Los Angeles, California
February 28, 2013
Current or today's date
December 27, 2012
Original date
**UPDATE (Denotes new and/or current information)
On December 24, 2012, I filed an Application with Circuit Justice Anthony M. Kennedy of the United States Supreme Court, requesting that he issue a declaratory judgment declaring and finding that the Ninth Circuit had a duty to transfer my Petition for a Writ of Mandamus, evolving from the actions of District Judge Cormac J. Carney, USDC, Central District of California, to another Circuit Court of Appeals for decision, based on various factors. The Petition evolves from the District Court case of Bray v. Department of Justice, No. CV-12-5704(CJC), USDC, Central Dist. of Cal..
Although I am a Black attorney, I filed the application in forma pauperis (or as an indigent person) and pro se, and charged that the misconduct of state and federal government officials, including judges, is the cause of my indigent status, with some of the misconduct being racial discrimination.
I believe that the Ninth Circuit ought not have acted on the Petition, and rather, should have transferred the Petition to another circuit, based , in part, on my history with the Ninth Circuit. So, I have asked Justice Kennedy , besides finding that the Petition should have been transferred, to vacate the Ninth Circuit's mandamus Order (which arbitrarily denied me relief ).
The significant underlining matter in the Application is my application for a temporary restraining order (TRO) seeking to re-possess my home-law office that was illegally taken in 2003. Judge Carney, without authority, purportedly denied the TRO application.
This blog will keep you updated on the processing of my Application.
In addition to the Application itself, I also submitted an Affidavit containing critical information. While I am going to publish the Application here, I will postpone publishing the Affidavit until later. You'll have to go to the Supreme Court to get the Affidavit for now.
A copy of the Application to Supreme Court Justice Kennedy (minus the title page) is as follows :
NO.______
_______________
SUPREME COURT OF THE UNITED STATES
________________
LAURACK D. BRAY, Applicant
v.
ALEX KOZINSKI and
THE NINTH CIRCUIT COURT OF APPEALS, Respondents
_________________
APPLICATION FOR A DECLARATORY JUDGMENT AND TO VACATE THE ORDER
OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
__________________
To the Honorable Anthony M. Kennedy, Circuit Justice for the Ninth Circuit :
Applicant Laurack D. Bray respectfully moves for an order declaring that Chief Judge Alex Kozinski and the United States Court of Appeals for the Ninth Circuit, under the circumstances, had a duty to transfer Applicant’s mandamus petitions to another circuit court of appeals for decision; and by not transferring or seeking to transfer Applicant’s mandamus petitions to another circuit court for decision, the Ninth Circuit, based on the totality of the circumstances, violated Applicant’s constitutional due process and equal protection rights, pending the filing of and final action by this Court on an anticipated petition for a writ of mandamus directed to the Ninth Circuit panel issuing the decision on Applicant’s filed mandamus petitions in that Court (or seeking review of the panel’s mandamus decision through a mandamus action in this Court based on the facts and law of the panel’s decision). Applicant also requests an order vacating the panel’s decision.
The mandamus petition in this Court will seek review of the Ninth Circuit panel’s mandamus decision below in Laurack D. Bray v. U.S. District Court for the Central District of California, No. 12-5704(CJC) for clear error (in violation of a federal statute), which said decision basically affirmed an unlawful judgment of the United States District Court for the Central District of California that denied Applicant’s motion for a temporary restraining order and dismissed Applicant’s civil rights Complaint without authority to do so. Copies of the Ninth Circuit’s panel’s mandamus Order, see Appendix #3, together with the District Court’s judgment (as part of the mandamus petition), see Appendix #2 (Supp.) are attached hereto .
This is the only Court that can review the propriety of the Ninth Circuit’s decision to rule on Applicant’s mandamus petitions itself rather than transferring or seeking a transfer of the petitions to another circuit.
I BRIEF PROCEDURAL HISTORY OF THE CASE
The relevant procedural events are summarized as follows:
A. On July 2, 2012, Applicant lodged an eight (8) count civil rights Complaint against multiple state and federal defendants, alleging racial discrimination (evolving from a failure to prosecute Applicant’s criminal complaints), constitutional fraud, unreasonable search (mail), illegal surveillance (including wiretaps and a GPS device), violation of the right to privacy, medical negligence (FTCA), and denial of due process and equal protection. See Appendix #1. One of the major forms of relief sought in the Complaint is permanent injunctive relief that will permanently place Applicant in possession of premises or property (that served as both home and law office for Applicant) that he has alleged was unlawfully and/or wrongfully taken in 2003 through an unlawful and racially-motivated eviction.
On the same day, Applicant lodged an ex parte application for a temporary restraining order (TRO), see Appx #1, requesting the district court to restrain certain defendants from selling, leasing, renting or otherwise transferring the aforementioned property to anyone else until a determination was made as to the rightful possessory rights to the property located in Ventura, California. Applicant also requested the court to restrain the applicable defendants from prohibiting Applicant from taking immediate possession of said property (as Applicant had observed that the property had undergone renovations and was empty or vacant at or near the time that Applicant filed the Complaint and moved for the TRO).
On the same day, Applicant lodged a motion to proceed in forma pauperis (IFP) for the filing and prosecution of Applicant’s case in the District Court. In his motion papers, Applicant argued that the government (both state and federal), through misconduct, was directly responsible for Petitioner’s indigency and his need to proceed in forma pauperis in filing his Complaint.
The papers were lodged pending a decision on Applicant’s IFP motion. No action was taken with respect to Applicant’s TRO application.
B. On July 3, 2012, Applicant returned to the Clerk’s Office to obtain the status of his pending motions, particularly the TRO. Applicant discovered that the magistrate had acted upon his IFP motion, but had only granted partial relief, that is, prepayment of the filing fee, while omitting other relief sought pursuant to the IFP statute, i.e., 28 U.S.C. sec. 1915, such as service of process by the U.S. Marshall. There was no action taken on the TRO, and the case had not been assigned to a judge, although district court procedural rules require that a civil case be randomly
assigned to a judge upon filing. The case was officially filed on this day (July 3rd,
2012).
C. On July 5, 2012, Applicant returned to the district court and filed a Notice of Related Case, indicating that Applicant’s case was related to a case on the docket or calendar of district judge Cormac J. Carney, and that the case should be transferred to judge Carney. While filing the Notice, Applicant was informed by the clerk that his case had been assigned to a judge . Applicant discovered that the Clerk’s Office, rather than randomly assigning the case to the next available judge, had intentionally assigned the case to a judge who had several years earlier denied Applicant relief in another unrelated case and who was implicated in a federal criminal complaint filed by Applicant against another Central District judge, Dickran Tevrizian, see infra. The TRO motion still had not been acted upon by any judge. Applicant nonetheless went ahead and filed the Notice of Related Case (and indicated in another filing to the Chief Judge that if the assigned judge, Christina Synder, remained on his case that he would be prompted to take some type of action).
D. On July 17th, 2012, Applicant’s case was transferred to judge Carney (upon judge Carney agreeing to accept the case). Judge Carney could have objected or declined the transfer, but he agreed to accept the case.
E. On August 6, 2012, after judge Carney had not acted upon or failed to rule on Applicant’s TRO application, Applicant contacted the Ninth Circuit Court of Appeals Clerk’s Office, pursuant to a 9th Circuit Rule, Cir. Rule 21-5, requiring such action, and informed that office that Applicant would be filing a Petition for a writ of mandamus pursuant to 18 U.S.C. sec. 3771(d)(3) . Applicant sent the mandamus petition on this same day, via postal express mail.
F. On August 14, 2012, after Applicant-Plaintiff had filed his mandamus appeal and after the sec. 3771(d)(3) three- day period for the Ninth Circuit Court of Appeals to have acted upon the mandamus petition had expired, judge Carney issued an Order, purportedly denying the TRO and ordering Applicant to show cause why the case should not be dismissed for failure to state a claim.
G. On August 20, 2012, Applicant responded to judge Carney’s order as to jurisdiction only, arguing that he (Carney) lacked jurisdiction to make any rulings, either on the TRO or to issue a show cause order, because Applicant had appealed his failure to rule on the TRO prior to his Order.
H. On September 26, 2012, judge Carney issued an Order purportedly dismissing Applicant’s case with prejudice for failure to state a cognizable claim.
I. On October 3, 2012, Applicant filed a Supplemental Petition for a writ of mandamus pursuant to 18 U.S.C. sec. 3771(d)(3) in the Ninth Circuit Court of Appeals, see Appendix #2, arguing that the district court acted without authority in issuing the latest order (dismissing the Complaint) and the former order (denying the TRO); and Applicant gave notice to the district court that he would be concurrently filing the Supplemental Petition in the Ninth Circuit Court of Appeals in response to the district court’s dismissal order. See Appendix #4.
J. On October 19, 2012, well beyond the 3- day sec. 3771(d)(3) requirement for acting on both petitions (main and supplemental)(and each petition had a separate 3 day period), the Ninth Circuit issued a two sentence Order denying both petition(s) (which raised different issues) without stating the specific reason directed to each respective petition as to why (or the basis) the petition was being denied. See Appendix #3. At the same time, the Court prohibited Applicant from seeking further review from the Ninth Circuit, i.e., rehearing or rehearing en banc.
K. January 19, 2013: Present due date for filing a Petition for a writ of mandamus in this Court, being 90 days from the Ninth Circuit’s mandamus decision and the denial of any right to petition for a rehearing.
II GROUNDS FOR DECLARATORY RELIEF
The grounds for seeking declaratory relief are as follows:
A. Under the circumstances of this case, the Ninth Circuit Court of Appeals had a duty to transfer or request a transfer of this case to a different circuit court for a decision on Applicant’s sec. 3771(d)(3) mandamus petition.
B. Even if the Ninth Circuit did not have a duty to transfer this case, or seek to have the case transferred based on the circumstances or specific facts of the case, it had a duty to do so based on 28 U.S.C. sec. 455(a).
C. The entire Ninth Circuit had a conflict of interest as to Applicant’s Complaint and the mandamus petitions.
D. It was a violation of Applicant’s Fifth Amendment due process and equal protection rights for the Ninth Circuit to rule on Applicant’s sec. 3771(d)(3) mandamus petition, or any other matter or proceeding.
III ARGUMENT FOR DECLARATORY RELIEF
Before undertaking argument, Applicant believes it is important, and perhaps necessary, to inform the Court of Applicant’s status here and below. Applicant is a Black lawyer, sole practitioner, who has practiced law for over 25 years now, and nearly his entire career as a lawyer has been as a sole practitioner. He began his career in Washington, D.C., and later moved back to California (where he was raised and attended college), where he practices federal law only. Applicant has no disciplinary history with the Bar, and has participated in several cases as counsel of record which has resulted in published opinions, including a Ninth Circuit case, see Jackson v. Guirbino, 364 F.3d 1002 (9th Cir. 2004)(the reported case does not indicate that Jackson had filed his own Opening Brief and raised his own issues on appeal before Applicant entered the case, thereby causing multiple issues to be raised on appeal—but, it was the Miranda issue that Applicant raised in his Supplemental Brief that caused the reversal of Jackson’s conviction). Finally, Applicant is a member, in good standing, of the Bar of this Court. Applicant has proceeded in forma pauperis (IFP) in the Courts below, and is now proceeding IFP in this Court. Applicant continues to charge that it was the misconduct and/or criminal conduct of the state and federal defendants in Applicant’s district court Complaint that directly caused Applicant’s eventual indigent status, which began to develop with the unlawful and racially-motivated shutdown of Applicant’s home-law office in Ventura, California in 2003.
A. UNDER THE CIRCUMSTANCES OF THIS CASE, INVOLVING APPLICANT’S
PRIOR HISTORY WITH THE NINTH CIRCUIT BELOW, THE NINTH CIRCUIT
COURT OF APPEALS HAD A DUTY TO TRANSFER THE CASE ITSELF
PURSUANT TO DUE PROCESS CONSIDERATIONS, OR REQUEST A
TRANSFER TO ANOTHER CIRCUIT VIA THE CHIEF JUSTICE, FOR RESOLUTION
OF PETITIONER’S MANDAMUS PETITION.
The following are some of the circumstances giving rise to a duty of the Ninth Circuit to transfer the petition for a writ of mandamus to another circuit:
1. Prior to June, 2007, Applicant (on behalf of himself and two clients, from two separate and different cases ) filed a federal misconduct Complaint with the Ninth Circuit’s Judicial Council charging several district court and Ninth Circuit judges with misconduct regarding their involvement with several civil cases that began at the district court level (Central District of California) and ended at the 9th Circuit level.
The acting chief judge of the Judicial Council, rather than submitting the
Complaint to a Committee for investigation, acted on the Complaint himself and rationalized away all of the misconduct by the judges, except for one judge; and for this one judge, rather than rule on his serious misconduct, the chief judge forced him to retire, thereby avoiding discipline. As the chief judge stated in the misconduct decision, “One of the district judges named by complainant has retired, rendering the charges against that judge moot”, citing In re Charge of Judicial Misconduct, 91 F. 3d 90 (9th Cir. Jud. Council 1996). However, the best evidence that the Complaint was meritorious was the action of the acting chief judge in intentionally delaying ruling on the misconduct complaint, in violation of a federal statute requiring an expeditious ruling, in order to allow the same aforementioned federal district judge to “retire” and avoid discipline for his misconduct.
In June, 2007, because most, if not all, of the misconduct by the federal judges named in the misconduct complaint had criminal ramifications as well, and because Applicant and his clients continued to seek a remedy for the actions of several judges, Applicant (and again on behalf of the same two clients mentioned above) filed a multi-party federal criminal-civil rights Complaint with the U.S. Attorney Office in Los Angeles, charging, generally, the same federal judges named in the misconduct Complaint (including the “retired” judge) and adding several state court judges from Ventura County, CA, Superior Court, where Applicant’s district court civil litigation originally began) and the then 9th Circuit Clerk , Cathy Catterson.
While it does not appear to add anything to the application with respect to Applicant’s request for declaratory relief to name the judges, rather than just informing this Court that there were multiple Central District court and Ninth Circuit court judges named in the Complaint, Applicant will name some judges because of their special circumstances (and the description of their conduct will only cover the special circumstances or conduct , not usually the charges of the Complaint—therefore, usually there were separate charges against them in the Complaint) . But see Applicant’s Affidavit at Appendix #6.
The 2007 federal criminal Complaint included the following federal Central
district court judges : Dickran Tevrizian, who “retired” (rather than face disciplinary
proceedings) during the Ninth Circuit misconduct proceedings mentioned above;
Terry Hatter, Jr., who, upon information and belief, was a member of the Ninth
Circuit Judicial Council as late as 2010; and William W. Schwarzer, who acted as a
designated judge of the Ninth Circuit when his acts were committed. The Complaint included the following Ninth Circuit judges:
Mary Schroeder, who was named in the misconduct complaint and charged with
misconduct in her position as Chief judge, and was allowed to step down as Chief
Judge before the misconduct decision was issued; Alex Kozinski and Richard Clifton
(the Complaint was subsequently withdrawn as to Kozinski and Clifton, but on a
ground other than the merits or reasons for the Complaint), see infra; and others.
The U.S. Attorney’s Office in Los Angeles refused to investigate and/or
prosecute any of the individuals in the Complaint, including the Court Clerk , Cathy
Catterson. However, although the U.S. Attorney refused to investigate or prosecute
any of the individuals, the best evidence that the Complaint was meritorious, and
supported by probable cause in at least some cases, was the action taken by the F.B.I.
based on its own authority or power to perform certain functions. That is, upon information and belief (because the F.B.I. did not contact me and inform me of their actions—I surmise to keep their actions secret—but, at the same time, denying me relief), the F.B.I., through deal-making (e.g., in order to avoid arrest and/or prosecution, you must retire or resign your position), caused at least the following individuals to retire or resign as a result of Applicant’s criminal Complaint: state judges
Steven Hintz (on or about the same day that Applicant filed the Complaint) and Barry Klopfer (about one week later) of the Superior Court of California, Ventura County, CA (retired)—both of these judges were involved with Applicant’s criminal charge of a racially-motivated eviction from his home-law office in Ventura, CA; Central District Court of California judge Terry Hatter, Jr. (retired to senior status); Northern District of California judge William Schwarzer (retired from senior status); and then-Ninth Circuit Clerk Cathy Catterson (resigned). After some time had passed, the Ninth Circuit rehired Catterson as Court Executive . She currently maintains that position. As mentioned earlier, upon information and belief, Hatter at least was a member of the Ninth Circuit’s Judicial Council as of 2010.
2. In 2008, Petitioner filed another criminal Complaint(s) charging, among others, Ninth Circuit judge Harry Pregerson and two other Ninth Circuit judges, and the current Circuit Court Clerk, Molly C. Dwyer. Part of the charge against judge Pregerson was based on his conduct during the aforementioned judicial misconduct complaint proceedings, e.g., tampering with the appellate file by removing a docketed filing in order to support misconduct, i.e., allowing a district judge, Tevrizian, to retire rather than face discipline. He was also separately charged as part of a Ninth Circuit panel .
Applicant also filed a separate Complaint against the then-U.S. Attorney Thomas P. O’Brien. O’Brien later resigned. Upon information and belief, O’Brien’s resignation was at least, in part, based on Applicant’s criminal Complaint against him.
3. Subsequent to the 2008 Complaint, the U.S. Attorney for Los Angeles announced , at least through the L.A. Times, that it was beginning a new section, the Public Integrity Section, that would be charged with investigating and prosecuting civil rights complaints, among others. Pursuant thereto, Applicant began a blog, announcing that he was aware of candidates that should be investigated and prosecuted pursuant to the U.S. Attorney’s announced dictates of misconduct to be investigated and prosecuted. Many of the individuals identified in the blog were (are) Ninth Circuit judges who had been named in Applicant’s criminal complaints which were not investigated or prosecuted by the U.S. Attorney’s Office previously.
Applicant believes the above facts alone required the Ninth Circuit to transfer the document itself or request the transfer of the Applicant’s mandamus Petition to another circuit court for resolution.
See also, Appendix #6 (Affidavit of Laurack D. Bray), esp. at No. 14.
B. EVEN IF THE NINTH CIRCUIT DID NOT HAVE A DUTY TO TRANSFER THE CASE
BELOW BASED ON THE SPECIFIC FACTS OF THE CASE, IT HAD A DUTY TO DO
SO BASED ON 28 U.S.C. SEC. 455(a).
Pursuant to 28 U.S.C. sec. 455(a), “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” (Emphasis added). And Congress has apparently interpreted this provision as meaning “if there is a reasonable factual basis for doubting the judge’s impartiality, he should disqualify himself and let another judge preside over the case.” See H.R. Rep. 93-1453 (1974), reprinted in 1974 U.S.C.C.A.N. 6351. Applicant believes the above-stated facts in Section “A” provides the reasonable factual basis for doubting any Ninth Circuit judge’s impartiality. Certainly, a reasonable third party observer with knowledge of the above facts would conclude that there is at least a risk that all Ninth Circuit judges would be influenced by said facts and resolve the mandamus petition below on a basis other than the merits.
And, while it might have been helpful for Petitioner to file a motion for recusal of the entire 9th Circuit Court, Petitioner was not required to do so in order for the Ninth Circuit to have an obligation to recuse itself. “Whenever a judge’s impartiality ‘might reasonably be questioned’ in a proceeding, 28 U.S.C. (sec.) 455(a) commands the judge to disqualify himself sua sponte in that proceeding.” Alexander v. Primerica Holdings, Inc., 10 F. 3d 155(3rd Cir. 1993). See also Youn v. Track, Inc., 324 F.3d 409 (6th Cir. 2003) where, “Under (sec.) 455(a), a judge must sua sponte recuse himself if he knows of facts that would undermine the appearance of impartiality.”
Finally, the Rule of Necessity as explained in United States v. Will, 449 U.S. 200 (1980) did not apply to prevent the recusal of the entire Ninth Circuit Court of Appeals in the case below, primarily because “all” the Article III judges (such as those of another circuit court other than the 9th Circuit) did not have an interest in the outcome of Petitioner’s mandamus petition directed to a district court judge of the Ninth Circuit’s area, “so that it was not possible to assign a substitute (circuit) judge or for the Chief Justice to remit the appeal, as he is authorized to do by statute, to a division of the Court of Appeals with judges who are not subject to the disqualification provisions of (sec.) 455. . . .” Will, supra.
1. Judge Cormac J. Carney
The mandamus petitions and decision here which is the subject of this application was directed to the conduct of Central District (of California) judge Cormac J. Carney. Not only is judge Carney a member of the Central District, which is a part of or included in the Ninth Circuit’s jurisdiction, but judge Carney also served as a “designated” judge of the Ninth Circuit, which, in essence, made judge Carney a member of the Ninth Circuit Court himself. See E.T. v. Cantil-Sakauye, 682 F. 3d 1121 (9th Cir. 2012). And, as a member of the Ninth Circuit, he has a unique relationship with both district court and Ninth Circuit judges. “(G)iven the extent to which circuit and district judges within a circuit deal with each other on professional and personal levels, Chief Judge Browning’s apparent conclusion that the appearance of justice would be served by having appellant’s appeals heard by impartial judges from outside the Ninth Circuit seems eminently reasonable.” (Emphasis added) United States v. Claiborne, 870 F. 2d 1463 (9th Cir. 1989). Apparently, it was the “appearance of justice” that prompted the Ninth Circuit Judicial Council, evolving from the Central District case of U.S. v. Isaacs, No. CR 07-732GHK, to request the Chief Justice to transfer the misconduct Complaint of Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals to another Circuit for decision. Although the Judicial Council did not provide any specific reasons for the request (merely stating “Exceptional circumstances appearing, and pursuant to Rule 26 of the Rules for Judicial-Conduct and Judicial-Disability Proceedings, the Ninth Circuit Judicial Council requests that the Chief Justice transfer this identified complaint to the judicial council of another circuit for review and disposition”), it is clear that the predominant reason was because judge Kozinski was a member (and Chief Judge) of the Ninth Circuit Court of Appeals, and in order to provide an “appearance of justice”, see Claiborne, supra, the Judicail Council felt compelled to make the request.
In any event, it appears that at least one or more of the same reasons that compelled the Judicial Council in Isaacs to request the Chief Justice to transfer the Kozinski Complaint to another circuit are applicable here as to judge Carney—the mandamus petition was basically a complaint of misconduct, i.e., that judge Carney was acting without authority, and should have compelled a transfer here as was the case with Kozinski.
2. Judge Richard Clifton
While all panel members of the Ninth Circuit mandamus decision in the case below precluded an “appearance of justice” for Applicant, judge Clifton specifically precluded such because Petitioner had filed a criminal complaint against him (and although Applicant withdrew the Complaint on an independent ground not related to the charges of the Complaint, the charges of the Complaint remained intact, although not subject to enforcement because of the withdrawal), and that provided an independent reason for Clifton not being impartial.
3. Judge Alex Kozinski
Again, Judge Kozinski had the same duty pursuant to Section 455(a) to recuse, but he had a special duty to promote a transfer of the mandamus petition to another circuit. That is, judge Kozinski was also named in the 2007 criminal complaint (and although the Complaint was withdrawn against him on an independent ground as well, the reasons for the Complaint remained), he had undergone a transfer experience himself in Isaacs , and as Chief Judge, he was empowered , pursuant to 28 U.S.C. sec. 291(a) , to make the request to the Chief Justice for the transfer, and he could have made the transfer request without any input from the remaining Ninth Circuit judges .
Moreover, even though Applicant here has predominantly relied on sec. 455(a) in arguing that the Ninth Circuit had a duty to transfer based on an appearance of injustice (because “an objective observer would entertain reasonable questions about the (Ninth Circuit’s) impartiality”, Liteky v. U.S. , 114 S. Ct. 1147 (1994)), the Ninth Circuit also exhibited a personal bias or prejudice towards Applicant after his case reached the appellate level. Applicant asserts that the Ninth Circuit, through erroneous and malicious means, attempted to have Applicant’s IFP status revoked in the district court, which would have foreclosed Applicant from proceeding and prosecuting his case in the district court and hindered his proceeding in this Court. Basically, the Ninth Circuit, relying on an error made by the district court Clerk’s Office (which had to be recognized by the Ninth Circuit), tried to use that error to have Applicant’s IFP status revoked. Briefly (as I can be), Applicant gave notice to the district court (Clerk’s Office) that he was appealing judge Carney’s decision (dismissing his case and denying the TRO post-appeal) through a petition for a writ of mandamus pursuant 18 U.S.C. sec. 3771(d)(3), see Appendix #4, and that he was concurrently filing a Supplemental mandamus petition in the Ninth Circuit. See Id. The district court clerk (finally, after the initial clerk, a supervisory clerk) concluded that the only way that the notice could be filed was as a regular notice of appeal of judge Carney’s decision. This was error. Applicant believes that the Clerk simply was unfamiliar with 3771(d)(3) appeals. But, the document itself clearly stated that it was not a notice of appeal, but a 3771(d)(3) appeal (or supplemental petition for a writ of mandamus)(both in the document’s heading and the text). See Id. However, even though the Ninth Circuit and its Clerk’s Office clearly are familiar with 3771(d)(3) appeals and has a specific Circuit Rule directed to them, see 9th Cir. Rule 21-5, it, nonetheless (and without contacting Applicant by mail or telephone to clarify the matter) , treated the 3771(d)(3) notice as a regular notice of appeal from a final judgment and assigned it a new and separate appellate number (from the already filed Petition for a Writ of Mandamus) and issued a briefing schedule.
Thereafter, the Ninth Circuit issued a Referral Notice, see Appendix #5, directing the district court to respond in 21 days as to why Applicant’s IFP status should not be revoked for filing a frivolous appeal (an appeal that Applicant never filed). After Applicant submitted two documents (one in the district court, a “correction” document, and one in the Ninth Circuit, a letter and returned documents, including the briefing materials), the district court , likely realizing it was being used for a nefarious purpose (i.e., revoking Applicant’s IFP status for an unjustified reason), never responded to the Notice (which caused Applicant’s IFP status to remain intact) and, albeit wrongfully, omitted the document from its Docket (as of this writing, the district court had not placed the document on its Docket). The Ninth Circuit kept the document on its Docket, but there is no response from the district court (and the 21 days has now past) as requested on the Ninth Circuit docket (and this Court can confirm that itself) . The Ninth Circuit subsequently dismissed the erroneous appeal, after its misguided efforts had failed, and, instead of vacating the appeal—which could have avoided laying blame on anyone for the erroneous appeal, the Ninth Circuit characterized the appeal as a “voluntary dismissal” by Applicant, thereby laying the blame for the erroneous appeal on Plaintiff, rather than itself; and it did so by “treating” the letter and materials Applicant had returned as a request by Applicant to voluntarily dismiss the appeal (again, an appeal that he never filed) without Applicant’s permission or consent or any action by Applicant . Applicant could not voluntarily dismiss the appeal because he did not file the appeal and the Ninth Circuit knew this.
Applicant contends that the Ninth Circuit knew from the Notice submitted by Applicant, see Appendix #4, that it was a supplement to the same appeal (already filed and numbered), and that Applicant was not filing a “new” appeal (which required a new number), and that it intentionally tried to use the district court error to get the district court (rather than itself—because it could have revoked Applicant’s IFP status for the so-called frivolous appeal in its own court—because only a district court revocation would apply to Applicant’s entire case, or would prevent Applicant from pursuing the case) to revoke Applicant’s IFP status, so that he would be unable to pursue the action or his case through the courts.
C. THE ENTIRE NINTH CIRCUIT HAD A CONFLICT OF INTEREST AS TO
APPLICANT’S COMPLAINT AND THE MANDAMUS PETITIONS
Most significant, in Count I of Applicant’s Complaint filed in the district court,
Plaintiff-Applicant alleged that the reason the U.S. Attorney’s Office refused to
prosecute Applicant’s criminal complaints was because of Applicant’s race or color and not because of the merits of the Complaints themselves. Therefore, if Applicant’s Count I is sustained, it would result in the revival or re-certification of the Complaints and require investigation and possible prosecution of all the individuals named in the Complaints, including the Ninth Circuit judges. Therefore, the entire Ninth Circuit had personal (and some had financial--based on restitution payments) interest in denying the mandamus petition and, as a consequence, in the dismissal of Applicant’s Complaint.
Finally, to the extent of the Ninth Circuit’s conflict of interest regarding Applicant’s mandamus Petition and district court complaint, it also had a duty to transfer the case pursuant to sec. 455(b)(1), where the Court had “personal knowledge of disputed evidentiary facts concerning the (mandamus) proceeding.” That is, at least some members of the Court, including judge Kozinski, know about the prior criminal Complaints filed and that they charged some members of the Ninth Circuit, and that Applicant-Plaintiff’s Complaint charge the prosecutor with refusing to prosecute for non-evidentiary reasons or based on Applicant’s race or color.
D. IT WAS A VIOLATION OF APPLICANT’S DUE PROCESS AND EQUAL
PROTECTION RIGHTS FOR THE NINTH CIRCUIT NOT TO HAVE TRANSFERRED
APPLICANT’S MANDAMUS PETITION TO ANOTHER CIRCUIT
FOR DECISION.
Applicant was deprived of his due process rights when his case was not transferred to another circuit because he was denied his right to have an impartial panel decide his mandamus petition and he was denied the right to a process that might have prevented him from receiving even the perception of a partial or biased panel by transferring his case to another Circuit, or at minimum, have judges from another circuit decide Applicant’s case.
Applicant was denied equal protection of the law because at least as compared to the Ninth Circuit’s (Judicial Council) treatment of judge Kozinski’s case in Isaacs, , that is, when the Ninth Circuit was required to evaluate the conduct of one of its members, i.e., judge Kozinski, rather than have any of its members evaluate judge Kozinski, it sua sponte, requested the Chief Justice assign another circuit to evaluate the case. Here, in Applicant’s case, when a member of the Ninth Circuit Court (judge Carney, by way of his designation) came before the Court for the Court’s evaluation of that judge’s ( judge Carney’s) conduct or misconduct, the Ninth Circuit appointed or assigned its own judges to decide the matter, rather than transfer the matter or request a transfer to a different circuit court. The Equal Protection Clause “keeps governmental decision makers from treating differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). And, it is well established that classifications based on race (and Applicant is Black) “are inherently suspect and subject to close judicial scrutiny.” Graham v. Richardson, 403 U.S. 365 (1971).
IV DECLARATORY RELIEF SOUGHT
Applicant seeks the following types of declaratory relief:
A. Declare that the Ninth Circuit Court of Appeals, under the circumstances of the case below, had a duty to transfer Applicant’s mandamus petitions to another circuit court for decision.
B. Declare that even if the Ninth Circuit Court of Appeals did not have a duty to
transfer Applicant’s mandamus petitions based on the specific facts or circumstances of the case, it was required to seek a transfer of the appeal to a different circuit based on Section 455(a) and/or due process considerations.
C. Declare that the Ninth Circuit’s failure to transfer or seek a transfer of Applicant’s mandamus appeal to a different circuit court, under the circumstances, was a violation of Applicant’s due process and equal protection rights.
V OTHER RELIEF SOUGHT
Applicant seeks the following other relief :
A. An Order vacating the Ninth Circuit panel’s mandamus decision in the Bray v. Department of Justice, et.al., case below.
B . A U.S. Supreme Court review of Applicant’s mandamus petition and
application for a temporary restraining order.
C. Such other relief as this Court deems necessary or proper.
VI PROBABLE SUCCESS OF EXPECTED MANDAMUS PETITION TO BE FILED IN THIS
COURT
Applicant intends to and expects to file a petition for a writ of mandamus in this Court based on the Ninth Circuit’s mandamus decision below, arguing that the panel below twice committed clear error, on two separate levels, in violation of federal law, in deciding Applicant’s mandamus petition below.
Simply put, Applicant filed two mandamus petitions (an original petition and a supplemental one) for a writ of mandamus in the Ninth Circuit pursuant to 18 U.S.C. sec. 3771(d)(3). The Ninth Circuit has a specific Circuit Rule, Cir. Rule 21-5, directed to sec. 3771(d)(3) appeals providing for advance notice of the intended filing. Applicant complied with this Rule and notified the Clerk’s Office of the intended filing, i.e., pursuant to sec. 3771(d)(3). Pursuant to sec. 3771(d)(3), all appeals are required to be decided in 72 hours (“The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed.”), or under no circumstances, longer than 5 days (“In no event shall proceedings be stayed or subject to a continuance of more than 5 days for purposes of enforcing this chapter.”). And, sec 3771(d)(3) requires that the reviewing court must write a reasoned decision if it denies relief in an appeal (“If the court of appeals denies the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion” )(emphasis added). There are no exceptions to the 72 hour and reasoned written opinion rule.
Applicant filed his first petition on or about August 8, 2012, which required a response from the Ninth Circuit Court of no later than August 11th or 12th , 2012 . On August 12th no response was forthcoming from the Ninth Circuit. On October 1, 2012, Applicant filed a supplemental petition, based on actions by the district court. The Ninth Circuit did not issue an order in response to the petitions until October 19, 2012, months after the original mandamus petition and weeks after the second or supplemental petition. Therefore, the Ninth Circuit twice violated sec. 3771(d)(3) in two separate ways. The Court violated the time requirement, 72 hours, and the reasoned opinion requirement (with the Ninth Circuit issuing an arbitrary and capricious , and false two-sentence Order absent any reasoning—simply a conclusory statement—the very type of statement the Rule prohibits), for both the original petition and the supplemental petition, without justification. Therefore, the Ninth Circuit committed clear error for which mandamus is warranted.
Mandamus is necessary because the underlying relief sought is a ruling on Applicant’s TRO, which requests relief for the deprivation of fundamental rights, that is, property and liberty rights (employment)—the right to repossess Applicant’s home and law office, which were wrongfully and unlawfully taken. In his TRO, Applicant has requested that he be immediately placed back into his home-law office.
Finally, one issue that would make the mandamus petition important is that this Court has never decided, to Applicant’s knowledge, what relief is available for an appellate court’s violation of sec. 3771(d)(3). Here, Applicant requests that the U.S. Supreme Court vacate the Ninth Circuit decision denying the mandamus petitions and review Applicant’s mandamus petitions and TRO motion as one type of relief. Another issue is : whether sec. 3771(d)(3) requirements are mandatory or precatory?
It appears that as an alternative to a petition for a writ of mandamus, that Applicant could also file a motion to vacate the panel’s mandamus Order below based simply on the panel’s violation of both provisions of sec. 3771(d)(3) twice .
CONCLUSION
For the foregoing reasons, Applicant requests Circuit Justice Anthony M. Kennedy
to grant the herein Application for declaratory and other relief.
________________ __________________________
Date LAURACK D. BRAY, Applicant
P.O. Box 611432
Los Angeles, California 90061
Tel: (805) 901-2693
APPENDIX
NO. PAGE
#1. PETITION FOR A WRIT OF MANDAMUS*………….…………………………………. Appx #1
#2. SUPPLEMENTAL PETITION FOR A WRIT OF MANDAMUS**………..………. Appx #2
#3. NINTH CIRCUIT’S MANDAMUS ORDER……………………………………………….. Appx #3
#4. NOTICE TO DISTRICT COURT RE: SECTION 3771(d)(3) APPEAL…………… Appx #4
#5. NINTH CIRCUIT REFERRAL NOTICE……………………………………………………… Appx #5
#6. AFFIDAVIT OF LAURACK D. BRAY……………………………………………………… Appx #6
*Contains Complaint and Application for a Temporary Restraining Order
**Contains District Court’s September 26, 2012 dismissal Order (and separately
attached to this document is a page of the District Court Docket showing the district court’s August 14, 2012 Order denying the TRO).
UPDATE--January 9, 2013
I'm still in the process of processing the application. There has been an improper delay in the process, but the process continues. I will discuss the delay more fully at a later date.
UPDATE--January 15, 2013 (MLK Jr.'s Birthday)
It's now time for a status report. But, before I provide the report, I will reflect on the purpose of this blog and other matters.
Regardless of whether I actually receive justice(i.e., the return of my home-law office and damages for the unlawful shutdown thereof) or not through this Supreme Court process, the primary purpose of this blog is to provide a view of how the "real" American justice or judicial process works(as opposed to the process selectively revealed by the mainstream media), especially as it relates to people who are poor and black. In this case, it is the civil process that is under review.
When a poor black person faces the prospect of entering the American judicial process, there is always a question mark. And, the question is always: will he or she receive justice from the court, be it civil or criminal? Rich black people also always face the question, just to a lesser degree, because of their wealth and/or prominence. White people, as a whole, do not "always" face this question. Generally, they don't face the question at all and the expectation is that they will receive justice from the judicial system. Poor, black people always face this question, because race-and-discrimination and/or racism continues to be a factor in this country, despite the so-called "post-racial" propaganda of some people in the country. For the record, I am poor and black. So, keep these points in mind as you view or review the proceedings regarding the filing and processing of this Application.
Another point to be made is that this case is now in the U.S. Supreme Court, which is the highest court of the land; and, I am a member of the Supreme Court Bar, which allows me to practice before the Supreme Court. Further, I've been a member for over 20 years. But, the important point that I want to stress is that because the Supreme Court is the highest court in the country, it is expected that it possesses the highest degree of integrity and dignity. And part of maintaining that integrity and dignity has to be the desire to assure the public that as few mistakes as possible are made with respect to the processing of the public's filings, be they petitions, applications, motions, etc., and that when mistakes are made, they will be corrected, as soon and/or expeditiously as possible. Indeed, that is an essential part of maintaining integrity and dignity, that is, recognizing a mistake, either by self detection or by having the mistake brought to the attention of the Court by a party, person , or some other entity, and, thereafter, expeditiously correcting the mistake, so that minimal harm is caused or produced by the mistake. And, it appears that special attention by the Court should be given to mistakes made by Supreme Court personnel or employees, because they are screened and hired by the Supreme Court itself and the Supreme Court's high degree of integrity and dignity are attached to them, that is, they are part of the Supreme Court. Therefore, when mistakes are made by Supreme Court employees, and those mistakes are brought to the intention of the Court, it appears that the Court would want to correct those mistakes sooner than it would ordinary or public mistakes(since these employees deal with numerous cases on a daily basis), to help assure the public that it doesn't exclude its own employees from its coverage when it comes to maintaining its high degree of integrity and dignity as the highest Court in the land. Indeed, just yesterday, in an article published in the L.A. Times, entitled "Worries rising in Sri Lanka after top judge is fired", January 14, 2013, regarding Sri Lankan President Mahinda Rajapaksa dismissing the "nation's first female chief justice" after she had been impeached, according to the Times, "The United States and the U.N. have voiced concern over the integrity of justice in the country in light of the case." So I'm hoping the Supreme Court is "concerned" about the "intergity of justice" that I receive in this case, as it proceeds. I want you the reader, be you local, national, or international, to keep this in mind as well.
Now, for the status of the Application.
Since filing the Application, it has now been returned twice, by two different clerks. On both occasions, it was returned improperly and in bad faith, and the only purpose the returns can serve is to create further litigation. To begin with, from the Application itself, both clerks could ascertain that I am poor and black, and a member of the Supreme Court Bar. While both "returns" were improper, the second return was "clearly" improper. I will discuss the return by each clerk in turn.
The first clerk, Jeffrey Atkins. First, why the return was improper. The return was improper because the application met the requirements for filing and should have been docketed and/or filed, and thereafter, submitted to Justice Kennedy for review. It wasn't. Instead, Atkins treated the Application as though it had been docketed and filed, and thereafter ruled on the Application himself by denying it. Subsequently, he returned it without it having actually been docketed, filed, or submitted to the justice. In his letter, Atkins states "The papers you submitted are not construed to be a petition for writ of certiorari", but only a Justice possesses the authority to "construe" or not construe an Application to be a writ of certiorari, see Purcell v. Gonzalez, 549 U.S._____(2006), per curiam, where "We construe the filings of the State and the county officials as petitions for certiorari; we grant the petitions; and we vacate the order of the Court of Appeals", at 1. Therefore, Atkins usurped the authority of Justice Kennedy and/or acted without authority and ruled on the Application himself, and thereafter returned the Application to me undocketed and unreviewed by Justice kennedy.
Second, Atkins' bad faith. After I received the returned Application, I called Atkins at the number he provided in his letter to obtain a clarification of the reason why my Application was returned and not docketed. He was not there, so I left a voicemail message. Atkins never returned my call, to this day. In the letter that he submitted with the returned Application, Atkins did not provide a reason for not docketing the Application. He simply stated that he was returning the application. This is a tell-tale sign that an adverse decision was issued arbitrarily and capriciously.
Next, Atkins insinuates that I have filed the Application to get around filing a petition for a writ of certiorari, "You may seek review of a decision only by filing a timely petition for a writ of certiorari", although the Application clearly indicates that my intention at this time is to file a writ of mandamus, not certitorari (although that could change), and in view of the fact that I am a member of the Supreme Court Bar and am familiar with certiorari petitions. I believe the insinuation was disrespectful.
The second clerk, Danny Bickell. Before I discuss why I believe Bickell's return of the Application was improper and made in bad faith, I must discuss my dialog with him. Bickell was altogether cordial and respectful with me, and I believe he handled our communications in a professional and courteous manner. I was first placed into contact with Bickell by a transfer from another clerk when I requested to speak to someone regarding the Application (after not hearing from Atkins), and I was put through to the Applications Section of the Court. Again, Bickell was courteous , professional, and respectful. At the end of our initial conversation, he directed that I return the Application materials back to the Clerk's Office and requested that I submit a lower court statute that would support jurisdiction for a single justice adjudicating my claim. I did so. However, at the time of our discussion, Bickell, I don't believe had read the contents of the Application (which involves some serious allegations), unless the Clerk's Office kept a copy of the returned materials.
After he received the materials, Bickell called me and left a message on my voicemail. After I contacted him in return, we again engaged in a discussion regarding whether the relief I sought could be adjudicated by a single Justice. At the end, our conversation got a little heated, but it still remained professional. I insisted that the statutes that I submitted provided a single justice with jurisdiction, and he insisted that they didn't. It actually came down to the term "court of appeal ". Bickell conceded that the statute would provide the entire Supreme Court with jurisdiction over my claims, but, he insisted that it did not provide a single justice with jurisdiction. I disagreed (believing that "court of appeals" included a single justice, especially because this was an equitable claim and I knew single justices handled equitable claims). In the end, Bickell indicated that he would not docket the Application and that he would return it to me. He indicated that he was relying in large part on the decision of Atkins, and at this time, he had likely actually reviewed the contents of the Application. I believe that this also factored into his decision. So, he did in fact return the materials to me. So, why do I believe his return was improper and made in bad faith? Primarily because after Bickell requested that I submit a writing identifying a lower court statute providing jurisdiction, I did submit the writing in the form of a memorandum, and in that memo, I requested Justice Kennedy to grant me an extension of time to file a certitorari or mandamus petition, because the expiration time is growing near for filing a certiorari petition. I cited to the specific statute that provides a single justice with jurisdiction, 28 U.S.C. sec. 2101(c), "A justice of the Supreme Court, for good cause shown, may extend the time for applying for a writ of certiorari for a period not exceeding sixty days". The only thing Bickell said regarding time constraints was that mandamus petitions did not have any time limits. Because of my extension of time request and the assertion of sec. 2101(c), the entire Application had to be docketed and submitted to Judge Kennedy, and it was "clearly" improper not to do so. Bickell acted in bad faith because the request for an extension of time was clearly identified in the memo under the heading of "Timeliness of Mandamus Petition and Veteran Status", so Bickell have to had read it before returning my materials to me. Finally, with the assertion of sec. 2101(c), Bickell had a "ministerial" duty to docket the Application, and thereafter submit it to Justice Kennedy for review. There was no discretion not to do so.
So, now I must again file an application to a single justice, and this time the subject matter, by statute, will clearly be within his jurisdiction.
Before signing off, today, coincidentally, is the birthday of Dr. Martin Luther King, Jr.; coincidentally, but how appropriate. I hope my continued fight for my rights and for justice helps him rest just a little bit better. And, because this litigation is continuing on his birhtday, perhaps my fight will be just a little bit more fruitful.
Until next time!
**UPDATE--February 1, 2013
Well, I have now filed a second Application to Circuit Justice Anthony M. Kennedy. This time the application is directed to the Supreme Court clerks' refusal to docket or file my in forma pauperis(IFP) motion and materials , the declaratory relief materials, and the request for an extension of time to file a certiorari petition. This time, in addition to renewing the request for an extension of time to file a certiorari petition (which is incorporated in a specific statute that specifically provides a single Justice with jurisdiction, i.e., 28 U.S.C. sec. 2101(c)), I have also identified and relied upon another statute that provides a single Justice with jurisdiction according to the statute itself, 28 U.S.C. sec. 1651(a) and particularly (b), and according to Supreme Court caselaw (cited in the application). And, I have re-submitted the original IFP motion and materials that were supposed to be docketed on December 24, 2012. We'll see what happens this time.
What is interesting about the current application is that it is an application for a mandatory injunction directed to the Clerk, requesting Justice Kennedy to order the clerk to docket or file the previously submitted documents, and it is the Clerk that has the responsibility to docket or file this document seeking action against himself. Is recusal necessary? If so, who acts on the application? Under the circumstances, must the Application automatically be submitted to Justice Kennedy or the Chief Justice of the Court?
In any event, as always (until the blog gets too long), I will post the second application below:
NO.______
_______________
SUPREME COURT OF THE UNITED STATES
________________
LAURACK D. BRAY, Applicant
v.
WILLIAM K. SUTER, CLERK
SUPREME COURT OF THE UNITED STATES, Respondent
_________________
APPLICATION FOR A MANDATORY INJUNCTION OR MANDAMUS
AND FOR A RENEWED REQUEST FOR AN EXTENSION OF TIME TO FILE A
CERTIORARI PETITION PURSUANT TO 28 U.S.C. secs. 1651(a) and (b), and 2101(c)
__________________
To the Honorable Anthony M. Kennedy, Circuit Justice for the Ninth Circuit :
Pursuant to Supreme Court Rules 22 and 39 and 28 U.S.C. secs. 1651(a) and (b), sec. 2101(c), and sec. 2201(a), Applicant Laurack D. Bray respectfully moves for an order requiring the Clerk, William K. Suter, to docket/file Applicant’s previously submitted motion to proceed in forma pauperis (IFP) , application for a declaratory judgment (including the supportive memorandum), and application for an extension of time within which to file a petition for a writ of certiorari or mandamus, pending the filing of and final action by this Court on an anticipated petition for a writ of mandamus or certiorari, directed to the Ninth Circuit panel issuing the decision on Applicant’s filed mandamus petition in that Court.
The mandamus/certiorari petition sought to be filed in this Court seeks to have this Court order the Ninth Circuit panel or another circuit court to comply with the dictates of 18 U.S.C. sec. 3771(d)(3) requiring an appellate court to issue a reasoned decision in 72 hours regarding Applicant’s 9th Circuit mandamus decision. Applicant contends that the Ninth Circuit panel committed clear error in violating sec. 3771(d)(3). Further, the Ninth Circuit panel’s decision denying Applicant’s mandamus petition basically affirmed an unlawful judgment of the United States District Court for the Central District of California that denied Applicant’s motion for a temporary restraining order and dismissed Applicant’s civil rights Complaint without authority to do so. Copies of the December 24th, 2012 IFP motion (including the declaration and certificate of service) and application for a declaratory judgment are separately re-submitted herewith , and the separately attached Memorandum in support of the Application for a Declaratory Judgment and the clerk’s letters are included herein. All are part of the Appendix for this Application.
I BRIEF PROCEDURAL HISTORY FOR THIS APPLICATION
The relevant procedural events are summarized as follows:
A. On December 24, 2012, Applicant submitted a motion to proceed in forma pauperis (IFP)(together with a Declaration and Certificate of Service) and an Application for a Declaratory Judgment to the Honorable Circuit Justice Anthony M. Kennedy, to and through the Clerk’s Office of the United States Supreme Court.
B. On or about January 4, 2013 (confirmation certified that the Application arrived
at the Supreme Court on December 28, 2012), Applicant received his returned IFP Motion and the Application for a Declaratory Judgment, both not docketed.
C. On or about January 8, 2013, Applicant, after having spoken with a Court clerk (and at the clerk’s direction) returned the Application, together with a supportive Memorandum addressed to the Clerk’s Office and Justice Kennedy, and the re-submitted December 24th, 2012 IFP motion materials.
D. On or about January 10, 2013(according to postal confirmation), the Clerk’s Office received Applicant’s IFP motion materials and the Declaratory relief application materials a second time.
E. On or about January 14, 2013(after having spoken with the same Court clerk again, Applicant received his returned IFP materials and application materials for the second time.
F. January 19, 2013: Present due date for filing a Petition for a writ of certitorari, being 90 days from the Ninth Circuit’s mandamus decision and the denied right to a rehearing . At the time of this submission, that due date has now past.
I BREIEF STATEMENT OF THE FACTS On December 24, 2012, Applicant submitted a Motion for IFP status (including declaration and a certificate of service), see Appendix A ( original papers separately submitted and re-submitted herewith), and an Application for a Declaratory Judgment , see Appendix B (original papers separately submitted and re-submitted herewith), to Circuit Justice Anthony M. Kennedy, via the Clerk’s Office of the United States Supreme Court. Admittedly, Applicant did not rely on or cite to any statute, but rather, he relied on equitable principles, and on his belief that declaratory relief is equitable relief and that it was clear that a single justice had jurisdiction over equitable claims.
On January 4, 2013, Applicant received the IFP materials and the application materials back for the first time. Included in the box of materials returned was a letter from the Clerk, William K. Suter, through Jeffrey Atkins (deputy clerk), returning the materials, see Appendix C (Suter-Atkins’ January 2, 2013 letter) . After receiving the materials, Applicant, on the same day that he received the materials, attempted to contact Atkins via telephone to get a clarification as to why the materials were returned. Atkins’ letter did not provide a reason. Id. Applicant did not get into contact with Atkins, and left a voicemail message per the telephone number Atkins had provided. Atkins never returned the call that day, or any other day, to this day.
On or about the next day, Applicant telephoned the Supreme Court Clerk’s Office to try and speak with someone about the return of the application. The Clerk’s Office transferred Applicant to the Application Section of the Office after Applicant told the answering clerk that Applicant was inquiring about an Application to a single justice. Danny Bickell, deputy clerk, answered the phone and we engaged in a brief conversation regarding Applicant’s submitted Application. At the end of the conversation, Bickell directed Applicant to return the Application materials and suggested that Applicant submit a writing that included a lower court statute or a statute that would provide jurisdiction for a single justice to adjudicate a request for a declaratory judgment, and he suggested that Applicant make the writing a part of his (Applicant’s) application. Applicant , in fact, did so. See Appendix D (Memorandum), at 2, where “Applicant herein, Laurack D. Bray, requests that this memorandum be treated as part of his Application, with respect to points and authorities in support of his Application.”
Bickell also indicated that he had never seen an application seeking declaratory relief before.
On or about January 8, 2013, Applicant forwarded the December 24, 2012 IFP materials, the Declaratory Judgment Application materials and a Memorandum directed to the Clerk and Circuit Justice Anthony M. Kennedy. See Appendices A, B, and D. In the Memorandum, Applicant did indeed cite to a statute, the Declaratory Judgment Act statute, 28 U.S.C. secs. 2201 and 2202, as providing jurisdiction for the Court and a single Justice to entertain and adjudicate the application for declaratory relief . The memo also included a request for an extension of time to file a petition for a writ of certiorari, as Applicant’s time to submit a certiorari petition was drawing near (January 19, 2013)(that date and time has now past). Applicant also indicated that he would be asserting veteran status as a basis for a waiver of fees or costs.
On January 11, 2013 or thereabout, Bickell contacted Applicant by telephone and left a voicemail indicating that he had received the Application materials. Finally, after a few more calls, Bickell and Applicant talked on the telephone. The two spoke primarily about sec. 2201. Bickell conceded that the entire Supreme Court had jurisdiction over Applicant’s application, but he declined to concede that a single Justice had jurisdiction, and in fact, argued that a single Justice did not. Applicant believed otherwise, and insisted that a single justice did have jurisdiction. There was no direct discussion of Applicant’s request for an extension of time to file a certiorari petition. The conversation concentrated on whether a single justice could adjudicate Applicant’s declaratory judgment claim; although Bickell did state, in passing, that there were no time limits for filing a mandamus petition, suggesting to Appellant that he had reviewed the request for an extension of time for certiorari or mandamus (in the Application, Applicant specifically stated that he would be seeking a mandamus petition—but, he made the request to file a certiorari petition to preserve his right to file either one and to provide the Court with that option if it chose to “construe” or treat the Application as a certiorari petition) .
During the conversation, Bickell also indicated that he was relying in large part on the influence of the decision of Atkins, who is a senior clerk as to Bickell, to return the Application. Applicant believes it was Atkins’ influence (and a review of the Application—based on Applicant’s belief, Bickell had not read the Applications’ contents during the initial conversation with Applicant ) that caused Bickell to change his attitude from the time Applicant and Bickell initially spoke to the next time they spoke, after Bickell received the Application.
In the end, Bickell stated that he would return the materials to me, over my objection. And, in fact, he did return the materials without docketing or filing the IFP motion, the application for declaratory relief, or the request for an extension of time to file a certiorari or mandamus petition, and without submitting the application materials and extension of time request to judge Kennedy. Included in the returned materials was a letter from Suter-Bickell, see Appendix E (Suter-Bickell January 11, 2013 letter), which stated, in part, “The Rules of this Court do not provide for the filing of a request for declaratory judgment from a single justice.” There was nothing in his letter about Applicant’s IFP motion or the request for an extension of time to file a certiorari or mandamus petition. Id.
This Application followed.
III QUESTIONS PRESENTED
1. Whether the Clerk of the Court, William K. Suter, clearly erred or clearly abused his discretion in usurping the authority of Circuit Justice Kennedy, or in acting without authority, by making the decision to construe or not construe Applicant’s Application for a declaratory judgment as a petition for a writ of certiorari (and thereafter not construing the Application as such) ?
2. Whether William K. Suter failed to perform his ministerial duty (and violated Supreme Court Rule 39.4) by not docketing Applicant’s IFP motion and Applicant’s Application for a Declaratory Judgment, which included Applicant’s request for an extension of time to file a certiorari petition?
3. Whether Suter clearly erred or clearly abused his discretion in not submitting the request for an extension of time to file a certiorari petition to Justice Kennedy for decision.
4. Does a single Justice have jurisdiction to entertain a request for declaratory relief?
IV REASONS FOR GRANTING THE INJUNCTION OR WRIT
A. SUTER FAILED TO PERFORM HIS MINISTERIAL DUTY IN NOT DOCKETING
APPLICANT’S IN FORMA PAUPERIS MOTION AND NOT
SUBMITTING APPLICANT’S APPLICATION FOR DECLARATORY RELIEF
AND FOR AN EXTENSION OF TIME TO FILE A CERTIORARI OR
MANDAMUS PETITION TO JUSTICE KENNEDY.
Once Applicant completed and submitted the motion to proceed in forma pauperis, the Declaration in support thereof, and the certificate of service to the Clerk’s Office, the Clerk’s duty to docket the IFP motion was ministerial. That is, pursuant to Supreme Court Rule 39.4, “When the documents required by paragraphs 1 and 2 of the Rule (IFP motion and declaration and application for declaratory relief ) are presented to the Clerk, accompanied by proof of service as required by Rule 29, they will be placed on the docket without the payment of a docket fee or any other fee.” (Emphasis added). The term “will” is a command, not an option or alternative. Therefore, when the aforementioned documents are presented to a clerk, they are required to be automatically placed on the docket, even before any decision is made regarding the Application, indeed, even before any decision is made regarding the qualification for IFP status(see Rule 39.5, which comes after .4, which allows a challenge to IFP status, but only after the motion has been docketed) . There is no place for any thought process by the clerk, or no discretion. Once the clerk confirms that the IFP motion, declaration, and certificate of service are present and complete (as to signature only—any other incompleteness must be questioned after docketing), he or she must docket both the IFP motion and the Application (or other document). Yet, on two separate occasions, the clerks failed or refused to docket the IFP materials (the same materials will be used with this Application). Therefore, their failure to docket the materials has to be due to either incompetence, based on an unfamiliarity with Rule 39.4 or bad faith or intentional misconduct for the purpose of denying Applicant access to the Court and Justice Kennedy. Applicant does not believe that the clerks, including Suter, are not familiar with Rule 39.4 (for it is an old, common rule and procedure, as opposed to a new, just established procedure). So, the clerks’ violation of Rule 39.4 and their failure to docket the IFP materials must have been done to deny Applicant access to the Court and Justice Kennedy. Only the clerks know for sure what their motivation was in refusing to docket the IFP materials. Applicant has his own ideas, but will not speculate here. But, by legal standards, this is at least a clear abuse of discretion or clear error committed by Suter in failing or refusing to docket the IFP materials.
Finally, because Rule 39 is specifically geared to provide poor people with access to the Court, if the clerks intentionally violated the Rule, and therefore, intentionally denied Applicant access to the Court and Justice Kennedy, then that would be intentional discrimination against Applicant because he is poor. But for the fact of Applicant being poor, he would not need to have IFP materials docketed in the first place. Moreover, Applicant is Black (and Suter and the other clerks knew this), so that would point to racial discrimination or a denial of equal protection of the law as well. Some added fuel to the fire is that in both letters sent to Applicant, there is no mention of Applicant’s IFP status (which would point to required docketing of the Application), so that the average person reading the letter would assume that Applicant was a non-poor Applicant (so that automatic docketing would not be required). This turn of events should cause the Court and Justice Kennedy at least a moment of pause. “This Court once had a great tradition: ‘All men and women are entitled to their day in Court.’ * That guarantee has now been conditioned on monetary worth. It now will read: ‘All men and women are entitled to their day in Court only if they have the means and the money.’ ” In re Amendment to Rule 39, 500 U.S. 13 (1991)(Justice Marshall, dissenting). “ * Our inviolable obligation to treat rich and poor alike is echoed in the oath taken by each Justice prior to assuming office. (Citation omitted): ‘I. . . do solemnly swear that I will administer justice without respect to persons, and “Transcending the clerical interest that supports the Rule is the symbolic interest in preserving equal access to the Court for both the rich and the poor. I believe the Court makes a serious mistake when it discounts the importance of that interest.” Id. (Justice Stevens, dissenting).
Once Applicant included the request for an extension of time to file a petition for a writ of certiorari or mandamus, see Appendix D, it became a ministerial duty for the Clerk to docket the Application and submit it to Justice Kennedy. “Specifically excluded from the clerk’s jurisdiction is the power to consider and act on applications for extensions of time. . . to file petitions for certiorari. . . .” (Emphasis added) . Gressman, E., Supreme Court Practice, 9th Edition (2007). “All such applications must be addressed to and acted upon by a Justice, or the entire Court”. Id. Therefore, the little discretion that Suter had, pursuant to Rule 22.1, to determine “if an individual Justice has authority to grant the sought relief,” evaporated with Applicant’s submission of the request for an extension of time to file a petition for certiorari or mandamus. And, his duty to docket the Application and submit it to Justice Kennedy became “ministerial”. Pursuant to 28 U.S.C. sec. 2101( c), “A justice of the Supreme Court, for good cause shown, may extend the time for applying for a writ of certiorari for a period not exceeding sixty days.” “Where the proper construction of a statute is clear, the duty of an officer called upon to act under it is ministerial in its nature, and may be compelled by mandamus.” Miguel v. mcCarl, 291 U.S. 442 (1934). “Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its chief use.” Id. “If the law direct him to perform an act in regard to which no discretion is committed to him, and which, upon the facts existing, he is bound to perform, then that act is ministerial, although depending upon a statute which requires, in some degree, a construction of its language by the officer (i.e., in this case, Rule 22.1).” Also, see Preferred Sites, LLC v. Troup County, 296 F.3d 1210 (11th Cir. 2002), where “the writ of mandamus may issue to correct. . . the failure to carry out a ministerial task,” and “is a writ designed to require an official to perform an act required by law”. Rule 39.4 requires Suter to docket the IFP materials and the Application for declaratory relief, and Rule 22.1 further requires him to docket the Application for declaratory relief, which includes the request for an extension of time to file a petition for a writ of certiorari .
B. THE CLERK CLEARLY ABUSED HIS DISCRETION IN USURPING THE AUTHORITY OF
JUSTICE KENNEDY AND/OR ACTING WITHOUT AUTHORITY IN MAKING THE
DECISION TO CONSTRUE OR NOT CONSTRUE APPLICANT’S APPLICATION
Suter, in his January 2, 2013 letter stated, “The papers you submitted are not construed to be a petition for writ of certiorari.” But, Suter, as Clerk, does not possess the authority to construe or not construe Applicant’s Application as a petition for a writ of certiorari, only a Justice or the Court may do so. See Purcell v. Gonzalez, 549 U.S._____(2006), where “We construe the filings of the State and the county officials as petitions for certiorari; we grant the petitions; and we vacate the order of the Court of Appeals;” and Barefoot v. Estelle, 463 U.S. 880 (1983), where “This Court, treating an application for stay of execution as a petition for a writ of certiorari before judgment, granted certiorari.” Although the Clerk is empowered to act on some matters itself without judicial confirmation, such as applications for extensions of time to file briefs or to designate parts of the record for printing in joint appendices, see Rule 30.4, construing an application as a petition for writ of certiorari is not one of them. Therefore, Suter usurped the authority of Justice Kennedy and acted without authority in finding that “The papers you submitted are not construed to be a petition for writ of certiorari.” Suter’s action was a clear abuse of discretion because he did not possess any discretion to make the decision, and that abuse may be curved by injunctive or mandamus relief. “(W)rit of mandamus may issue to correct a clear abuse of discretion. . . .” Preferred Sites, LLC. , supra.
Moreover, not only did Suter usurp the authority of Justice Kennedy in “not” construing the Application as a petition for writ of certiorari, but he also apparently acted on the Application itself (and denied it), because before a Justice can construe an application or other filing as a petition for certiorari, the application has to be docketed and submitted to him. Therefore, Suter apparently treated the Application as being docketed and filed, and submitted to himself, as a Circuit Justice, whereby he thereafter denied the Application (by sending it back to Applicant) and refused to “construe” it as a petition for certiorari before sending it back. In any event, the entire process was clear error or a clear abuse of his discretion(where none existed).
C. APPLICANT MEETS THE REQUIREMENTS FOR MANDATORY INJUNCTIVE RELIEF
Applicant herein has requested a mandatory injunction, ordering the Clerk of the Court , William K. Suter, to docket/file Applicant’s IFP motion , Applicant’s Application for declaratory relief, and his request for an extension of time to file a petition for a writ of certiorari. All of which Suter has refused to file after two opportunities to do so.
In Winter v. Natural Resources Defense Council, Inc., 555 U.S. ____ (2008), this Court identified the elements for obtaining injunctive relief : that one is (1) likely to succeed on the merits; (2) likely to suffer irreparable harm in absence of injunctive relief; (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.
Applicant is likely to succeed on the merits of his mandamus/certiorari petition because the Ninth Circuit, pursuant to 18 U.S.C. sec. 3771(d)(3) was required to issue a “reasoned” decision, that is, “the reasons for the denial shall be clearly stated on the record in a written opinion,” (emphasis added) “within 72 hours after the petition has been filed.” Instead, the Ninth Circuit took over two months to issue a decision, and that decision was not a reasoned opinion, rather, it was an arbitrary and capricious statement. The very kind of decision Section 3771(d)(3) prohibits and seeks to prohibit. And the Ninth Circuit violated 3771(d)(3) twice, because Applicant filed two separate mandamus petitions: one for the district court’s refusal to act and one for the district court acting without authority. The Ninth Circuit issued one arbitrary order for both district court abuses. Further, even if the 3771(d)(3) issue was raised in a certiorari petition instead of a mandamus petition, the question of the proper remedy for a violation of Section 3771(d)(3) would present an important question of first impression for the Court.
Moreover, even based on Ninth Circuit law alone, the Ninth Circuit’s mandamus decision is subject to summary reversal. That is, both a failure to act and acting without authority are “classic” bases for mandamus relief, see, e.g., the Ninth Circuit decision of Malone v. Calderon , 164 F.3d 1210 (9th Cir. 1999) , where Judge Reinhardt, in concurrence in the denial of rehearing en banc, suggested remedies for a judge’s failure to rule on a summary judgment motion. He stated that one could ask an appeals court “to order the district court to rule on (the) pending summary judgment motion forthwith or in the alternative to treat the district court’s failure to act as a denial and to review that denial.”
Applicant is likely to suffer irreparable harm without injunctive relief because he will be prohibited from filing his applications for relief and will be denied access to the Court to pursue his claims. Further, he will be denied the right to have his underlying TRO application reviewed, and this will cause Applicant to lose his right to repossess his home-law office in Ventura, CA. Applicant has already suffered irreparable harm, each day, by being deprived of his home-law office over the years, since he was illegally or unlawfully evicted from his home-law office in 2003. Moreover, the time for Applicant to file a petition for a writ of certiorari has now expired. So, the only way Applicant can gain his right to file a petition is for the Court to grant the writ and require the Clerk to file his previously submitted (and returned) request for an extension of time to file a certiorari petition (which was timely submitted). A loss of the right to file the petition or to provide the Court with an opportunity to construe the Application as a petition for a writ of certiorari would also be a denial of access to the Court (and since the time has now expired to file a certiorari petition, the denial of access to the Court is complete).
The balance of equities clearly tips in Applicant’s favor because Suter will not suffer any inequity from doing what he was required to do in the first instance, and the remaining parties are simply obtaining a windfall by not being required to do what the law would otherwise require them to do.
An injunction is in the public’s interest because it involves the achievement of civil rights, and the public has an interest in seeing that civil rights are enforced.
“A mandatory injunction is an extraordinary remedy used to effectuate full and complete justice by commanding the performance of a positive act.” Friess v. Quest Cherokee, L.L.C., No. 100,050, (Kan. June 5, 2009) (citing Mid-American Pipeline Co., 787 P.2d 716 (Kan. 1990). “The distinction drawn by the Court in Knapp(v. Lake Shore M R. Co., 197 U.S. 536(1905)) between mandamus and a mandatory injunction seems formalistic in the present day and age. . . .” Stern v. South Chester Tube Co., 390 U.S. 606 (1968). “(A) Circuit Justice of this Court apparently has authority. . . to grant. . . relief in the form of a mandatory injunction. . . .” Communist Party of Indiana, et al. v. Whitcomb, Governor of Indiana, et al., 409 U.S. 1235 (1972). But, “In order that it be available, the applicants’ right to relief must be indisputably clear.” Id. Applicant’s right to relief here is “indisputably clear”, especially as it relates to the docketing of the IFP motion and the attached application submitted therewith, which is required to be docketed automatically upon submission of the required documents (which were submitted).
D. A SINGLE JUSTICE IS AUHORIZED TO GRANT DECLARATORY RELIEF
In his January 11, 2013 letter, Suter stated, in part, “The Rules of this Court do not provide for the filing of a request for declaratory judgment from a single Justice.” See Appendix E. Applicant contends this is erroneous. Although Supreme Court Rule 22 itself does not identify or specify what types of matters are within the jurisdiction of a single Justice, it is clear that declaratory relief is a type of relief that a single Justice can issue. Primarily, because it is clear that a single Justice is authorized to grant injunctions, although sparingly, see Brown v. Gilmore, 533 U.S. 1301 (2001)(Rehnquist, J. , in chambers) and Turner Broadcasting System v. F.C.C., 507 U.S. 1301 (1993)(Rehnquist, J., in chambers)(in both cases pursuant to the All Writs Act), and because “Congress plainly intended declaratory relief to act as an alternative to the strong medicine of injunction. . . .” Steffel v. Thompson, 415 U.S. 452 (1974). Further, “there is little practical difference between injunctive and declaratory relief”. In re Gary Gillis, 836 F.2d 1001 (6th Cir. 1988).
Pursuant to 28 U.S.C. sec. 2201(a), “any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” (Emphasis added). Again, the term “any court” in sec. 2201(a) must mean a single Justice as it pertains to the Supreme Court, because declaratory relief, like a stay, is merely equitable relief. And, it’s clear a single Justice has authority to issue a stay, see Renaissance Arcade v. Cook County, 473 U.S. 1322 (1985)(Stevens, J. , chambers)(“Petitioners filed an application for a stay with me in my capacity as Circuit Justice for the Seventh Circuit”) and Philip Morris USA,Inc. v. Scott, 561 U.S. ____(2010)(Scalia,J. , chambers)(“The applicants have asked me, in my capacity as Circuit Justice for the Fifth Circuit, to stay the judgment until this Court can act on their intended petition for a writ of certiorari”; and “A single justice has authority to enter such a stay”). Indeed, the Declaratory Judgment Act itself not only authorizes declaratory relief, but also “confers ‘unique and substantial discretion’ upon federal courts, including discretion whether to entertain, stay, or dismiss the action.” Olympus Aluminum Products, Inc. v. Kehm Enterprises, Ltd., 930 F. Supp. 1295(N.D. Iowa 1996) (emphasis added).
Therefore, the fact that declaratory relief has never been sought before (according to clerk Bickell, he had never seen an application for declaratory relief before) does not mean that it is not within the purview of a single Justice’s authority or jurisdiction. And, because a declaratory judgment “is a much milder form of relief than an injunction”, Steffel v. Thompson, supra, it stands to reason that if a single Justice can grant injunctive relief and stay relief, that he or she can grant declaratory relief. “The express purpose of the Federal Declaratory Judgment Act was to provide a milder alternative to the injunction remedy. . . .” Id.
E. APPLICANT RENEWS HIS PREVIOUS REQUEST FOR AN EXTENSION OF TIME TO
FILE A PETITION FOR A WRIT OF CERTIORARI BASED ON THE JANUARY 8, 2013
REQUEST.
As of January 19, 2013 or thereabouts, Applicant’s time to file a petition for a writ of certiorari has expired. However, on January 8, 2013, Applicant requested an extension of time to file a certiorari petition from Circuit Justice Anthony M. Kennedy, but that request and application was improperly returned to Applicant. Nonetheless, since that request was timely submitted, and if the Circuit Justice finds that it was improperly withheld from his consideration, Applicant renews his request for an extension of time to file a certiorari petition and request that it be retroactively applied. And, since there was no good cause reason for the clerk not to submit the request to Justice Kennedy when first submitted (and in fact there was a bad faith reason—to deny Applicant access to the Court), Justice Kennedy should now rule on the request retroactively.
Pursuant to 28 U.S.C. sec. 2101(c ), “A justice of the Supreme Court, for good cause shown, may extend the time for applying for a writ of certiorari for a period not exceeding sixty days.” Part of Applicant’s good cause shown is the Supreme Court’s clerk’s bad faith in refusing to submit the request to the Justice in a timely manner, which would have avoided a renewed request. Also, without the extension of time, Applicant will have lost his right to file a certiorari petition, as the time has now past for filing the petition. Simultaneously, Applicant has now been denied his right of access to the Court; but, an extension of time to file the petition would extend Applicant’s time to gain access to the Court.
V SPECIFIC RELIEF SOUGHT
Applicant seeks the following specific relief:
A. Order William K. Suter or Supreme Court Clerk and any and all deputy clerks under the supervision of Suter and/or the Clerk’s Office to docket Applicant’s in forma pauperis motion and related papers (initially submitted on December 24, 2012, and again re-submitted herewith).
B. Order William K. Suter or the Supreme Court Clerk and any and all deputy
clerks under Suter’s or the Clerk’s Office’s supervision to docket, file, and submit
Applicant’s Application or request for an extension of time to file a certiorari petition to Justice Kennedy, and to treat the request as if filed on January 8, 2013, when the initial request was made.
C. Order William K. Suter or the Supreme Court Clerk and any and all deputy
clerks under Suter’s supervision to docket , file, and submit Applicant’s Application for a declaratory judgment (including the January 8, 2013 Memorandum) to Justice Kennedy for his review and consideration.
VI OTHER RELIEF SOUGHT
A. That relief sought in Applicant’s Application for a Declaratory Judgment.
B. That the Clerk’s Office be restrained from improperly processing any of Applicant’s future filings in this or any related matters.
C. Such other relief as this Court deems necessary and/or proper.
VII PROBABLE SUCCESS OF EXPECTED CERTIORARI OR MANDAMUS PETITION TO
TO BE FILED IN THIS COURT
Applicant intends to and expects to file a petition for a writ of mandamus or certiorari in this Court based on the Ninth Circuit’s mandamus decision below, arguing that the panel below twice committed clear error, on two separate levels, in violation of federal law, in deciding Applicant’s mandamus petition below.
Simply put, Applicant filed two petitions (an original petition and a supplemental one) for a writ of mandamus in the Ninth Circuit pursuant to 18 U.S.C. sec. 3771(d)(3). The Ninth Circuit has a specific Circuit Rule, Cir. Rule 21-5, directed to sec. 3771(d)(3) appeals providing for advance notice of the intended filing. Applicant complied with this Rule and notified the Clerk’s Office of the intended filing, i.e., pursuant to sec. 3771(d)(3). Pursuant to sec. 3771(d)(3), all appeals are required to be decided in 72 hours (“The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed.”), or under no circumstances, longer than 5 days (“In no event shall proceedings be stayed or subject to a continuance of more than 5 days for purposes of enforcing this chapter.”). And, sec. 3771(d)(3) requires that the reviewing court must write a reasoned decision if it denies relief in an appeal (“If the court of appeals denies the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion” )(emphasis added). There are no exceptions to the 72 hour and reasoned written opinion rule.
Applicant filed his first petition on or about August 8, 2012, which required a response from the Ninth Circuit Court of no later than August 11th or 12th , 2012 . On August 12th no response was forthcoming from the Ninth Circuit. On October 1, 2012, Applicant filed a supplemental petition, based on actions by the district court. The Ninth Circuit did not issue an order in response to the petitions until October 19, 2012, months after the original mandamus petition and weeks after the second or supplemental petition. Therefore, the Ninth Circuit twice violated sec. 3771(d)(3) in two separate ways. The Court violated the time requirement, 72 hours, and the reasoned opinion requirement (with the Ninth Circuit issuing an arbitrary and capricious two-sentence Order absent any reasoning—simply a conclusory statement—the very type of statement the Rule prohibits), for both the original petition and the supplemental petition, without justification. Therefore, the Ninth Circuit committed clear error for which mandamus is warranted.
Mandamus is necessary because the underlying relief sought is a ruling on Applicant’s TRO, which requests relief for the deprivation of fundamental rights, that is, property and liberty rights (employment)—the right to repossess Applicant’s home and law office, which were wrongfully and unlawfully taken. In his TRO, Applicant has requested that he be immediately placed back into his home-law office.
Finally, one issue that would make the mandamus petition important is that this Court has never decided, to Applicant’s knowledge, what relief is available for an appellate court’s violation of sec. 3771(d)(3). Here, Applicant requests that the U.S. Supreme Court vacate the Ninth Circuit decision denying the mandamus petitions and review Applicant’s mandamus petitions and TRO motion as one type of relief. Another issue is : whether sec. 3771(d)(3) requirements are mandatory or precatory?
It appears that as an alternative to a petition for a writ of mandamus, that Applicant could also file a motion to vacate the panel’s mandamus Order below based simply on the panel’s violation of both provisions of sec. 3771(d)(3) twice .
CONCLUSION
For the foregoing reasons, Applicant requests Circuit Justice Anthony M. Kennedy
to grant the herein Application for a mandatory injunction and renewed request for an extension of time within which to file a petition for a writ of certiorari or mandamus and other relief.
_______________ _________________________
Date LAURACK D. BRAY
P. O. Box 611432
Los Angeles, California 90061
Tel. : 805-901-2693
Cc: Honorable Circuit Justice Anthony M. Kennedy
Honorable Chief Justice John G. Roberts, as Administrator of the Court
APPENDIX
NO. PAGE
A. IN FORMA PAUPERIS MOTION (and materials,
from December 24, 2012, separately re-submitted herewith)………….. Record
B. APPLICATION FOR A DECLARATORY JUDGMENT (and materials,
from December 24, 2012, separately re-submitted herewith) …………. Record
C. WILLIAM K. SUTER’S JANUARY 2, 2013 LETTER (Suter-Atkins Letter) ….. Appx C
D. JANUARY 8, 2013 MEMORANDUM (separately attached to and
part of Application for Declaratory Judgment)…………………………………… Appx D
E. WILLIAM K. SUTER’S JANUARY 11, 2013 LETTER (Suter-Bickell Letter)…. Appx E
I will also submit the application as a separate blog.
Until next time.
**UPDATE--February 13, 2013
Now, the second Application has been returned; again, improperly, in bad faith, and discriminatorily. And, to add insult to injury, the several Justices who were sent courtesy copies also returned their copies through the same Clerk that I have charged with abusing authority and illegally denying me access to the Court, with part of that illegality being discrimination based on my being poor and black. Therefore, the Justices' actions represent a confirmation and ratification of the clerks' actions regarding the two applications, that is, since the Supreme Court has been presented with an opportunity to correct the abuses of the clerks, and has chosen instead to support or ratify their abuses, the actions of the clerks are now considered actions of the Supreme Court itself, although I will still address them separately in seeking further relief.
The return of the Application was improper because all requirements were met for the Application to be received, docketed, filed, and submitted to Justice Kennedy for review. This time there could be no question about Justice kennedy's jurisdiction or authority to review the Application. In fact, for one type of relief sought, i.e., an extension of time to file a certiorari petition, the subject matter is specifically or uniquely within the authority of a single Justice. See 28 U.S.C. sec. 2101(c).
The return was made in bad faith because even after one clerk claimed that the reason the prior application was not received and filed was because Court Rules does not permit the submission of an application for declaratory relief to a single justice, when application for declaratory relief was not the basis of the application, and a request for an extension of time to file a certiorari petition (together with a request for injunctive relief) was, the Clerk's Office still refused to process the Application, indicating that the issue of seeking declaratory relief as a remedy, is not the real reason for refusing to file the Application. Furthermore, because any other reason would not be a legitimate reason for the returning the Application (because there is no legitimate reason), this presents additional evidence of bad faith.
Finally, the return of the Application, as well as the other materials, was discriminatory because it discriminates against me as a poor person, as a Black American, and as a veteran. Were it not for the fact that I have to file an IFP motion, the Application would have to be filed upon payment of the fees, after meeting the remaining requirements, which were met. Furthermore, because the Court has not responded to my motion for veteran status, I am being discriminated against as a veteran as well. Finally, because some of the underlining claims in my declaratory judgment application is claims against white judges, and I am Black, I believe that race is at least a factor in my applications being returned also.
In a letter submitted by Suter with the return of the Justices' courtesy copies of the second Application, Suter, in attempting to respond to part of the Application (that part addressed to an extension of time to file the cert petition), advances false facts(by ignoring a previous filing) in order to try and justify the return of the application and denying me access to the Court. I would otherwise return that letter to him, but for the fact that I will use it as evidence in a future action.
Knowing that very few petitions for a writ of certiorari are granted by the Supreme Court each term (out of thousands)(and probably even fewer mandamus petitions), each of the clerks (three deputy clerks and Suter) has consistently offered me information and/or suggestions about and encouraged me to file a certiorari or mandamus petition, while refusing to file the document that I want to file and have a right to file. And this, in view of the fact that I am member of the Supreme Court Bar and am familiar with both certiorari and mandamus petitions. And, in my view, this is the same idea that the Ninth Circuit operated under when it violated a federal statute, 18 U.S.C. sec. 3771(d)(3) in issuing an arbitrary decision in my underlining case, i.e., that I would file a writ of certiorari, which would likely be denied. Well, that didn't happen. It may very well be that I ultimately file one or the other, certiorari or mandamus, but it would not have been done how the Ninth Circuit expected it to be done.
But first, I must address the denial of my constitutional right to access to the Supreme Court by the Supreme Court. I will inform you of the next step when it happens. Bye for now.
So, now I must proceed to the next step. As always I will inform you.
**UPDATE--February 28, 2013
I have now wrote a letter to my California Senator, Barbara Boxer, seeking assistance in addressing the Supreme Court's denial of access to the Court to me. Rather than publish that letter here, I will refer you to either the blog on the "2nd Application to Circuit Justice Anthony Kennedy. . .", or the blog entitled "An Open Letter to Senator Barabara Boxer. . . ."
Until next time.
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