Present: GREENBERG, PORADA, & GREEN, JJ.
Negligence, Installation of septic system. “Anti-SLAPP” Statute. Abuse of Process.
CIVIL ACTION commenced in the Superior Court Department on September 25, 2001.
A special motion to dismiss was heard by Ernest B. Murphy, J.
Robert H. D’Auria for the plaintiffs.
runoff spilling onto local roadways. Additionally, the local board of health wrote the Adamses a letter indicating that the septic system was not in compliance with regulatory requirements. The Adamses contend in their resulting suit that the corporation negligently prepared the septic design plan and that Whitman himself was negligent in his preparation of the plan and failed to properly supervise those corporate employees who did the necessary engineering work.
The Adamses made a special motion to dismiss Whitman’s counterclaim pursuant to G. L. c. 231, § 59H, the anti-SLAPP statute. They argued that since their lawsuit against Whitman was petitioning activity, it was entitled to the protection of § 59H. Wayne Adams filed two affidavits in support of the special motion, one of his own and one of Duncan Brown, an expert witness in engineering who concluded that Whitman was personally negligent in preparing and supervising implementation of the septic design plan. Whitman submitted only a memorandum in opposition to the special motion to dismiss. After a nonevidentiary hearing, a judge of the Superior Court denied the Adamses’ special motion to dismiss. Despite concluding that Whitman’s abuse of process claim was solely based on the Adamses’ petitioning activities, he ruled that the anti-SLAPP statute did not apply here because the Adamses’ claim against Whitman did not raise an issue of public concern. The judge, therefore, did not perform the rest of the analysis dictated by G. L. c. 231, § 59H. See Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 , 167-168 (1998) (Duracraft).
statute); McLarnon v. Jokisch, 431 Mass. 343 , 345-347 (2000) (again interpreting the anti-SLAPP statute to apply even where no issue of public concern was involved). We must therefore consider in our analysis whether and how the anti-SLAPP statute may apply to Whitman’s abuse of process claim. We conclude that the Adamses made a showing that Whitman’s abuse of process claim was based solely on their petitioning activity and so satisfied their burden at the first stage of the anti-SLAPP procedure. We also conclude that Whitman did not meet his burden of showing that the Adamses’ petitioning activity (filing suit against him) was devoid of arguable legal basis or reasonable factual support.
Analysis. In the Duracraft case, supra, the Supreme Judicial Court first addressed the difficulties of faithfully serving both the letter and the spirit of the anti-SLAPP statute, the genesis of which lay in the protection of conservation-minded activist citizens from harassing lawsuits by unscrupulous real estate developers. 427 Mass. at 161. See Kobrin v. Gastfriend, 443 Mass. 327 (2005). By interpreting the reach of the statute to include litigants whose private interests were equally at stake, Duracraft, supra at 164, the court reserved for future resolution the potential conflicts between the statute and accepted common-law principles. See McLarnon v. Jokisch, 431 Mass. at 347 (malicious prosecution); Office One, Inc. v. Lopez, 437 Mass. 113 , 123 (2002) (defamation). See also Matter of the Discipline of an Attorney, 442 Mass. 660 , 673-674 & n.27 (2004) (bar discipline).
activities [Note 4] alone and has no other “substantial basis.” Duracraft, 427 Mass. at 167-168. If the special movant fails to make the required showing, the challenged claim survives. However, if the showing is made, the second step is reached, in which the nonmoving party (Whitman, in this case) may preserve its claim only through showing by a preponderance of the evidence, [Note 5] based on the pleadings and affidavits, that the petitioning activity is “devoid of any reasonable factual support or any arguable basis in law,” and that “the [special movant’s] acts caused actual injury” to the nonmoving party. Fabre v. Walton, 436 Mass. 517 , 520 (2002), quoting from G. L. c. 231, § 59H.
The instant case arises in the context of the common-law tort of abuse of process, which comprises the following elements: “(1) ‘process’ was used; (2) for an ulterior or illegitimate purpose; (3) resulting in damage.” Gutierrez v. Massachusetts Bay Transp. Authy., 437 Mass. 396 , 407 (2002), S.C., 442 Mass. 1041 (2004), quoting from Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760 , 775-776 (1986). The tort has been described as usually involving a form of coercion to obtain collateral advantage not properly involved in the proceeding itself, similar to extortion. See Powers v. Leno, 24 Mass. App. Ct. 381 , 383-384 (1987), and authorities cited. It is sometimes said that “[t]he subsequent misuse of the process, though properly obtained, constitutes the misconduct for which the liability is imposed . . . .” Kelley v. Stop & Shop Cos., 26 Mass. App. Ct. 557 , 558 (1988), quoting from Restatement (Second) of Torts § 682 comment a (1977). It is immaterial to an abuse of process claim that the process was properly issued, that it was obtained in connection with a proceeding brought with probable cause, or that the proceeding terminated in favor of its proponent. Gutierrez v. Massachusetts Bay Transp. Authy., supra at 408.
whether the claim is solely “based on” the petitioning activity — has the potential to preserve a meritorious abuse of process claim where the process was properly issued and based on probable cause. In such cases, the second step of the special motion analysis — focusing on whether the special movant’s petitioning activity was “devoid of any reasonable factual support or any arguable basis in law” — would necessarily result in dismissal of the abuse of process claim. For this reason, our consideration of how the Adamses’ special motion affects Whitman’s abuse of process counterclaim focuses particularly on the first step.
The Supreme Judicial Court touched upon the relation between abuse of process and anti-SLAPP in Fabre v. Walton, 436 Mass. at 519 n.3, 522-524 & n.10. There, the court considered whether Fabre’s abuse of process claim survived Walton’s anti-SLAPP motion. Walton had obtained a protective order under G. L. c. 209A and Fabre alleged in his later abuse of process suit only that Walton obtained the c. 209A order for the “ulterior motive” of imposing on Fabre the necessity of explaining this record when applying for jobs in the future. Id. at 519, 523-524.
The Fabre court first noted the elements of an abuse of process claim, focusing on the description of the tort as involving a “subsequent misuse of the process.” Id. at 519 n.3, quoting from Kelley v. Stop & Shop Cos., 26 Mass. App. Ct. at 558. Then, discussing the first step of the special motion protocol, the court concluded that, notwithstanding Walton’s alleged motive, Fabre’s abuse of process claim was “based on” the c. 209A petition, and had no other “substantial basis,” because there was no other “conduct” of Walton complained of by Fabre. Id. at 524. [Note 6] In a footnote, the court explained that “Fabre does not claim that Walton made subsequent use of the 209A order to coerce or obtain a collateral advantage or for some other illegitimate purpose” (emphasis added). Id. at 524 n.10.
Thus, at the first stage of the special motion analysis, the key to survival of a party’s abuse of process claim seems to be whether the party relies on some other conduct by the special movant, apart from merely obtaining the process, that amounted to an affirmative, subsequent misuse of the process to further the special movant’s alleged ulterior purpose.
At first blush, one might then conclude that there is no doctrinal conflict between anti-SLAPP and abuse of process, if one is of the view that no cause of action for abuse of process is sustainable without the alleged subsequent conduct. That view finds some support in case law aside from the authorities mentioned above — perhaps most notably in dictum in Cohen v. Hurley, 20 Mass. App. Ct. 439 , 442 (1985), which quotes Dean Prosser’s comment in Prosser & Keeton, Torts § 121, at 898 (1984), that “[t]here is no liability [for abuse of process] where the defendant has done nothing more than carry out the process to its authorized conclusion, even with bad intentions.” [Note 7] There is considerable modern disagreement with Prosser’s view, however, that an additional act is always required to make out the tort. See Harper, James & Gray, Torts § 4.9, at 4:90-4:91 & n.21 (3d ed. 1996); Dobbs, Torts § 438, at 1239-1240 (2000). [Note 8] These commentators make the point that an illegitimate purpose can often be achieved without any further act beyond the obtaining of the process.
purpose of collecting a commission,” but a jury could find that the real object was to prevent the conveyance of the property to another and to secure it for the party suing for the commission); Reardon v. Sadd, 262 Mass. 345 (1928) (recognizing an abuse of process claim for an attachment that a jury could find was intended to coerce a factory owner to settle a claim against her on a debt that the claimant knew was incurred by a different party); Jacoby v. Spector, 292 Mass. 366 , 369 (1935) (allowing an abuse of process claim where a furniture company’s repeated wage attachments exerted coercion on a consumer to sign a wage assignment contract to pay for furniture he attempted to refuse delivery of); Carroll v. Gillespie, 14 Mass. App. Ct. 12 , 26 (1982) (sustaining an abuse of process claim where a car repair shop owner swore out a criminal fraud and forgery complaint against a customer for the purpose of pressuring her to pay a repair bill owed him); American Velodur Metal, Inc. v. Schinabeck, 20 Mass. App. Ct. 460 , 462, 469-470 (1985), cert. denied, 475 U.S. 1018 (1986) (evidence supported elements of an abuse of process claim where a lawsuit for possession of a house, filed by a corporation controlled by a husband, necessarily exerted pressure on his wife to settle her divorce proceedings on terms more favorable to the husband).
Consequently, we may conclude that our decisions are not particularly clear on the question of what constitutes “misuse” of process. It is true, however, that the cases support the idea that initiating process can simultaneously constitute abuse of that process in certain circumstances.
Similarly, the instant case does not involve facts where the Adamses’ negligence claim alone could provide the legal basis for a trier of fact to sustain an abuse of process claim. Therefore, we conclude that the abuse of process claim that Whitman filed in response was solely “based on” the Adamses’ petitioning activity of filing suit and had no other basis (such as actionable misuse of that process). The case would be different if the Adamses’ negligence claim alone provided viable grounds for an abuse of process claim.
devoid of any reasonable factual support or any arguable basis in law and (2) the moving party’s acts caused actual injury to the responding party.” G. L. c. 231, § 59H. Although the trial court did not perform this portion of the anti-SLAPP analysis, we reach it on appeal since only one conclusion is possible on this record. As mentioned previously, Whitman was required to meet a preponderance of evidence standard in his showings. See Baker v. Parsons, 434 Mass. 543 , 553-554 (2001).
Whitman could not have met his burden through his filings. In his initial answer and counterclaim to the negligence suit, and in his memorandum in opposition to the special motion, he stated only that that the negligence claim was brought to “injure and harass” him, that he acted solely as an employee of the corporation, that the Adamses’s expert was motivated by personal bias, and that “the Plaintiffs’ expert has misinterpreted the applicable code relating to this matter and any opinion will be duly refuted.” These allegations were not submitted in a verified pleading or affidavit and are merely conclusory. We need not reach the “injury” showing of step two, because of our conclusion that these allegations could not meet Whitman’s burden of showing by a preponderance of the evidence that the Adamses’ suit was devoid of any reasonable factual support or arguable legal basis. [Note 11] Therefore, we determine that the Adamses are entitled to allowance of their special motion to dismiss the abuse of process counterclaim.
The order denying the special motion is reversed, and the case is remanded for entry of a new order consistent with this opinion and including an award of reasonable attorney’s fees and costs pursuant to G. L. c. 231, § 59H. Within fifteen days of issuance of the rescript in this matter, the Adamses may also apply to the panel who decided this appeal for an award of appellate attorney’s fees and costs, as discussed in Fabre v. Walton, 441 Mass. 9 , 10-11 (2004).
[Note 1] Terri L. Adams.
[Note 2] The legal action that resulted in the order we now review began with the Adamses’ multi-count complaint against Wesley G. Price; Phyllis L. Price; Kevin Lashua; Bill’s Sewer Service, Inc.; Whitman & Bingham Associates, Inc.; and Stephen Whitman.
[Note 3] We review the judge’s order, even though interlocutory, because this case presents a situation similar to that in Fabre v. Walton, 436 Mass. 517 , 521-522 (2002), where the Supreme Judicial Court held that a special movant had the right to an interlocutory appeal from the denial of her special motion to dismiss. Contrast Baker v. Hobson, ante 659, 663 (2004), where the plaintiff sought interlocutory appeal of the denial of a special motion to dismiss a counterclaim against him but also faced other counterclaims that he had not moved to dismiss pursuant to the anti-SLAPP statute.
[Note 4] As recently explained by the Supreme Judicial Court, “the right of petition protected in the anti-SLAPP statute is that right enumerated in the First Amendment to the United States Constitution . . . and in art. 19 of the Massachusetts Declaration of Rights . . . . The right of petition contemplated by the Legislature is thus one in which a party seeks some redress from the government.” Kobrin v. Gastfriend, 443 Mass. at 333.
[Note 5] See Baker v. Parsons, 434 Mass. 543 , 553-554 (2001).
[Note 6] In Office One, Inc. v. Lopez, 437 Mass. at 122, the court, relying on this same portion of Fabre in a case not involving an abuse of process claim, stated that “the motive behind the petitioning activity is irrelevant at this initial stage [of the special motion analysis].” The court explained that Fabre required conduct on the part of the special movant, beyond the petitioning activity, for the nonmovant to succeed on the first anti-SLAPP step. Id.
[Note 7] In our view the statement is dictum in regard to the additional act requirement; the abuse of process claim in Cohen was faulty because no ulterior motive was involved. See Cohen v. Hurley, 20 Mass. App. Ct. at 442.
[Note 8] Although Prosser & Keeton, Torts § 121, at 898 n.14 (1984), cites Elliott v. Warwick Stores, Inc., 329 Mass. 406 (1952), for the proposition that Massachusetts requires an additional act, the failure of the abuse of process claim in that case seems to turn on the lack of ulterior motive rather than the need for additional conduct. See id. at 408-409. See also Harper, James & Gray, Torts § 4.9, at 4:91 n.21 (3d ed. 1996).
[Note 9] Such an approach has the important advantage of not effectively abolishing a subcategory of the tort of abuse of process. As discussed, Massachusetts courts have long allowed abuse of process claims in some circumstances where the only conduct complained of was the initiation of process. Since an abuse of process claim can be made out in a situation where the process was validly obtained on probable cause, such a claim would surely be dismissed were it subjected to the anti-SLAPP statute’s second-stage requirement that the claimant show the petitioning activity to be “devoid of any reasonable factual support or any arguable basis in law.” The Duracraft court construed the statute as it did, in part, to avoid the problem that the “the statute on its face alters procedural and substantive law in a sweeping way,” at least beyond the mischief the Legislature intended to reach and beyond any intent the Legislature manifested to change laws. Duracraft, 427 Mass. at 167. This approach is consistent with the settled rule of statutory construction that “[a] statute is not to be interpreted as effecting a material change in or a repeal of the common law unless the intent to do so is clearly expressed.” Queler v. Skowron, 438 Mass. 304 , 312 (2002), quoting from Pineo v. White, 320 Mass. 487 , 491 (1946).
[Note 10] The Supreme Judicial Court refused to apply the anti-SLAPP statute in a recent anti-SLAPP decision despite the fact that the only conduct complained of in that case was assumed to be petitioning activity. Matter of the Discipline of an Attorney, 442 Mass. 660 (2004), involved a disciplinary proceeding against a lawyer who sent a fire marshal a deposition transcript tending to show that one of the investigators working for the fire marshal was incompetent. Bar counsel alleged, inter alia, that the lawyer unethically sent the information in order to influence the testimony of the fire investigator in a pending case. Id. at 664-665. Claiming that his conduct was petitioning activity intended to protect the public and his client’s future interest, the lawyer moved to dismiss the proceeding under the anti-SLAPP statute. Id. at 673-674. Despite accepting that “[t]he only conduct ever challenged by bar counsel is the [lawyer’s] sending of the deposition transcript,” id. at 664, which it assumed was petitioning activity, the court refused to apply the anti-SLAPP statute. Id. at 673-674. “[T]he less than careful means of communication employed by the [lawyer],” the court observed, “left his conduct at least open to the interpretation urged by bar counsel, and bar counsel thus had a ‘substantial basis’ for bringing disciplinary action.” Id. at 674.
[Note 11] Our decision deals only with the pleadings and affidavits placed on the record for the anti-SLAPP motion. It does not indicate anything as to the likelihood of success of the Adamses’ underlying negligence claim.


Ben Vasseghi, in the custody of the Federal Bureau of Prisons ("BOP") and currently incarcerated in the Federal Medical Center in Lexington, Kentucky ("FMC-Lexington"), filed a prisoner pro se pleading that was construed as a Complaint, filed pursuant to 28 U.S.C. § 1331. Plaintiff complained of sanctions imposed on him for a prison disciplinary infraction, purportedly in violation of his rights under the Fifth Amendment to the U.S. Constitution, and he sought injunctive relief. For the reasons detailed in the Memorandum Opinion and Order entered on January 6, 2010 (R. 7), Mr. Vasseghi's complaint, construed as having been filed under 28 U.S.C. § 1331, was dismissed without prejudice to his right to renew his claims in a habeas petition filed pursuant to 28 U.S.C. § 2241, after he had pursued and exhausted the administrative remedies available to him through the BOP's established mechanism for filing an administrative remedy and appealing the denial thereof, if necessary.
2. A motion styled "Motion To Reactivate Pending Habeas Corpus Pursuant To 28 USC § 2241 or Motion For Return Or All Pertinent Exhibits That Are Needed To Re-File His Habeas Corpus" (R. 12).
On 18 August 2009, at 8:26 PM, after resetting the Perimeter Fence Alarm twice in Zone 12, I zoomed security camera 12 covering the recreational yard in on Zone 12. I then observed inmate Vasseghi #54428-019 reach out and drag his right hand across the Perimeter Fence in Zone 12, setting off the Perimeter Fence Alarm once again. Keeping the camera on inmate Vasseghi, I then notified the Operations Lieutenant, both Perimeter Patrol vehicles, and the Outside REC Officer. Once relieved from the Control Center I went to the Lieutenant's and identified inmate Vasseghi # 54428-019 as the inmate dragging his hand across the Perimeter Fence and setting off the Perimeter Fence Alarm.
See Incident Report (Attachment to Vasseghi's "Motion To Leave And Supercede Any And All Previous Motions, And To Vacate All Charges Herein, And To Restore Plaintiff's Record (R. 10).
The Incident Report was delivered to Vasseghi on August 18, 2009, at 9:45 p.m. The Incident Report was referred to the Unit Disciplinary Committee ("UDC") for a hearing. On August 20, 2009, the UDC held a hearing on the charge in the Incident Report and referred the charge to the Disciplinary Hearing Officer ("DHO") for further hearing because the sanctions for 200 level Codes cannot be imposed at the UDC level. On August 27, 2009, DHO Timothy Smart conducted the DHO hearing, heard testimony from various witnesses, and found Vasseghi guilty of the charged offense. The DHO sanctioned Vasseghi to thirty (30) days Disciplinary Segregation, loss of twenty-seven (27) days of Good Time Credit ("GTC"), Loss of Visiting Privileges for 180 days, and the Loss of Telephone Privileges for 180 days.
The various levels of BOP offenses are listed in 28 C.F.R. § 541.13, Table 3. The most serious offenses (Greatest Category) are listed in Code Nos. 100-199; the next level of offenses (High Category) are listed in Code Nos. 200-299; the next level of offenses (Moderate Category) are listed in Code Nos. 300-399; and the final and lowest level of offenses (Low Moderate Category) are listed in Code Nos. 400-499.
A review of this matter reflects that the Regional Director adequately addressed your concerns. The Regional Director found that the required disciplinary procedures were substantially followed, the evidence supports the DHO's findings, and the sanctions were appropriate for the offense. We concur with those findings.
Accordingly, your appeal is denied.
See Administrative Remedy No. 570417-012 (Attachment to Vasseghi's "Motion To Leave And Supercede Any And All Previous Motions, And To Vacate All Charges Herein, And To Restore Plaintiff's Record (R. 10).
Subsequent to the dismissal of this action on January 6, 2010, upon the Court's consideration of this matter as a civil rights complaint filed pursuant to 28 U.S.C. § 1331, Vasseghi has pursued and exhausted his administrative remedies relative to the Incident Report and resulting disciplinary conviction in question. As noted above, on January 21, 2011, his administrative remedy appeal was denied at the final level of review.
Although not captioned as such, the Court construes Vasseghi's motion styled "Motion To Leave And Supercede Any And All Previous Motions, And To Vacate All Charges Herein, And To Restore Plaintiff's Record" (R. 10) and the attachments thereto as a habeas petition filed pursuant to 28 U.S.C. § 2241 that is subject to the initial screening required by the Prison Litigation Reform Act ("PLRA").
The Court reviews a § 2241 petition to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing 28 U.S.C. § 2254 Cases; (applicable to § 2241 petitions under Rule 1(b)). See, e.g., Patton v. Fenton, 491 F.Supp. 156, 158-59 (M.D. Pa.1979); see also 28 U.S.C. § 2243. The Court may summarily dismiss a petition if it appears from the face thereof that the petitioner is not entitled to relief. See 28 U.S.C. § 2243; Blevins v. Lamanna, 23 F. App'x 216, 218 (6th Cir. 2001); Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970).
1. The Clerk of the Court is directed to amend/correct the CM/ECF docket sheet in this case to reflect that the correct spelling of Plaintiff's surname is Vasseghi, not Vesseghi.
2. Vasseghi's motion styled "Motion To Leave And Supercede Any And All Previous Motions, And To Vacate All Charges Herein, And To Restore Plaintiff's Record" (R. 10) is DENIED.
3. Pursuant to the Court's construction of Vasseghi's motion styled "Motion To Leave And Supercede Any And All Previous Motions, And To Vacate All Charges Herein, And To Restore Plaintiff's Record" (R. 10), as a Petition for a Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, the Clerk of the Court is directed to extract this motion (R. 10) from this record and to designate this motion (R. 10) as a new habeas petition filed pursuant to 28 U.S.C. § 2241, with a new civil action number. Ben Vasseghi shall be designated as the Petitioner, and Vasseghi's custodian, Deborah A. Hickey, Warden at FMC-Lexington, shall be designated as the Respondent.
4. Vasseghi's motion styled "Motion To Reactivate Pending Habeas Corpus Pursuant To 28 USC § 2241 or Motion For Return Or All Pertinent Exhibits That Are Needed To Re-File His Habeas Corpus" (R. 12) is DENIED AS MOOT.
5. Within thirty (30) days of the date of this Order, Vasseghi is directed to pay the $5.00 filing fee for the filing of a habeas corpus petition. Failure to pay the filing fee may result in the dismissal of this action.
6. Upon the payment of the filing fee, this matter shall be submitted for the required screening.


text:
On August 30, 2018, the Ontario Court of Appeal released six highly-anticipated decisions interpreting Ontario’s anti-SLAPP [Strategic Litigation Against Public Participation] legislation.[i] Section 137.1 of the Courts of Justice Act, in force since the fall of 2015, allows a defendant in a proceeding to bring a motion at any time after the proceeding has been commenced to have the action dismissed. This tool is commonly used in defamation cases. The Court of Appeal has clarified the application of the two-part test under s. 137.1(3) and (4).
The Court of Appeal held that in assessing the “merits-based hurdle” (s. 137.1(4)(a)), a judge must avoid taking a deep dive into the ultimate merits of the claim and the defences. Rather, the judge must determine in a preliminary way whether a trier of fact could reasonably conclude that the claim has a real chance of success, and that none of the defences advanced would succeed. The applicable standard of proof for both inquiries is the balance of probabilities.
Of particular interest is the Court’s interpretation of the “public interest hurdle” (s. 137.1(4)(b)), which involves a balancing test of harm. Justice Doherty described that provision as “the heart of Ontario’s Anti-SLAPP legislation. The section declares that some claims that target expression on matters of public interest are properly terminated on a s. 137.1 motion, even though they could succeed on their merits at trial.”[ii] The Court held that to demonstrate harm, a plaintiff must show a causal link between the impugned expression and the alleged damages, and that bald allegations of damages in pleadings or affidavits will not be sufficient.
Aside from the anti-SLAPP legislation, more change could be coming to Ontario’s defamation laws. The Law Commission of Ontario (LCO) is currently undertaking a comprehensive review of the province’s defamation law. As the LCO explains, “the Defamation in the Internet Age project considers whether or how defamation law should be reformed in light of fast-moving and far-reaching developments in law, technology and social values.”[v] The project’s first phase of consultation is now over and the LCO is preparing an interim report with draft law reform recommendations. The release of the interim report will be followed by further consultations.
In the coming months, defamation law junkies will have lots to watch for: more anti-SLAPP appeals being heard at the Court of Appeal on February 11-15, 2019, the Lachaux appeal at the UK Supreme Court, and the LCO’s draft law reform recommendations. Stay tuned!
This article originally appeared in the October 2018 edition of The Advocates’ Society’s Keeping Tabs.
[i] 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 [Pointes]; Able Translations Ltd. v. Express International Translation Inc., 2018 ONCA 690; Armstrong v. Corus Entertainment Inc., 2018 ONCA 689 [Corus]; Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686; Platnick v. Bent, 2018 ONCA 687; Veneruzzo v. Storey, 2018 ONCA 688.
[ii] Pointes, supra note 1 at para. 86.
[iii] Corus, supra note 1 at para. 90.
[iv] See UK Supreme Court, Lachaux (Respondent) v. Independent Print Limited and another (Appellant), Case Details, online: <https://www.supremecourt.uk/cases/uksc-2017-0175.html>.
[v] Law Commission of Ontario, “Defamation in the Internet Age: Consultation Paper” (November 2017), online: <https://www.lco-cdo.org/en/our-current-projects/defamation-law-in-the-internet-age/consultation-paper/>.

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DID CONGRESS & TRUMP PROVIDE THE ULTIMATE TAX REMEDY? HIDDEN IN THE RULES?
– by expanding the judicial authority beyond that which is constitutionally authorized, to enable the federal judiciary to constitutionally usurp the legislative authority of the Congress, through the judicial enforcement of only the perverted judicial Fabian opinions they issue, in place of the actual written constitutional tax law that is authorized and exists.
What ? You may say – that’s crazy. What the hell are you talking about ?
It’s the same tax it’s always been ! There’s nothing new in the law that could do that ! Yea, – that’s right, it’s the same income tax law that it has always been, and now they have admitted it on the Congressional Record, and their world is about to change, – well, actually, implode.
– but any honest lawyer will tell you (after reading this) that everything you are about to read (and have read up to this point in this article) is irrefutably true.
FACT: For the last 60 years the IRS has been issuing income tax collection correspondence to Americans asserting that American citizens owe the payment of an income tax on their work, because of the adoption of the 16th Amendment. This claim to legal authority is all over their website; it is in their “frivolous Arguments” propaganda publications, where they repeatedly assert the income taxing authority under the 16th Amendment, and label as frivolous any reference made to the limitations on the taxing powers imposed under Article I of the Constitution; and, it is in the pleadings made on the record of the court by the United States as a plaintiff, in every tax case prosecuted in the federal courts in the last 30 years.
FACT: The Department of Justice attorneys argue in every single income tax case prosecuted in the federal courts, that the income tax is owed by the individual defendant as a function of the 16th Amendment alone, without use or need of any “applicability” of the authorized indirect Article I, Section 8, impost, duty and excise taxing powers.
FACT: The 16th Amendment has no enabling enforcement clause in it, that would constitutionally authorizes the U.S. Congress to write any law to enforce any power alleged newly created or authorized under authority of the Amendment alone.
FACT: There are Amendments to the Constitution, both before and after the 16th Amendment, that do have and clearly contain an enabling enforcement clause within them, irrefutably proving the absence within the Amendment, of such alleged grant of any new enforceable power, is intentional.
” ‘We think that they were used comprehensively, to cover customs and excise duties imposed on importation, consumption, manufacture, and sale of certain commodities, privileges, particular business transactions, vocations, occupations, and the like.’ Duties and imposts are terms commonly applied to levies made by governments on the importation or exportation of commodities. Excises are ‘taxes laid upon the manufacture, sale, or consumption of commodities within the country, upon licenses to pursue certain occupations, and upon corporate privileges.‘ Cooley, Const. Lim. 7th ed. 680. The tax under consideration, as we have construed the statute, may be described as an excise upon the particular privilege of doing business in a corporate capacity, i. e., with the advantages which arise from corporate or quasi corporate organization; or, when applied to insurance companies, for doing the business of such companies. As was said in the Thomas Case, 192 U. S. supra, the requirement to pay such taxes involves the exercise of privileges, and the element of absolute and unavoidable demand is lacking. If business is not done in the manner described in the statute, no tax is payable.
“The [income] tax being an excise, its imposition must conform to the canon of uniformity. There has been no departure from this requirement. According to the settled doctrine the uniformity exacted is geographical, not intrinsic. Knowlton v. Moore, supra, p. 178 U. S. 83; Flint v. Stone Tracy Co., supra, p. 220 U. S. 158; Billings v. United States, 232 U. S. 261, 232 U. S. 282; Stellwagen v. Clum, 245 U. S. 605, 245 U. S. 613; LaBelle Iron Works v. United States, 256 U. S. 377, 256 U. S. 392; Poe v. Seaborn, 282 U. S. 101, 282 U. S. 117; Wright v. Vinton Branch Mountain Trust Bank, 300 U. S. 440.” Steward Mach. Co. v. Collector, 301 U.S. 548 (1937), at 583 “Whether the tax is to be classified as an “excise” is in truth not of critical importance. If not that, it is an “impost” (Pollock v. Farmers’ Loan & Trust Co., 158 U. S. 601, 158 U. S. 622, 158 U. S. 625; Pacific Insurance Co. v. Soble, 7 Wall. 433, 74 U. S. 445), or a “duty” (Veazie Bank v. Fenno, 8 Wall. 533, 75 U. S. 546, 75 U. S. 547; Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429, 157 U.
1 Again, Flint v. Stone Tracy Co. is controlling and Constitutional law, having been cited and followed over 600 times by virtually every court as the authoritative definition of the scope of excise taxing power.
So, the granted taxing powers are conclusively defined within the U.S. Constitution: “Mr. Chief Justice Chase in The License Tax Cases, 5 Wall. 462, 72 U. S. 471, when he said: “It is true that the power of Congress to tax is a very extensive power. It is given in the Constitution, with only one exception and only two qualifications. Congress cannot tax exports, and it must impose direct taxes by the rule of apportionment, and indirect taxes by the rule of uniformity.
“The act now under consideration does not impose direct taxation upon property solely because of its ownership, but the tax is within the class which Congress is authorized to lay and collect under article 1, [section] 8, clause 1 of the Constitution, and described generally as taxes, duties, imposts, and excises, upon which the limitation is that they shall be uniform throughout the United States. Within the category of indirect taxation, as we shall have further occasion to show, is embraced a tax upon business done in a corporate capacity, which is the subject-matter of the [income] tax imposed in the act under consideration. The Pollock Case construed the tax there levied as direct, because it was imposed upon property simply because of its ownership. In the present case the tax is not payable unless there be a carrying on or doing of business in the designated capacity, and this is made the occasion for the tax, measured by the standard prescribed. The difference between the acts is not merely nominal, but rests upon substantial differences between the mere ownership of property and the actual doing of business in a certain way.” Flint v. Stone Tracy Co. , 220 US 107, 150 (1911) Which is repeatedly supported: “As has been repeatedly remarked, the corporation tax act of 1909 was not intended to be and is not, in any proper sense, an income tax law. This court had decided in the Pollock Case that the income tax law of 1894 amounted in effect to a direct tax upon property, and was invalid because not apportioned according to populations, as prescribed by the Constitution. The act of 1909 avoided this difficulty by imposing not an income tax, but an excise tax upon the conduct of business in a corporate capacity, measuring, however, the amount of tax by the income of the corporation, with certain qualifications prescribed by the act itself. Flint v. Stone Tracy Co. 220 U.S. 107 , 55 L. ed. 389, 31 Sup. Ct. Rep. 342, Ann. Cas. 1912 B, 1312; McCoach v. Minehill & S. H. R. Co. 228 U.S. 295 , 57 L. ed. 842, 33 Sup. Ct. Rep. 419; United States v. Whitridge (decided at this term, 231 U.S. 144 , 58 L. ed. –, 34 Sup. Ct. Rep. 24.” Stratton’s, supra at 414 So imposts and duties are taxes on imported and exported goods, i.e. : commodities and articles of commerce that are imported into, and or exported from, the United States of America. Imposts are also taxes on foreign “persons” and their activities in the United States (foreign individuals & companies, & organized operations like a foreign trust, charity, etc.). Imposts and duties are also taxes, where imposed, on persons in the U.S. territories and possessions, and on America citizens who are living and working in a foreign country under a tax treaty with the United States that allows the federal taxation of the American persons in that foreign country, under the active tax treaty.
So taxation, by impost and duty, by definition, fundamentally does not reach the labors of the American people conducted in the fifty states, where the labor does not involve any import or export, or other foreign activity. And Excise taxes are now accepted as being constitutionally defined by both law and precedent (over 600 times) as: “taxes laid upon the manufacture, sale or consumption of commodities within the country, upon licenses to pursue certain occupations, and upon corporate privileges … “.
But Title 15 U.S.C. Section 17, plainly and clearly states that: “The labor of a human being is not a commodity or article of commerce… “. Under the U.S. Constitution this law removes “the (domestic) labor of a human being (American citizens)” from subjectivity to any and all taxation by excise under Article I, Section 8.
This is of course why the United States’ IRS, DOJ, and the entire federal judiciary (at this point) PREVIOUSLY have had to claim in court for 50 years that – it is the 16th Amendment that authorizes the income tax, and not Article I, Section 8. Thus, under Article I of the Constitution, there is an admitted total lack of subjectivity of the citizens to any and all impost, duty or excise taxation on Labor, i.e.: the indirect taxation of the citizen’s labor, or a tax upon the exercise of his or her Right to Work resulting in the payment of “salary” or “wages“, does not apply to citizens, because it is not statutorily authorized, now made enforceable, as it is fundamentally outside of the legal reach, and scope of legal effect, of all of the granted Constitutional authorities to tax indirectly under authority of Article I, Section 8, clause 1 of the U.S. Constitution.
The reason why this is so important to understand, is because this basic information, concerning the proper, limited, application and enforcement of the constitutional, and constitutionally granted, powers to tax, is essential in properly and fully understanding the legal issue of the limited subject-matter jurisdiction of the federal courts that exists with respect to the taxation of the individual citizens. A proper and complete understanding of this legal issue, immediately leads to the realization that there is no constitutionally granted subject-matter jurisdiction that can be taken over a civil action to adjudicate and or enforce the claims that are alleged by the United States in any Complaint filed in a legal action that is filed in the federal courts to pursue the enforcement of the payment of a personal income tax against an individual American citizen as defendant. In the United States of America, under the Constitution of the United States of America, our federal courts are courts of only limited, specifically enumerated, constitutionally granted, powers, that only exist as written in the law. The courts cannot enforce ideas, or a philosophy, or custom or habit, or ritual, or beliefs, or even common sense.
first: – the Constitution grants a specific power to be exercised by the Congress (as is done in Article I, Section 8); and second: the Constitution specifically grants the authority to the Congress to write law (as is done in Article I, Section 8, clause 18), with specific applicability to the enforcement of the power(s) granted, that was, or were, exercised in operational practice (enforcement) by the government (IRS).
(3) a specific statute must be legislatively enacted by an authorized Congress, with specific application to the enforcement of the specific power alleged granted and exercised in (#1) above, and made enforceable with authorized law under (#2) above.
These fundamental elements of constitutional law, controlling the ability of a federal court to lawfully take a granted subject-matter jurisdiction over a legal claim made by complainant (like the United States) in the federal district court, combined with the irrefutable lack of any enabling enforcement clause that exists in the 16th Amendment as adopted, make the United States’ claims in the courts that the 16th Amendment is the foundational authority for the enforcement of the income tax against the individual citizens, on the mere basis of being a “person” with alleged “gross income”, appear dubious at best, and a complete and total lie at worst, as this lack of granted constitutional authority to write law under the 16th Amendment also explains the alleged tax-protestors’ claims of the last 50 years, that – if the tax is under the 16th Amendment, then the tax must be voluntary, as no law is constitutionally authorized to be written by Congress, and therefore no law can exist, or does exist, under the 16th Amendment that effects the income of the citizens directly, without the underlying foundational use of the impost, duty and excise taxing authorities of Article I first being made applicable.
– which does not constitute an unconstitutionally unapportioned direct tax. The Supreme Court plainly held in 1916, in the Brushaber v. Union Pacific RR Co., 240 US 1 (1916) and Stanton v. Baltic Mining Co., 240 U.S. 103 (1916) cases, that the income tax is an indirect tax under Article I, and is not a direct tax under the 16th Amendment.
Stanton v. Baltic Mining Co., 240 U.S. 103, 112-13 (1916) “It is clear on the face of this text that it does not purport to confer power to levy income taxes in a generic sense – an authority already possessed [under Article I, Section 8] and never questioned – or to limit and distinguish between one kind of income taxes and another, but that the whole purpose of the Amendment was to relieve all income taxes when imposed from apportionment from a consideration of the source whence the income was derived.” Brushaber, supra, at 17-8 “The various propositions are so intermingled as to cause it to be difficult to classify them. We are of opinion, however, that the confusion is not inherent, but rather arises from the conclusion that the Sixteenth Amendment provides for a hitherto unknown power of taxation, that is, a power to levy an income tax which although direct should not be subject to the regulation of apportionment applicable to all other direct taxes.
“The right to follow any of the common occupations of life is an inalienable right; it was formulated as such under the phrase “pursuit of happiness” in the Declaration of Independence, which commenced with the fundamental proposition that “all men are created equal, that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.” This right is a large ingredient in the civil liberty of the citizen.” “Included in the right of personal liberty and the right of private property partaking of a nature of each- is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long established constitutional sense.” Justice Pitney in Coppage v. Kansas, 236 U.S. 1, 14, 59 L.Ed. 441, L.R.A. 1915C, 960, 35 S.Ct.Rep. 240 (1915) “But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth ‘may be a government of laws and not of men.’ For, the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) But the lower federal district and circuit courts have reversed this clear indirect “income tax” holding that was made by the Supreme Court in 1916, by invoking as controlling, not these true, controlling Supreme Court cases cited above (Brushaber & Stanton), but instead they invoke one of their own contradictory inferior opinions from the below list of inferior circuit court decisions that openly simply declare, erroneously (and obviously so), that the federal personal income tax is authorized by the 16th Amendment as a direct unapportioned tax that is laid on all of the income of all persons.
In re Becraft, 885 F.2d 547, 548 (9th Cir. 1989), (which simply cites to Lovell and Parker to make its assertions). And so, as a result of the federal courts improperly using for the last 40 years these inferior, isolated, self-circular court decisions (upholding the direct unapportioned taxation of income under the 16th Amendment), actually reversing the Supreme Court’s true holding (upholding only indirect uniform taxation of income under Article I, Section 8), the federal personal income tax has been enforced for 60 years in the lower federal Tax Court and district and circuit courts, erroneously, as a direct unapportioned tax, in blatant violation of the prohibition on such direct taxation that is still constitutionally prohibited by Article I, Section 2, clause 3 and Article I, Section 9, clause 4 of the U.S. Constitution.
– the new tax law H.R. 1 (Dec. 2017), made effective as law as of January 1, 2018. You see in 2011 the United States Congress passed another new law directly affecting the new tax law, requiring that all legislative Bills brought forward to the House floor for debate, contain within them a plain and clear statement identifying and declaring the alleged constitutional clause with the grant of authority that serves as the constitutional foundation to the congressional claim of a granted authority to write law with respect to the administration of the powers claimed therein, and proposed exercised under the new legislation.
So, what did they put in the Constitutional Authority Statement for H.R. 1, the new income tax law now in effect ? Did they actually write “the 16th Amendment” was the authority, as argued for 50 years, or something else ? NO! It’s either there or it isn’t.
First, it should be noted that the re-enactment of Title 26 U.S.C. (I.R.C.) Section 1, as done in H.R. 1, of course constitutes a re-enactment of exactly the same income taxing powers, and scheme of taxation (or lack thereof), as previously existed under the previous version of the income tax law, i.e. : the 1986 IRC code provisions of Title 26 U.S.C. (IRC) Section 1. Congress has simply adjusted the number of tax-brackets from seven to four, with different earnings thresholds and tax-rates associated with each of the four new tax-brackets, and with a new set of allowed or disallowed deductions and exemptions for everyone.
But, it is basically and essentially, an undeniable reimplementation of exactly the same scheme of graduated, bracketed, gross-income taxation (under IRC § 61) of taxable income (IRC § 63), as that (scheme of taxation) which has existed since 1913.
Supposedly, under this new law, nothing substantial or constitutionally foundational is believed to have been changed concerning or controlling the fundamental taxing power exercised, to tax income, and everything about the scheme is basically left unchanged, schematically identically the same as before (since the recodification of the tax law in 1986, which was also recodified (a new written version was created) in 1939 and 1954).
As never before…It now plainly states that the Constitutional Authority for the enactment of the new income tax law enacted under H.R. 1, is not the 16th Amendment at all, but relies solely on “ARTICLE I, SECTION 8, CLAUSE 1 of the Constitution of the United States.” for its authority. If the 16th amendment was intended as the authority, it would have been listed. It is NOT!
Uh-oh! You mean it isn’t the 16th Amendment after all? … and that claim of constitutional authority under the 16th Amendment as legal foundation to sustain the imposition and enforcement of the personal income tax, can never be made by the IRS, or in court by the United States attorneys, again, – ever !! In neither civil, nor criminal, tax prosecutions?
Finally, the true and correct constitutional authority for the federal personal income tax is plainly and clearly specified in the law, on the Congressional House record, as being established under ONLY Article I, Section 8, clause 1 of the U.S. Constitution, which contains only the grant of the required constitutional authority to tax, indirectly, by impost, duty and excise, which powers, by law (Title 15 USC Sec. 17) do not lawfully reach the labors or income of the American People with force of law though the proper and lawful invocation and enforcement upon individual persons of only the granted indirect taxing powers.
– completely strips the IRS, the DOJ, and the federal judiciary of all of their lawful ability to legally enforce on American citizens after January 1st, 2018, the federal personal income tax in the federal courts as it has been practiced since 1945.
Its’ over. The IRS, the DOJ, the federal judiciary are all eviscerated. The monstrous income tax FRAUD perpetrated by the federal courts on the American People is fully exposed now, naked to the world, and the behavior and opinions of the federal judiciary are exposed as nothing but the treasonous sedition they have always been. i.e. : communistic and not constitutional. Repugnant, disgusting, corrupted, polluted, perverted, ultra vires judicial behavior and opinions, all committed for sixty years outside of the granted constitutional authority that exists for the court to lawfully act under, is all exposed. Naked to the world.
– for there is no law because none is authorized, and there is no enforceable direct tax or taxing power conferred under the 16th Amendment as previously used and deceptively claimed, because no such power is constitutionally made enforceable against the individual ‘person’, as opposed to one of the “several states”.
All American citizens, in all 50 states, are all now EXEMPT – as they always were, but is now clarified by constitutional as now clarified by congress), from any required payment or withholding of the federal personal income tax from their paycheck, earned at their place of employment in one of the fifty states, and everyone should therefore now claim EXEMPT on their W-4, as provided in law thereupon, under the supremacy-clause exemption from withholding, that is made at Title 26 USC (IRC) Section 3402(n), for informed employees to claim.
– like the IRS, the DOJ, the federal judiciary, or even the “United States of America” (as a plaintiff in the courts), without there first being the clear applicability of some impost, duty, or excise tax to measure, that lawfully and properly taxes the underlying taxable (business, commodity, or trade based) activity from which the income is derived.
– but the terms are specifically included in IRC Section 1441(b), wherever “wages” or “salary” are earned by the non-resident alien person that is identified in law under IRC Section 1441(a). And, since it is only the foreign person (Follow this LINK and CLICK on Person see the definition – and also look up definition of individual in the code – it’s likely not you), who is made subject under the provisions of IRC Sections 7701(a)(16), to the collection of the federal personal income tax imposed in the code sections of Subtitle A (Chapters 1-6) of Title 26, which is where the original 1913 income tax laws are found in today’s law.
Subtitle A is the body of law that was enacted by Congress in 1913 as the federal personal income tax law, enacted under the original income tax legislation of the Underwood-Simmons Tariff Act of Oct. 3, 1913, then it has now become impossible (under the new H.R. 1 income tax law, ONLY under Article I, Section 8, authorities) for any party or person to lawfully withhold or collect any federal income tax from the payments made to an informed American citizen in one of the fifty states!
Oh, by the way, a Tariff, as enacted within the Underwood-Simmons Tariff Act of Oct. 3, 1913, is one form of an impost, which taxing power, when exercised in the 50 states, is limited in constitutional operation to the taxation of only foreign persons and imported foreign goods, commodities, and other taxable “articles of commerce“. An impost, in the form of an enacted tariff, has no internal application to the domestic activity of American citizens conducted by Right within the fifty states, without any involvement with foreign goods or foreign persons.
1. Completely disemboweling and destroying the I.R.S.’ current personal income tax collection and enforcement practices and operations, by removing them entirely and completely from all legitimate constitutional authority to act to enforce the direct taxation of income under the 16th Amendment, as practiced for the last 60 years; Exposing 60 years of IRS THEFT & UNLAWFUL CONVERSION BY FRAUD.
3. Completely exposes the federal judiciary’s unlawful enforcement of the federal personal income tax under the 16th Amendment over the last 60 years of American history, as nothing but a complete and total judicially committed fraud that plainly and clearly can now be seen as the true judicial conspiracy of sedition that it is, to undermine and remove the constitutional limitations placed upon the federal taxing powers, in order to enforce the unconstitutionally directtaxation of the labors and work (“wages” and “salaries“) of the American People, in order to fund, not the legitimate operation of the government, but the constitutionally unauthorized progressive, liberal, Fabian, socialist programs effecting the re-distribution of wealth that are used to create the welfare-class and class warfare systems that are resulting in the destruction of America, Freedom, Liberty, private property, and equal rights, by expanding the judicial authority beyond that which is authorized, to enable the federal judiciary to constitutionally usurp the legislative authority of the Congress, through the judicial enforcement of only the perverted judicial Fabian opinions, in place of the actual written constitutional tax law that exists.
This clearly exposes 60 years of JUDICIAL FRAUD, ERROR, and ARROGANCE.
So, now you know where the income tax enforcement operations of the IRS, the DOJ, and federal judiciary really came from, for the last 60 years, because it isn’t Article I of the Constitution of the United States of America, or the 16th Amendment.
Now our government servants, and especially the federal judiciary, stand condemned by their own ignorance and arrogance, and sedition. By its own congressional admission, now made in the written formal Congressional Record of the United States of America, they are nothing but as guilty as sin itself. And now, there is only one path left by which they may escape to find their way back to justice and righteousness, repent.
COMMENT AND CALL TO ACTION – It’s time to move in on every case pending or case already judged in the past and open the prisons doors for those enslaved under this fraud, by bringing a Mandatory Judicial Notice of this argument into that case or appeal, to prove there was never constitutional jurisdiction for the IRS to bring cases in Tax Court or US District Court citing the 16th amendment, now or in the past. Then after winning these cases or in conjunction with your action to stop those cases, sue for constitutional violations using this new found information and congressional rules as the evidence.


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TZE SUN WONG, Petitioner, v. KENNY WONG, Respondent.
Assailed in this petition for review on certiorari1 are the Decision2 dated May 15, 2007 and the Resolution3 dated October 23, 2007 of the Court of Appeals (CA) in CA-G.R. SP No. 92607, affirming the deportation of petitioner Tze Sun Wong (petitioner).
Petitioner filed a motion for reconsideration20 which was eventually denied by the BOI in a Resolution21 dated December 4, 2002. As such, petitioner filed an appeal before the Secretary of Justice.
Dissatisfied, petitioner filed a petition for certiorari30 before the CA.
Petitioner sought reconsideration36 but was denied in a Resolution37 dated October 23, 2007, hence, this petition.
The sole issue for the Court’s resolution is whether or not the CA correctly denied petitioner’s petition for certiorari.
The Court first discusses the propriety of petitioner’s recourse before the CA.
Section 1, Rule 43 of the Rules of Court clearly states that decisions of any quasi-judicial agency in the exercise of its quasi-judicial functions (except to judgments or final orders issued under the Labor Code of the Philippines) shall be appealed to the CA under this rule.
(3) Exclusive appellate jurisdiction over all final judgments, decisions resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions, including the Securities and Exchange Commission, the Social Security Commission, the Employees Compensation Commission and the Civil Service Commission, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the Labor Code of the Philippines under Presidential Decree No. 442, as amended, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948.
Under Section 8, Chapter 3, Title I, Book III of Executive Order No. 292, the power to deport aliens is vested on the President of the Philippines, subject to the requirements of due process. The Immigration Commissioner is vested with authority to deport aliens under Section 37 of the Philippine Immigration Act of 1940, as amended.49 Thus, a party aggrieved by a Deportation Order issued by the [Board of Commissioner (BOC)] is proscribed from assailing said Order in the RTC even via a petition for a writ of habeas corpus. Conformably with [the] ruling of the Court in [Commissioner] Domingo v. Scheer (see 466 Phil. 235, 264-284 2004), such party may file a motion for the reconsideration thereof before the BOC. The Court ruled therein that “there is no law or rule which provides that a Summary Deportation Order issued by the BOC in the exercise of its authority becomes final after one year from its issuance, or that the aggrieved party is barred from filing a motion for a reconsideration of any order or decision of the BOC.” The Court, likewise, declared that in deportation proceedings, the Rules of Court may be applied in a suppletory manner and that the aggrieved party may file a motion for reconsideration of a decision or final order under Rule 37 of said Rules.
In this case, petitioner instituted an administrative appeal before the Secretary of Justice and thereafter sought direct recourse to the CA via certiorari, thereby leap-frogging other available remedies, the first being a subsequent administrative appeal to the OP and, eventually, an appeal of the OP decision to the CA via Rule 43. While these remedies remained available to him, the Court deems that they would not afford him speedy and adequate relief in view of the plain imminence of his deportation, by virtue of the issuance of a warrant of deportation.56 The urgency of such circumstance therefore justified his direct resort to certiorari.
This notwithstanding, the Court nonetheless denies the petition on substantive grounds.
It must be highlighted that the case under consideration essentially calls for the Court to determine whether the CA’s dismissal of petitioner’s certiorari petition before it was correct.
Petitioner’s certiorari petition before the CA basically revolves on his denial of the acts of misrepresentation imputed against him, claiming that the same do not warrant his deportation. However, the commission of said acts involves factual matters that have already been established during the proceedings before the BOI Board of Commissioners. In this regard, it is crucial to point out that “[t]he Bureau is the agency that can best determine whether petitioner violated certain provisions of the Philippine Immigration Act of 1940, as amended. In this jurisdiction, courts will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies. By reason of the special knowledge and expertise of administrative departments over matters falling within their jurisdiction, they are in a better position to pass judgment thereon and their findings of fact in that regard are generally accorded respect, if not finality, by the courts.”58 As petitioner has not sufficiently demonstrated any cogent reason to deviate from the BOI Board of Commissioners’ findings, courts are wont to defer to its judgment.
Besides, petitioner’s defenses anent what had actually transpired during the relevant incidents surrounding his driver’s license application apparently constitute mere self-serving allegations barren of any independent proof. While he blamed the unnamed fixer filling up the erroneous details in his application, his version of the story remained uncorroborated. The lack of testimony on the part of the fixer leaves much to be desired from petitioner’s theory.
Moreover, the Court’s review of the present case is via a petition for review under Rule 45 of the Rules of Court, which generally bars any question pertaining to the factual issues raised. The well-settled rule is that questions of fact are not reviewable in petitions for review under Rule 45, subject only to certain exceptions, among them, the lack of sufficient support in evidence of the trial court’s judgment or the appellate court’s misapprehension of the adduced facts.59 None of these exceptions was, however, convincingly shown to attend in this case.
Sec. 8. Decision of the Board. - The board of Commissioners, hereinafter referred to in this Act, shall be composed of the Commissioner of Immigration and the two Deputy Commissioners. In the absence of a member of the Board, the Department Head shall designate an officer or employee in the Bureau of Immigration to serve as a member thereof. In any case coming before the Board of Commissioners, the decision of any two members shall prevail.
In particular, the presumption that the Judgment had been deliberated by the BOI Board of Commissioners as a collegial body stands. In any event, the lack of any concurrence or dissension from the two (2) other commissioners missing on the face of the October 2, 2002 Judgment has already been placated by their eventual signing of full concurrence in the subsequent Resolution dated December 4, 2002 denying petitioner’s motion for reconsideration.
WHEREFORE, the petition is DENIED. The Decision dated May 15, 2007 and the Resolution dated October 23, 2007 of the Court of Appeals in CA-G.R. SP No. 92607 are hereby AFFIRMED.
2 Id. at 10-17. Penned by Associate Justice Lucenito N. Tagle with Associate Justices Amelita G. Tolentino and Mariflor Punzalan-Castillo, concurring.
6 Id. at 69 and 170.
9 See Charge Sheet dated February 14, 2002, docketed as D.C. No. ADD-02-983 issued by Acting Special Prosecutor Antonio M. Carolino; id. at 163-164.
11 Pertaining to Mission Order No. ADD-02-157 dated April 17, 2002 (not attached to the records of this case).
14 Id. at 170-173. Signed by Commissioner Andrea D. Domingo and Associate Commissioner Daniel C. Cueto.
16 Entitled “An Act to Control and Regulate the Immigration of Aliens into the Philippines” (August 26, 1940).
18 Entitled “AN ACT AMENDING COMMONWEALTH ACT NUMBERED ONE HUNDRED FORTY-TWO REGULATING THE USE OF ALIASES” (August 4, 1969).
21 Id. at 189-190. Signed by Commissioner Andrea D. Domingo and Associate Commissioners Arthel B. Caronoñgan, Daniel C. Cueto, and Orlando V. Dizon.
25 See Motion for Reconsideration dated May 13, 2005; id. at 199-213.
26 Referring to Commissioner Andrea D. Domingo and Associate Commissioner Daniel C. Cueto.
28 Referring to Commissioner Andrea D. Domingo and Associate Commissioners Arthel B. Caronoñgan, Daniel C. Cueto and Orlando V. Dizon.
32 See id. at 17.
36 See Motion for Reconsideration dated June 4, 2007; id at 299-316.
38 Entitled “An Act Reorganizing the Judiciary, Appropriating Funds Therefor, and for Other Purposes” (August 14, 1981).
39 Amended by RA 7902 entitled “An Act Expanding the Jurisdiction of the Court of Appeals, Amending for the Purpose Section Nine of Batas Pambansa Blg. 129, As Amended, Known as the Judiciary Reorganization Act of 1980” (March 18, 1995).
40 595 Phil. 56 (2008).
42 477 Phil. 891 (2004).
“(a) where there is estoppel on the part of the party invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; (d) where the amount involved is relatively so small as to make the rule impractical and oppressive; (e) where the question involved is purely legal and will ultimately have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g) where the application of the doctrine may cause great and irreparable damage; (h) where the controverted acts violate due process; (i) where the issue of non-exhaustion of administrative remedies has been rendered moot; (j) where there is no other plain, speedy and adequate remedy; (k) where strong public interest is involved; and (l) in quo warranto proceedings.” (Vigilar v. Aquino, G.R. No. 180388, January 18, 2011, 639 SCRA 772, 777, citing Rep. of the Phils. v. Lacap, 546 Phil. 87, 97-98 ).
45 210 Phil. 67 (1983).
46 See Chapter 10, Title III, Book IV, Executive Order No. (EO) 292.
47Caoile v. Vivo, supra note 45, at 82 citing Board of Commissioners v. Hon. Domingo, 118 Phil. 680, 684 (1963).
48 518 Phil. 501 (2006).
Section 10. Power to Countermand Decisions of the Board of Commissioners of the Bureau of Immigration. - The decision of the Board of Commissioners which has jurisdiction over all deportation cases shall become final and executory after thirty (30) days from promulgation, unless within such period the President shall order the contrary.
50Kiani v. The Bureau of Immigration and Deportation, supra note 48, at 515-516.
51 The OP is one of the quasi-judicial agencies specifically mentioned in Section 1, Rule 43 of the Rules of Court.
52 526 Phil 852 (2006).
54Bordomeo v. CA, G.R. No. 161596, February 20, 2013, 691 SCRA 269, 286.
55Francisco Motors Corp. v. CA, 535 Phil. 736, 748 (2006).
56 See dispositive portion of the October 2, 2002 Judgment of BOI Board of Commissioners; rollo, pp. 172-173.
57Bordomeo v. CA, supra note 54, at 289, citing Delos Santos v. Metropolitan Bank and Trust Company, G.R. No. 153852, October 24, 2012, 684 SCRA 410, 422-423.
58Dwikarna v. Hon. Domingo, supra note 42, at 901; emphasis and underscoring supplied.
59Guevarra v. People, G.R. No. 170462, February 5, 2014.
61 Alcazar v. Arante, G.R. No. 177042, December 10, 2012, 687 SCRA 507, 517.
62 G.R. No. 160718, May 12, 2010, 620 SCRA 483.

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Effective delivery of small and large bio-molecules into cells for therapeutic purposes is challenging, owing to the fact that lots of these molecules cannot freely penetrate through the cell membrane. Large bio-molecules delivery such as proteins is further exacerbated by their inability to escape cellular endosomes. In the Rotello Research Group, we use functionalized gold nanoparticles (AuNPs) and nanoparticles-stabilized capsules (NPSCs) to deliver small molecule drugs as well as bio-molecules such as CRISPR, siRNA, genes and proteins, alone or in combination, into mammalian cells. Research is also on progress to deliver such molecules into animals to treat certain diseases. We are also working on bioorthogonal catalysis using transition metals in nanozymes.
Bioorthogonal catalysis using transition metal catalysts (TMCs) is a promising strategy that enables scientist to do artificial transformations in the same physical space that biological processes take place continuously, yet does not interfere with already existing cell machinery. However, issues such as lack of biocompatibility, water solubility, catalyst stability and rapid efflux of catalysts from living cells make it challenging to employ TMC-mediated bioorthogonal catalysis. We developed a gold nanoparticle (AuNPs) based platform where hydrophobic TMCs are been encapsulated into the hydrophobic pocket of the AuNP monolayer to build the “active site” of an artificial enzyme called “nanozyme”. The activity of nanozyme can be reversibly controlled by binding a supramolecular cucurbituril ‘gate-keeper’ onto the monolayer surface, providing a biomimetic control mechanism that mimics the allosteric regulation of enzymes. The potential of this gated system has been demonstrated by the activation of profluorophores and prodrugs in living cells for imaging and therapeutic applications. .
a) Nanozymes. b) Endosomal uptake of nanozymes. c) Intracellular catalysis with NP_Ru or NP_Pd. d) CB complexation inhibits catalyst activity in NP_Ru_CB. e) Nanozyme activity is restored by competitive guest ADA. f) Structures of components used in study. g) Cell viability of 5-FU versus pro-5FU. h) Intracellular prodrug activation using gated catalysis. i,j) Supramolecularly regulated intracellular chemical generation of fluorophore in HeLa cells (scale bars = 10 μm).
Tonga, G. Y.; Jeong, Y.; Duncan, B.; Mizuhara, T.; Mout, R.; Das, R.; Kim, S. T.; Yeh, Y-C.; Yan, B.; Hou, S.; and Rotello, V. M “Supramolecular regulation of bioorthogonal catalysis in cells using nanoparticle-embedded transition metal catalysts” Nat. Chem. 2015, 7, 597-603.
Our laboratory developed two different cytosolic protein delivery platforms. First one is an engineered protein-nanoparticle nanoassembly system, and the second is a gold nanoparticle-stabilized nanocapsule (NPSC) system.
Nanoassembly platform: While proteins of interest were engineered to carry a long glutamic acid tag (E-tag), gold nanoparticles were engineered to carry oppositely charged arginine groups. These engineered proteins and nanoparticles formed large self-assemblies that get fused to cell membrane and directly deliver protein content into cytosol. Using this strategy, we delivered a large number of proteins of different sizes and charges, including gene recombinase and therapeutic proteins, into cells. Moreover, this method allowed us to monitor the trafficking of proteins into destination organelle.
NPSC platform: These NPSCs are formed and stabilized through supramolecular interactions between the nanoparticles, the protein cargo, and the fatty acid capsule interior. The effectiveness of these NPSCs as therapeutic protein carriers was demonstrated through the delivery of fully functional caspase-3 to HeLa cells with concomitant apoptosis. Analogous delivery of green ﬂuoresecent protein (GFP) confirmed cytosolic delivery.
A) Cytosolic protein delivery using engineered nanoassemblies (green dots) through membrane fusion-like mechanism. B & C) GFP-E10 delivery. D) GFP-E10 delivery into different cell lines.
1) Tang, R.; Kim, C. S.; Solfiell, D. J.; Rana, S.; Mout, R.; Velázquez-Delgado, E. M.; Chompoosor, A.; Jeong, Y.; Yan, B.; Zhu, Z.-J.; Kim, C.; Hardy, J. A.; Rotello, V. M. “Direct Delivery of Functional Proteins and Enzymes to the Cytosol Using Nanoparticle-stabilized Nanocapsules” ACS Nano 2013, 7, 6667-6673.
2) R Mout, GY Tonga, L Wang, M Ray, T Roy, Rotello, V. M. “Programmed Self-Assembly of Hierarchical Nanostructures through Protein-Nanoparticle Coengineering” ACS Nano 2017, 11 (4), 3456-3462.
3) R Mout, M Ray, T Tray, K Sasaki, GY Tonga, Rotello, V. M. “A General Strategy for Direct Cytoplasmic Protein Delivery via Protein-Nanoparticle Coengineering” ACS Nano 2017, 11 (6), 6416–6421.
Genome editing through the delivery of CRISPR/Cas9-ribonulceoprotein (Cas9-RNP) reduces unwanted gene targeting and avoids integrational mutagenesis that can occur through gene delivery strategies. We achieved a remarkably high efficient (~90%) direct cytoplasmic/nuclear delivery of Cas9 protein complexed with a single guide RNA (sgRNA) through the co-engineering of Cas9 protein and carrier nanoparticles. In our approach, we engineered the Cas9 protein to carry a long glutamic acid tag (E-tagged Cas9 or Cas9En). Complementary gold nanoparticles self-assembled with Cas9En, fused with cell membrane, and directly delivered the Cas9En into the cytosol. This construct provided effective (~30%) gene editing efficiency and opens up new opportunities in studying genome dynamics.
A) Cytoplasmic delivery of Cas9En increased with the length of E-tag. B) Real-time delivery of Cas9E20 into HeLa cells.
Mout, R.; Ray, M.; Yesilbag Tonga, G.; Lee, Y.-W.; Tay, T.; Sasaki, K.; Rotello, V. M. “Direct Cytosolic Delivery of CRISPR/Cas9-Ribonucleoprotein for Efficient Gene Editing” ACS Nano 2017,11 (3), 2452-2458.
In the past two decades, there has been significant academic interest in applying RNA interference (RNAi) as a novel approach for disease therapy. With RNAi, specifically through the delivery of short interfering RNA (siRNA), it is possible to knockdown the expression of disease-related proteins to reverse disease progression in a non-toxic and safe manner. However, current RNAi-based therapies are hampered by a lack of truly effective delivery vehicles for siRNA, minimizing the total efficacy of such treatments. In our group, we have developed a nanoparticle-stabilized capsule vehicle for the direct, cytosolic delivery of siRNA for disease therapy. Linoleic acid emulsions are coated with functionalized gold nanoparticles that electrostatically associated with siRNA. We have demonstrated the efficacy of this vehicle in delivering siRNA in vitro and in vivo, for direct cancer therapy as well as immunomodulation.
Schematic presentation of NPSC-mediated co-delivery of both siSurv and tamoxifen for enhanced cancer therapy.
1) Jiang, Y.; Tang, R.; Duncan, B.; Jiang, Z.; Yan, B.; Mout, R.; Rotello, V. M. “Direct Cytosolic Delivery of siRNA Using Nanoparticle-Stabilized Nanocapsules” Angew. Chem. Int. Ed., 2015, 54, 506-510.
2) Hardie, J.; Jiang, Y.; Tetrault, E. R.; Ghazi, P. C.; Tonga, G. Y.; Farkas, M. E.; Rotello, V. M. “Simultaneous cytosolic delivery of a chemotherapeutic and siRNA using nanoparticle-stabilized nanocapsules” Nanotechnology., 2016, 27, 374001.

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