The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge
Plaintiffs are former employees of the Department of
Corrections of the City of New York (the "DOC"). Plaintiffs'
federal claims are brought under 42 U.S.C. § 1983 for alleged
violations of the Equal Protection Clause of the Fourteenth
Amendment. Plaintiffs also assert claims under the New York State
Human Rights Law and the New York City Human Rights Law.
Defendants now move for summary judgment. Plaintiffs oppose
that motion, and cross-move to strike certain evidence presented
by defendants and for a continuance pursuant to Fed.R.Civ.P.
Plaintiffs' motion to strike is granted in part and denied in
part. Plaintiffs' motion for a continuance is denied. Defendants'
motion for summary judgment is granted. Procedural History
Plaintiffs initiated this action by the filing of a complaint
on October 4, 2001, and filed an amended complaint on January 23,
2002. Plaintiffs' amended complaint asserted eight causes of
action. The parties cross-moved for partial summary judgment, and
on July 9, 2002 the late Judge Allen Schwartz issued an order
granting defendants summary judgment on all but the equal
protection claim. On January 6, 2003, plaintiffs moved for
reconsideration of the July 9 order. On February 20, 2003, Judge
Schwartz issued an order granting in part plaintiffs' motion for
reconsideration, and reinstating plaintiffs' claims under the New
York State and City Human Rights Laws. In April 2003, this case
was reassigned to the docket of the undersigned judge.
Part One of this opinion will address defendants' motion for
summary judgment. Plaintiffs' motions will be addressed in Part
Plaintiffs in this action are Albert Kelly, Michael Flynn,
Ajama Jabari Bey, Wayne Bollin Bey, Ntchwaidumela Bey, Agnes Bey,
and Zaimah El. These are the names which are used in the caption
and the names which generally appear in the motion papers. However, certain of the
plaintiffs are now or in the past have been referred to by
different names: Albert Kelly is now known as Faruq Noble Bey;
Ajama Jabari Bey was formerly known as Tyrone Weston; Wayne
Bollin Bey was formerly known as Wayne Bollin; Ntchwaidumela Bey
was formerly known as Ashley Steward; Agnes Bey was formerly
known as Agnes Conrad; and Zaimah El was formerly known as
Gwendolyn Poche-Houston. For the sake of consistency and clarity,
this court will refer to the plaintiffs using the names under
which they filed this action, even though certain papers in
evidence bear the other names. Plaintiffs were all DOC employees.
Sometime in 1996, the NYPD received intelligence information
about a group known as "The Great Seal Association of Moorish
Affairs." This information was communicated throughout the NYPD
by a memorandum dated April 26, 1996. That memorandum was from
the Chief of Detectives, and was titled "Heightened Security
Alert on Car Stops Involving `Moorish National' License Plates."
The memorandum cautioned that members of the group known as "The
Great Seal Association of Moorish Affairs" were suspected of
armed robberies and trafficking in high-powered automatic
weapons. The memorandum warned law enforcement officers to look
out for, among other things, vehicles bearing "Moorish National" license plates;
persons bearing official-looking documents asserting that the
bearer has diplomatic immunity or is an employee of the Justice
Department; or persons who refuse to recognize the authority of
police officers. The memorandum does not mention religion. The
memorandum was forwarded to defendant Michael Caruso as part of a
fax sent on July 9, 1996.
At all relevant times, defendant Michael Caruso was the
Inspector General of the DOC. In 1996, a number of suspicious tax
forms and other papers submitted by DOC employees were forwarded
to the DOC's Inspector General's Office. The submitted papers
included statements by certain DOC employees that they were
exempt from paying taxes or that they were immune from the
jurisdiction of the United States and the State of New York.
The tax forms in question were forms filed by an employee with
an employer dealing with the withholding of income tax. The
federal form is a W-4 and the New York State form is an IT-2104.
Both are entitled "Employee's Withholding Allowances
Certificate." These forms permit an employee to claim
"allowances," such as dependents, in order to reduce the amount
of withholding. The forms also permit an employee to claim
complete exemption from withholding. In 1996, the New York City Office of Payroll Administration
(the "OPA") reported that many New York City employees had filed
their W-4 tax forms with either unusually high numbers of claimed
allowances or notations that they were totally exempt from paying
any income tax. As a result of this information, the New York
City Department of Investigation (the "DOI") initiated a
City-wide investigation to determine whether any City employee
had engaged in criminal activity in submitting tax documents
related to employment by the City. As part of the investigation,
the OPA generated a list of approximately 1800 New York City
employees who had filed W-4 forms with 40 or more claimed
allowances. The report indicated certain information about each
employee, but did not contain information about an employee's
race, religion, or nationality.
The OPA list was provided to the New York State Attorney
General's Office and the Manhattan District Attorney's Office.
Those offices then directed DOI to arrest approximately 100 of
the 1800 employees on the OPA list. The arrested employees were
subsequently criminally prosecuted by the Attorney General or the
District Attorney. Approximately 70 of those arrested and
criminally charged were DOC employees, six of whom identified
themselves as "Moorish-American" nationals. The arrested DOC
employees were suspended from work without pay. Those DOC
employees who were later convicted of felonies or of certain
misdemeanors involving the oath of office were automatically terminated from their employment with the DOC
pursuant to § 30(1)(e) of the Public Officers Law. Those DOC
employees who were criminally prosecuted but were not terminated
pursuant to § 30(1)(e) were served with disciplinary charges for,
inter alia, filing false tax information.
Of the remaining 1700, approximately 1100 to 1200 were
employees of the DOC. Of the DOC employees, 184 had submitted
federal or state tax forms indicating that they were not subject
to federal or state income taxation. Some of the 184 also
submitted other papers in support of their claimed exemption.
Caruso recommended that charges and specifications be brought
against the 184 DOC employees for, among other things, filing
false tax information.
Out of these 184 employees, Caruso recommended that 21 be
terminated. The 21 individuals recommended for termination
included the seven plaintiffs in this action. He viewed these 21
as being guilty of particularly serious misconduct in the filing
of allowance forms and the supporting papers. For instance, many
of them had alleged that they were not subject to the
jurisdiction of the United States and the State of New York, and
had purported to renounce their United States citizenship. Some
had stated that they were not subject to arrest. All of them
indicated that they were "Moorish American" nationals. This
raised at least a suspicion that they were part of the group known as the "The Great Seal Association of
Moorish Affairs," which, as explained earlier, had been
determined to be a dangerous group by the police.
Documents Submitted by Plaintiffs
The following is a description of the documents received by the
DOC Inspector General's Office (Caruso's office) in the course of
its inquiry. These consisted of withholding tax allowance forms
and other documents submitted to the DOC in support of the claims
in the allowance forms.
The Inspector General's Office was forwarded seven tax forms
signed by Kelly: two federal W-8 forms titled Certificate of
Foreign Status, one each from 1995 and 1996, certifying under
penalty of perjury that Kelly was not a U.S. citizen or resident
for those years; four federal W-4 forms, two each from 1996 and
1997, certifying under penalty of perjury that Kelly was exempt
from withholding for those years; and one state IT-2104-E form
titled Certificate of Exemption from Withholding certifying under
penalty of perjury that Kelly was exempt from state withholding
for 1996. Kelly does not deny that he signed and submitted these
forms. The Inspector General's Office also received a document titled
"Constructive Notice of Waiver of Tort" (the "Notice"). The
Notice is not dated, but a photocopy of the envelope indicates
that it was sent to the DOC by certified mail on March 28, 1997.
The return address on the envelope indicates that the sender was
Jawan Akil Bey. Kelly admits signing the Notice during March
1997, but claims that he did not know it would be filed with the
DOC. Although the Notice contains a distribution page listing at
least four DOC employees as recipients, Kelly claims that he
never saw that page.
The Notice purports to establish that "We the People, `Beys',
`Els' and `Washitaw Nationals', Natural Persons Sui Juris, the
aboriginal, Free National Moors and Continental united states
Citizens . . . cannot be lawfully obligated or compelled to be
subjugated to involuntary withholding without our informed
consent pursuant to Rodrigues v. Secretary of Labor Donovan,
769 F.2d 1344 (1985)." The Notice also purports to establish a
contract, under which "violations henceforth shall constitute
acceptance of the contract herein offered for ONE MILLION DOLLARS
($1,000,000) in GOLD (31 U.S.C. § 5112) per Right, per Day." Not
surprisingly, the above-cited case and statute are utterly
inapposite. The Notice includes the statement that "[t]he fact
that our actions are pursuant to our sincerely held spiritual
convictions means that even Congress shall make no law
prohibiting the free exercise thereof." The final line of the
Notice reads "We are aboriginal `Beys', `Els' and `Washitaw Nationals'" and is followed by a number of signatures, including
that of Faruq Noble Bey, aka Albert Kelly.
The final document forwarded to the Inspector General's Office
as part of Kelly's file is a letter from David Chavis El. The
letter is not specifically addressed to any DOC employee; rather,
it is addressed to "All That May Be Concerned." The return
address on the letter indicates that it was sent on behalf of the
"Azizan Moorish Nation", and the signature line indicates that
Chavis El is the National Ambassador. The letter purports to
The Azizan Moorish National presenting this
correspondence is a Citizen of the Azizan Moorish
Nation, in good standing, and is protected by
International Law. Our National is NOT a U.S.
citizen, therefore falling within the jurisdiction
of the Azizan Moorish Nation, and is not subject to
U.S. regulations, but protected by them.
We of the Azizan Moorish Nation are Indigenous and
Aboriginal to the Continental Amexem (Americas). This
has been substantiated by the historical research of
Prof. Ivan Van Sertima regarding the Moorish presence
in Ancient Amexem (America), as well as documentation
from the Moroccan Embassy testifying to the presence
of Moors on this land mass at least a thousand years
before the arrival of Columbus.
The letter is neither signed nor dated, and does not name any
specific person. Kelly does not deny submitting this document,
but denies that he intended to renounce his United States
citizenship or claim immunity from the jurisdiction of the United
States or the State of New York. Michael Flynn
The Inspector General's Office was forwarded three tax
documents signed by Flynn. The first tax document is titled
"Certificate of Exemption from Withholding in Lieu of Form W-4"
and is paired with single-page cover letter. The letter is
undated, though the Certificate indicates that it is to apply to
withholdings during 1996. The Certificate certifies under penalty
of perjury that Flynn is "EXEMPT by law from withholding for
the year of 1996." The cover letter is ostensibly from Flynn's
employer and purports to give notice to the IRS that the employer
will stop withholding from Flynn's income unless the IRS responds
within 30 days. The cover letter appears to be an uncompleted
form, as spaces marked "[ON EMPLOYER'S LETTERHEAD]" and
"Sincerely: Owner/Manager of Business" have not been replaced
with the actual information. The second is a federal W-4 form
from 1996, certifying under penalty of perjury that Flynn claimed
99 allowances for that year. The third is a state IT-2104 form
titled "Employee's Withholding Allowance Certificate" dated
August 21, 1996, certifying that Flynn claimed 99 allowances for
that year. Flynn does not deny that he signed and submitted these
The Inspector General's Office was also forwarded a letter from
Flynn to Alan Vengersky, the DOC's Director of Personnel. In the
letter, dated November 12, 1996, Flynn requests that the DOC
"stop deducting taxes from my paycheck" because, based on his research, the government has
no authority to impose a direct tax on him. Flynn does not deny
that he signed and submitted this letter.
The Inspector General's Office also received a document titled
"Constructive Notice of Waiver of Tort" signed by Michael Flynn.
This document is identical to the Notice described earlier.
However, the Notice in Flynn's file also contained a cover letter
on the letterhead of The Great Seal National Association of
Moorish Affairs. The cover letter is undated, and signed by Jawan
Akil Bey, the apparent sender of the Notice. Flynn admits signing
the Notice, but claims that he is not a Moorish American or a
Washitaw National. Rather, Flynn claims he signed the Notice "to
support their religious beliefs about why they are not subject to
taxes." Like Kelly, Flynn claims that he did not submit the
Notice to the DOC. Unlike Kelly, Flynn does not claim that he was
unaware that a third party might submit the Notice to the DOC.
The Inspector General's Office received five tax documents
signed by Jabari Bey: two federal W-4 forms, one each from 1981
and 1996, certifying under penalty of perjury that Jabari Bey was
exempt from withholding for those years; one document titled
"Withholding Exemption Certificate in Lieu of Form W-4" from
1997, certifying under penalty of perjury that Jabari Bey was exempt from withholding for the year 1997; one document titled
"Certificate of Foreign Status for a Moorish-American" dated
January 17, 1997, certifying under penalty of perjury that Jabari
Bey is not a citizen or resident of the United States; and one
state IT-2104 form dated August 7, 1996, certifying that Jabari
Bey claimed 99 allowances for that year. Jabari Bey does not deny
that he signed and submitted those documents.
The Inspector General's Office also received a "Constructive
Notice of Waiver of Tort" signed by Jabari Bey. The Notice is
identical to the ones described earlier, and includes the same
cover letter. Jabari Bey admits signing the Notice, but claims
that he did not know that it would be sent to the DOC. However,
Jabari Bey admits that Jawan Akil Bey mailed a copy of the Notice
to the DOC.
The Inspector General's Office was forwarded a number of other
documents signed or submitted by Jabari Bey. The first document
was titled "Legal Notice Declaration of Status" and, like the
Notice, was on the letterhead of The Great Seal National
Association of Moorish Affairs. The document is undated, and
there is no addressee. Three copies of this document were
forwarded to the Inspector General's Office: though not
identical, the only differences are cosmetic. The document
purports to give "lawful and legal notification, to you,
concerning the RIGHT(S), IMMUNITY(IES) and SOVEREIGN STATUS of the FREE MOORISH NATIONALS; the Beys and Els of the
Continental United States." The document states that
the FREE MOORISH NATIONALS "were not included and
were not intended to be included" as "citizens"
(subjects) of the Union States Rights Republic.
Resultantly, the FREE MOORISH NATIONALS, bearers of
the names/titles Bey and El, are excluded from Union
States Rights Republic (U.S.A.) jurisdiction. The
FREE MOORISH NATIONALS are Sovereign (self-governed)
by and ONLY obligated to THE FREE MOORISH ZODIAC
CONSTITUTION, THE GREAT SEAL and the principles and
standards embodied in the MOORISH NATIONAL FLAG . . .
THE FREE MOORISH NATIONALS maintain a NON-OBLIGATORY
respect for the Union States Rights Republic
(U.S.A.), its members, laws, ordinances, codes,
customs and tradition.
The document goes on to state that
the FREE MOORISH NATIONALS, bearers of the
names/titles Bey and El, the LEGAL CITIZENS of the
Continental United States, the land of our Moorish
forefathers of Moroccan descent, having and retaining
ALL SUBSTANTIVE "RIGHTS AND IMMUNITIES OF NATIONALS",
enjoy and operate upon consummated, vested
Constitutional RIGHTS AND IMMUNITY(IES) from
TAXATION, CRIMINAL AND CIVIL JURISDICTION by, and of,
the Union States Rights Republic (U.S.A.) . . .
[and] this firmly establishes a WANT OF JURISDICTION
on the part of the Union States Rights Republic
The document is signed by Jabari Bey, and the phrase under the
signature line indicates that Jabari Bey is "A FREE AND SOVEREIGN
MOORISH-AMERICAN." Jabari Bey does not deny that he signed and
submitted this document.
The Inspector General's Office was also forwarded two copies of
a document titled "Letter of Credence: Notification of Rights and
Immunities." The copies appear to be identical. The document is
on the letterhead of The Great Seal National Association of
Moorish Affairs and is undated. The document is addressed to all
federal, state, and city officials and public servants, and
states that "[t]he Sovereign individual, named herein, is not to
be arrested or held for detention under any circumstances. The
individual named herein is exempt from Customs, tariffs,
taxation, and any hindrance or restriction of his or her ...