismissed the motion stating:
The plaintiff misconstrues Rule 12(b) (6). On a motion to dismiss for failure to state a claim, “a judge must accept as true all of the factual allegations contained in the complaint,” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and must construe the factual allegations most favorably to the plaintiff, Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). However, “legal conclusions masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002). 

The Court in its July 14, 2008 order agrees with the defendant’s position that the coins can not be minted for the Constitution of 1777 Presidents as they preceded George Washington stating:
 “Coin Act’s requirement that the coins be issued “in the order of the period of service of each President, beginning with President George Washington” strongly supports the defendant’s contention, and the plaintiff offers no convincing argument, explanation, or citation of authority  to support a contrary interpretation of the statute. Because the Coin Act neither requires nor authorizes the Secretary to issue a coin bearing the image of each “Constitution of 1777 President,” the complaint asserts no cognizable right to relief under 28 U.S.C. § 1361 and declaratory relief under 28 U.S.C.§ 2201 is inappropriate.”

The Plaintiff respectfully submits to the Court that the July 14th, 2008 Order exemplifies why “a well-pleaded complaint MUST survive a motion to dismiss” “even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’ ”  Bell Atlantic Corp. v. Twombly---U.S. ----, ---- - ----, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (internal citations omitted) and this case’s dismissal be reconsidered.  In his response, the Plaintiff reasoned the facts were so clear in the Constitution of 1777 Presidents case that burdening the court with pre-mature argument was not necessary when considering the  Bell Atlantic Corp. v. Twombly precedent. Therefore, with the Court concluding otherwise this Pro Se Plaintiff respectfully requests the Court consider these new facts in a full refutation to the Secretary’s motion to dismiss and the Court’s July 14th order.


Number Eight?   Martin Van Buren Coin with Nathaniel Gorham and Lancaster Court House Medallion

Argument
Defendant’s Argument #1 “The coins issued under this subsection commemorating Presidents of the United States shall be issued in the order of the period of service of each President, beginning with President George Washington”.

There is no question that the first $1.00 coin must and historically should start with President George Washington.  George Washington was not only the first President under the 1787 Constitution of the United States but he was also the only Commander-in-Chief of the United Colonies of America under the 1774 Articles of Association as well as the First Commander-in-Chief under the Constitution of 1777. (See Exhibit A) [1]. The Constitution of 1787 combined both of the offices of Commander-in-Chief and U.S. President. The Constitution of 1777, however, recognized the separation of the two offices until December 23, 1783 when Commander-in-Chief Washington resigned his office to President of the United States Thomas Mifflin[2] (Exhibit B), a former Revolutionary War Major General. 
It is therefore prudent in the Act to start the coins with President Washington as the first Commander-in-Chief and issue a second coin again for him as President/Commander-in-Chief as per 3B ii of the Bill “NONCONSECUTIVE TERMS - If a President has served during 2 or more nonconsecutive periods of service, a coin shall be issued under this subsection for each such nonconsecutive period of service.” In short, George Washington served in two nonconsecutive terms as Commander-in-Chief which, the Constitution of 1787 (that said Coin Act Bill is currently enacted under) defines as the duty and a second title for President of the United States. [3] 
It is the Plaintiff’s contention that after the minting George Washington’s Commander-in-Chief Presidential Coin (Service from 1775-1783 – see Exhibit C) the Secretary should have moved on to President Samuel Huntington until the minting of the 12th coin which would be for George Washington (Service from 1789 to 1797) as President and Commander-in-Chief under the Constitution of 1787.  The language “beginning with President George Washington” in this Act, therefore, no way precludes the Secretary of the Treasury from issuing coins for Constitution of 1777 Presidents. In fact with the phrase “beginning with President George Washington” now understood in its proper historical context, the remaining language in the Act requires the Secretary of the Treasury to mint dollar coins for all Constitution of 1777 Presidents.

Defendant’s Argument #2:  “In addition, a declaration that the "Constitution of 1777 Presidents" are Presidents of the United States within the meaning of the Act is improper as the Act does not provide for the inclusion of such individuals in the coin program.”


            On the contrary, should the Court find the Constitution of 1777 Presidents are rightfully Presidents of the United States the coins must be issued.  The Act  Section 5112 of title 31, United States Code, (n)  states that the “Redesign and Issuance of Circulating $1 Coins Honoring Each of the Presidents of the United States” is clear and does not, in any way, omit the Constitution Presidents of 1777.   Additionally the Act continues with more language requiring each President be so honored with a $1.00 Coin. Section 4 (A) of the Act states, “In general. --The designs for the $1 coins  issued during each year of the period referred to in  paragraph (1) shall be emblematic of 4 Presidents until each President has been so honored.”   The Bill also States in 3(A) “Coin obverse. --The design on the obverse shall contain--``(i) the name and likeness of a President of the United States; and ``(ii) basic information about the President, including--``(I) the dates or years of the term of office of such President; and ``(II) a number indicating the order  of the period of service in which the President served.”  More importantly, no where in the Bill does the law preclude the honoring of the Constitution of 1777 Presidents.  The Secretary’s argument that “The historical contentions set forth by the Plaintiff in his Complaint as to whether the Constitution of 1777 Presidents served in the same capacity as President George Washington and his successors are immaterial in this matter” is not only fallacious but the very core of this case. 

If these men were Presidents of the United States then, by the language of this bill, they should be so honored along with their spouses Martha Devotion Huntington, Mary Borden Sarah Armitage McKean, Jane Contee Hanson, Annis Stockton Boudinot, Sarah Morris Mifflin, Elizabeth Eskridge Lee, Dolly Quincey Hancock, Rebecca Call Gorham, Phoebe Bayard St. Clair, and Lady Christine Stewart Griffin as the title of the Act itself States: “An Act To require the Secretary of the Treasury to mint coins in commemoration of each of the Nation's past Presidents and their spouses, respectively, to improve circulation of the $1 coin, to create a new bullion coin.” This is further supported by Section 8 of the Coin Act Bill stating – “Termination of program. -- The issuance of coins under this subsection shall terminate when each President has been so honored, subject to paragraph (2) (E), and may not be resumed except by an Act of Congress.” If the Court finds these men were not Presidents of the United then the Secretary is released from his burden to honor these great patriots in the $1 Coin Program.

Defendant’s Argument #3: “The Act does not grant the Defendant any authority to issue coins bearing the images of each of the "Constitution of 1777 Presidents."

The act, as stated above in Argument #2, not only provides the authority to the Secretary of the Treasury to mint such coins but Congress deemed the power so paramount to the bill that it they placed the authority the Act’s official description “An Act To require the Secretary of the Treasury to mint coins in commemoration of each of the Nation's past Presidents and their spouses, respectively, to improve circulation of the $1 coin, to create a new bullion coin.”  If the Court finds these men were Presidents of the United then the Secretary must mint the Presidential $1 coins.

Defendant’s Argument #4:  The Court writes in footnote 4  “An April 1, 2008, letter from Patrick M. McAfee, the Director of the “Office of $1 Coin Programs,” to the plaintiff (Doc. 1-4) plausibly explains why Congress excluded the “Constitution of 1777 Presidents”: although the “Constitution of 1777 Presidents” “were known as ‘Presidents of the United States in Congress Assembled,’” “[a] president in this role functioned exclusively under the sponsorship of, and in service to, the Congress. He was the presiding officer of Congress, chaired the Committee of the States . . . when Congress was in recess, and was responsible for other administrative duties. His role was not as a chief executive in the way the Presidents of the United States from George Washington to the present have been.” 
No where in the Coin Act does the Congress ever address the title or duties of Chief Executive to be a pre-requisite of minting the $1 coins.  No where in the Coin Act does Congress provide any criteria to exclude the Constitution of 1777 Presidents.   Moreover, these Presidents utilized their office to exercise much influence on United States public affairs and legislation.   It will be argued in this case that in many instances the Constitution of 1777 Presidents actually had more “Head of State” powers then George W. Bush, the current President of the United States.
For example, under Article V of the Constitution of 1777, “In determining questions in the United States in Congress assembled, each State shall have one vote,” the Presidents were often the only delegate representing their entire State. [4] In  the unicameral Federal Government the President while presiding over Congress (much like today’s Speaker of the House) casted a vote for their State in quorums as small as seven states enacting binding legislation. This means that the Constitution of 1777 Presidents’ votes while  chairing the unicameral Congress, from time to time, represented not 1/13th but 1/7th off all ballots required to pass a law.  For example on one of the most important pieces of legislation ever to be enacted in the United States of America, the Northwest Ordinance [5], only eight states were present during this bill’s passage. [6]
In the case of legislation, is not the Constitution of 1777 Presidential office a more potent political position that that of President George W. Bush? For example, after two legislative houses, with 535 potential votes, labored for over a year to pass the Coin Act of 2005 under the Constitution of 1787 the President’s true power was limited to a veto. Which office was politically more powerful in enacting legislation, presiding and over and having 1/7th of all votes required to pass or 2/3rd’s veto power over a bill?  True, the Constitution of 1777 Presidents performed legislative duties similar to the Speaker of the House but they had no 2nd legislative body to check their laws or an executive branch to veto their Bills. Moreover, since there was no executive or judicial branch the President often took on the duties of the Constitution of 1787 Head of State and Supreme Court Justice. Duties included:
·         The Presidents had the power to call for the unicameral government’s assembly and adjournment.
·         The Presidents issued military orders (Exhibit D, President John Hanson - September 7, 1782 Military directive to George Washington), signed military commissions, (Exhibit E, President Samuel Huntington -- Signed Military Commission), Diplomatic Commissions (Exhibit F, President Thomas McKean, September 7, 1781 Commission of Joseph de l” Etombe), treaties (Exhibit G, Thomas Mifflin – ratifying the 1783 Treaty of Paris), proclamations (Exhibit H, Cyrus Griffin – September 5, 1788, Cherokee Proclamation), and resolutions (as Exhibit I, Richard Henry Lee - October 16, 1786 Ordinance Establishing the U.S. Mint)  Presidents of the United States. 
·         The Presidents received, read, answered, and at their own discre­tion held or disseminated the official state and foreign correspondence to the United States.
·         They received both United States and foreign dignitaries when they arrived at the Capitol as the Head of State for the United States of America extending the nation’s official hospitality.[7]
·         The Presidents acted similar to Supreme Court Chief Justices presiding over cases such as Federal Court Appeals, [8] Death Penalty Appeals,[9] Military trials[10] and State boundary  disputes.[11] 
As stated, the powers that they did or did not have as President of the United States in Congress Assembled are not the issue of this Writ of Mandamus. To illustrate the point of this position let’s examine the Colonial history of the United States and Great Britain. King James I Jamestown Charter began the establishment of the 13 original states as colonies on May 14, 1607. [12] Four years prior to that date, Queen Elizabeth I ruled as one of the most powerful monarchs in the history of western civilization.[13]  Elizabeth I has since been followed, 349 years later, by Queen Elizabeth II, who has limited authority when compared to boundless power of her predecessor. The duties and powers of the Crown have dramatically changed since Colonial America. These changes, however, do not connote that Elizabeth II is no longer a Queen of England.  Conversely, the ten men who served as Presidents of the United States, in Congress Assembled under the Constitution of 1777 had duties quite different then George W. Bush.  George Washington, the First Commander-in-Chief of the United States during the Revolutionary War reported to President of the United States, Samuel Huntington and had duties quite different then George Bush who serves during the War on Terror.   Is not George Bush the Commander-in-Chief?   Is not Elizabeth the II Queen?  Is not Samuel Huntington President of the United States?   If he is President does the ambiguous language of the President Coin Act preclude him a coin?

 



 
Number Nine?   William Henry Harrison Medallion with Arthur St. Clair & New York City Hall Medallion

Conclusion
            It is perplexingly  ironic to this Plaintiff that Congress in  SEC. 101. FINDINGS, Congress states in (8) “Many people cannot name all of the Presidents, and fewer can name the spouses, nor can many people accurately place each President in the proper time period of American history” in one of its 13 findings and the Secretary argues, on the other hand, the founding Presidents of the United States are excluded from the Act.   The Perpetual Union of the United States of America founded by the 13 States under the ratified Constitution of 1777 provided for our Office of President of the United States these men along with their spouses must be so honored in the Coin Act of 2005. 
The Court writes: “The plaintiff’s wish to correct what he regards as a widespread misconception about those who served the nation under the Articles of Confederation is laudable. However, the plaintiff’s remedy, if any, lies in the legislature.”   The plaintiff has sought legislative means to right history for the past ten years and contends that the legislature did the very best politically, they could, in the Coin Act of 2005.  All legislators instinctively know that publically discussing a measure, let alone introducing an Act, displacing George Washington as the first President of the United Statesis the true third rail of elective office.   This Ambiguous Act, however, provides the Court with the opportunity to finally right history by simply ordering the Defendant to abide by “An Act To require the Secretary of the Treasury to mint coins in commemoration of each of the Nation's past Presidents and their spouses, respectively, to improve circulation of the $1 coin, to create a new bullion coin.”
            In closing, it should be noted that if it were not for Supreme Court Justice Oliver Ellsworth the language in this bill would not ambiguous or be in need of judicial interpretation. It was Governor Edmund Randolph of Virginia who moved to re-name the United States, the “National Government”, in the Constitution of 1787’s Philadelphia Convention.
“Mr. R. wishes to have that resol. dissented to. The resol. postponed to take up the following: 1st. That a union of the States merely federal will not accomplish the object proposed by the articles of confederation, namely, "common defence, security of liberty, and general welfare" … 2. Resolved that no treaty or treaties between the whole or a less number of the States in their sovereign capacities will accomplish their common defence, liberty or welfare.  3. Resolved therefore that a national governmen ought to be established consisting of a supreme legislature, judiciary and executive.”[14]
For a month the delegates debated Randolph's motion of a tri-cameral division and the utilization of the phrase "National Government."  Oliver Ellsworth, Connecticut’s Delegate, took an active part in the proceedings of the Philadelphia 1787 Convention and supported the concept of a tri-cameral federal system. He was adamantly adverse, however, to renaming the “United States America” to the“National Government.”   On June 20th the following amendment was proposed by Oliver Ellsworth:
“It was moved by Mr. Ellsworth seconded by Mr. Gorham to amend the first resolution reported from the Committee of the whole House so as to read as follows -- namely,  Resolved that the government of the United States ought to consist of a Supreme Legislative, Judiciary, and Executive. On the question to agree to the amendment it passed unanimously in the affirmative.” [15]
From that point on the term United States replaced National Government in the draft documents. The words, "of America”, were added by Delegate Gouverneur Morris in the final editorial changes of  the Constitution of 1787.[16] 
Had Oliver Ellsworth not been a Delegate to the Philadelphia convention the Constitution of 1787 the convention most likely would have titled the nation, “The National Government of America.”  If this occurred then George Washington would have been entitled, rightfully, the first President of the National Government of America.  This was not the case and consequently George Washington shares that title President of the United States with the ten men who preceded him under the Constitution of 1777, the Articles of Confederation.   
The Defendant is wrongfully seeking resolution of the pivotal issue in this case, by skirting the interpretation of the term “president” within the meaning of the Presidential Coin Act, by his motion to dismiss.   “The fact that a duty becomes clear only after construction of a statute” does not mean that Plaintiff has not stated a claim for mandamus relief.  White v. Matthews, 420 F. Supp. 882, 888 (D.S.D. 1976).  See also Carey v. Local Board No. 2, 297 F. Supp. 252, 254 (D. Conn. 1969) (“The fact that a statute may require administrative or judicial construction in order to determine what duties it creates does not mean that mandamus is not proper to compel the officer to perform that duty once it is determined”); and Martinez v. Dunlop, 411 F. Supp. 5, 9 (N.D. Cal. 1976). 
In this case, in light of the new facts at hand, the Plaintiff respectfully requests the  Court to interpret the meaning of the term “president” in the Presidential Coin Act before determining whether mandamus will lie.  This issue can not legally and for the sake of these great founding men and women, be determined in the context of a motion to dismiss.   The Court is now in an unprecedented situation to hear the evidence and find that the omission of the Constitution of 1777 Presidents $1 Coins is in direct violation of the language incorporated in the 2005 Coin Act Bill.
 Accordingly, the Defendant’s respectfully requests that the honorable court reconsider the July 14, 2008 Order and so order Motion to Dismiss this Writ of Mandamus should be denied. 

Dated:  July 21, 2008                                          
                                                                                   Stanley L. Klos
                                                                                    Suite 308,  2706 Alt 19
                                                                                    Palm Harbor, Florida  34683
                                                                                    Tel: 727-771-1776
                                                                                     Fax: 813-200-1820
                                                                                     coin@uspresidency.com




 


[1] Journals of the Continental Congress, Resolution for Commander-in-Chief, June 17th, 1775 - Resolved unanimously upon the question, Whereas, the delegates of all the colonies, from Nova-Scotia to Georgia, in Congress assembled, have unanimously chosen George Washington, Esq. to be General and commander in chief, of such forces as are, or shall be, raised for the maintenance and preservation of American liberty; this Congress doth now declare, that they will maintain and assist him, and adhere to him, the said George Washington, Esqr., with their lives and fortunes in the same cause
[2] Journals of the United States in Congress Assembled, George Washington Resigns Commander-in-Chief Commission, December 23, 1783
[3] Journals of the United States in Congress Assembled, September 28, 2787, United States Constitution of 1787 Article II, Section 2 (2)The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States
[4] Smith, Paul H., et al., eds. Letters of Delegates to Congress, 1774-1789. 25 volumes, “President Samuel Huntington to Governor Jonathan Trumbull – April 30, 1781 President Hunting ton writes: “I hope, before this, some delegates from Connecticut are on the way to Congress, a I am once more left alone from the state and shall not be able to attend any consid­erable time longer myself.” , Washington, D.C.: Library of Congress, 1976-2000). 
[5] Librarian of Congress, The Works of Charles Sumner, Lee and Shepard: 1877 Entered according to Act of Congress, In the year 1877, BY FRAXCIS V. BALCIf, EXECUTOR, page 416 – “We are accustomed to praise lawgivers of antiquity ... but I doubt whether one single law of any lawgiver, ancient or modern, has produced the effects of more distinct, marked, and lasting character than the Ordinance of 1787.”
[6] Journals of the United States in Congress Assembled “According to Order the Ordinance for the government of the territory of the United States North West of the river Ohio was read a third time  and passed as follows”, July 13, 1787
[7] The Cout de Moustier to John Jay, February 19, 1788, Diplomatic Correspondence of the U.S., 348-349.
[8] Ibid, “South Carolina appeal for congressional intervention in hearing boundary dispute with Georgia” September 11, 1786.
[9] Journals of the United States in Congress Assembled, “approves acquittal of leaders of the Philadelphia mutiny” September 13, 1783.
[10] Journals of the United States in Congress Assembled, “Rejects motion for more severe corporal punishment for Continental troops,” June 16, 1781
[11] Journals of the United States in Congress Assembled, “Connecticut-Pennsylvania boundary dispute” June 27, 1782 and January 3, 1783 - first settlement of interstate dispute under Constitution of 1777
[12] National Endowment for the Humanities, Grades 3-5 Jamestown Changes, http://edsitement.neh.gov/view_lesson_plan.asp?id=269
[13] The History of the Monarchy, ELIZABETH I, http://www.royal.gov.uk/output/Page46.asp, The British Royal Household
[14] Farrand, Max,  The Records of the Federal Convention of 1787, May 30, 1787, New Haven: Yale University Press, 1911
[15] Ibid, June 20, 1787
[16] Ibid

Exhibit A


Image Courtesy of the Library of Congress

 

Exhibit 
B
Image Courtesy of Stanley L. Klos

Exhibit C

Image Courtesy of Stanley L. Klos

Exhibit D


Image Courtesy of Stanley L. Klos
 Exhibit E

Exhibit F

Exhibit G

Image Courtesy of the National Archives

 

Exhibit H


Image Courtesy of the Library of Congress

 


Exhibit I
 
Image Courtesy of the Library of Congress



 


IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT
OF FLORIDA TAMPA DIVISION

STANLEY KLOS,   Plaintiff,
v.
HENRY M. PAULSON, JR., in his capacity as Secretary of the Treasury,  Defendant.

 


No. 8:08-cv-843-SDM-TBM

 

ORDER

    The plaintiff's "Motion for Reconsideration" (Doc '15) is construed as a motion pursuant to Rule 60(b), Federal Rules of Civil Procedure (1), for relief from the July '14, 2008, order dismissing the complaint with prejudice. The motion fails to show good cause for reconsidering the conclusion that the Presidential $1 Coin Act of 2005 (the "Coin Act")2 neither requires nor authorizes the Secretary of the Treasury to issue a coin bearing the image of each "Constitution of "1777 President;) Tile plaintiff states (Doc. 15 at 8) that although "[a] legislators instinctively know that publicly discussing a measure, let alone introducing an Act, displacing George Washington as the first President of the United States is the true third rail of elective office,” Congress "did the very best politically, they could in the Coin Act of 2005," whose ambiguity (the plaintiff contends) allows a United States District Court to accomplish what Congress was itself unwilling to openly attempt. Even if correct, the plaintiff's theory confirms that the Coin Act imposes no clear duty (3)  on the Secretary to issue a coin bearing the image of each Constitution of 1777 President and that the mandatory and declaratory relief requested is unavailable. The motion (Doc. 15) is DENIED.
ORDERED in Tampa, Florida, on August 12, 2008.

STEVEN D. MERRYDAY 
UNITED STATES DISTRICT 
JUDGE







 
Number Ten?  John Tyler Medallion with Cyrus Griffin and Fraunces Tavern Medallion
 

1. See Teal v. Eagle Fleet Inc., 933 F.2d 341, 347 (5th Cir. '1991); '12 James Wm. Moore et al, Moore's Federal Practice § 59.30 (A motion for reconsideration filed more than 10 days after entry of judgment is treated as a motion seeking relief from judgment under Rule 60(b},").
2 Pub, L No '109-145, '1'19 Stat. 2664 ("'An Act to Require the Secretary of' the Treasury to Mint Coins in Commemoration of Each of the Nation's Past Presidents and Their Spouses, Respectively, to Improve Circulation off the 51 Coin, to Create a New Bullion Coin, and for Other Purposes.").
3. See Jones v. Alexander, 6•09 F.2d 778,781 (5th Cir. '1980) ("Three elements must exist before mandamus can issue: ('1:1 the plaintiff must have a clear right to the relief, (2) the defendant must have a dear duty to act, and (3) no other adequate remedy must be available."); Group Health Inc. v. Schweiker, 549 F. Supp. '13S, 14'1 (S.D. Fla. '1982) (same}.


Name of United States District Court for the MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

CASE NUMBER:  8:08-cv-00843-SDM- TBM

STANLEY KLOS, Plaintiff,

v.                                                                                    

HENRY M. PAULSON, JR., in his capacity as Secretary of the Treasury, Defendant.

NOTICE OF APPEAL


          Notice is hereby given that Stanley L. Klos in the above named case hereby appeal to the United States Court of Appeals for the Federal Court from the orders:

1.      ORDER:  DISMISSED WITH PREJUDICE for failure to state a claim on which relief can be ORDERED in Tampa, Florida, on July 14, 2008.     AND
2.      ORDER:  Denying the Motion for Reconsideration" (Doc '15) construed by the Court as a motion pursuant to Rule 60(b), Federal Rules of Civil Procedure ORDERED in Tampa, Florida, on August 12, 2008.                      


Dated:  August 12, 2008                                      
                                                                                   Stanley L. Klos
                                                                                    Suite 308,  2706 Alt 19
                                                                                    Palm Harbor, Florida  34683
                                                                                    Tel: 727-771-1776
                                                                                     Fax: 813-200-1820
                                                                                     coin@uspresidency.com




UNITED STATES COURT OF APPEALS
ELEVENETH CIRCUIT
56th Forsyth Street, NW
Atlanta, Georgia 30303

Appeal No. 08-14645-CCase No:  8:08-cv-00843-SDM-TBM

STANLEY KLOS,
Plaintiff,
v.                                                                                

HENRY M. PAULSON, JR., in his capacity
as Secretary of the Treasury,
Defendant.
_____________________________/


CERTIFICATE OF SERVICE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT


            Plaintiff, Stanley Klos, hereby certifies that on August 12, 2008, I served a copy of the attached Certificate of Interested Persons and Corporate Disclosure Statement, by First Class U.S. Mail, postage prepaid, on the following:

 

Henry M. Paulson, IN HIS CAPACITY
AS SECRETARY OF THE TREASURY
1500 Pennsylvania Ave NW
Washington, DC 20220

Henry M. Paulson, IN HIS CAPACITY
AS SECRETARY OF THE TREASURY
C/O Attorney General of the United States
10th and Pennsylvania Avenue NW
Washington, DC 20530

Henry M. Paulson, IN HIS CAPACITY
AS SECRETARY OF THE TREASURY
C/O Civil Process Clerk
Office of US Attorney, Middle District of Florida
400 North Tampa Street, Suite 3200
Tampa, Florida 33602

JENNIFER W. CORINIS, Asst. United States Attorney
United States Attorney's Office
400 North Tampa Street, Suite 3200
Tampa, Florida 33602

The Honorable Steven D. Merryday ,
United States District Judge
400 North Tampa Street
Tampa, Florida 33602

Thomas K. Kahn, Clerk
C/O Gerald Frost
US COURT OF APPEALS
ELEVENETH CIRCUIT
56th Forsyth Street, NW
Atlanta, Georgia 30303
 
                  
                                                                       
Stanley L. Klos
2706 Alternate 19, Suite 308
Palm Harbor, Florida 34683
fax: 813-200-1820
 stan@stanklos.com







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