2nD APPLICATION TO CIRCUIT JUSTICE ANTHONY M. KENNEDY, RE: SUPREME COURT CLERKS' ERRORS OR ABUSES: If Errors or Abuses are Found, Will They be Corrected?

Los Angeles, California

April 18, 2013
Current or today's date

February 1, 2013
Original date

**UPDATE (Denotes new and/or current information)


On January 30, 2013, I filed a second Application directed to Circuit Justice Anthony M. Kennedy, this time seeking a mandatory injunction directing that the Clerk docket or file the previously submitted applications/motions for in forma pauperis status, for declaratory relief, and for an extension of time to file a certiorari petition (I also filed a motion--requested the IFP motion be treated as a veteran's motion-- and Declaration to proceed as a veteran--in terms of a waiver of filing fees). The first Application was a request for a declaratory judgment. Obviously, it never made it to Justice Kennedy, which now requires the submission of this Application. The title of the blog for the first Application is: "Application to Supreme Court Justice Anthony M. Kennedy, Re: The Ninth Circuit's Failure to Transfer the Bray v. Dept. of Justice Mandamus Petition to Another Circuit for Decision".

This Application process, as well as the previous Application, evolves from the United States District Court, Central District of Cal. case of Bray v. Department of Justice, et.al., No. CV-125704(CJC), which is basically a civil rights case centered around claims that I brought against a multitude of individuals involving misconduct by state and federal government officials in and out of the courtroom.

Conjunctively, I have produced another blog, actually the original blog, to try and show how the real judicial or justice process works when it serves a poor and black litigant. And, of course, my position is that it clearly works differently. The original blog is entitled, "BRAY V. DEPARTMENT OF JUSTICE, ET. AL. NO. CV-12-5704CJC(RZ), USDC, C.D., CA.: HOW THE JUDICIAL SYSTEM IN CALIFORNIA WORKS IF YOU ARE POOR AND BLACK". Reading that blog first will provide you with some background on me and the case, including my perceptions of the clerks in the district court, as to their impartiality. Those comments regarding the district court clerks would apply equally here. I don't believe the clerks who are the subject of the herein Application acted impartially as a whole, although I do believe one began acting impartially, but did not conclude that way.

So, I have identified, in the herein Application, what I perceive are errors or abuses by the Supreme Court clerks handling the processing of my previously-filed applications materials. And, we will see, if errors are found, if they are corrected.

The Application for a mandatory injunction is as follows:

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



**UPDATE--February 13, 2013

Well, the abuses (at this point, after giving the benefit of the doubt by labeling them "errors", I will call them as I see them and what they actually are) were not corrected, and moreover, the properly filed Application, as well as the previous` Application, was improperly and deliberately returned. Further, the courtesy copies that I sent to several judges themselves, including the Chief Justice, were also returned, through the same Clerk that I sought mandamus relief against. That means that the actions by the Clerk were ratified by the Supreme Court itself. Therefore, the actions of the Clerk are actions of the Supreme Court itself. And, since I have alleged, and continue to allege and declare that the Clerk has improperly denied me access to the Court, and has done so, at least in part, because I am poor and black, I now declare that the Supreme Court has done so, in violation of the U.S. Constitution, pursuant to both the due process and equal protection provisions. So, what do you do when the highest Court in the land, instead of interpreting the law, violates the law, and especially fundamental constitutional law? We'll see.

How ironic is it? The Supreme Court is now deliberating over the case of Fisher v. University of Texas, which "revisits the constitutionality of a public university's affirmative action program that takes race into account in its admissions process", Williamson, T., "From the President", Washington Lawyer,February 2013, while simultaneously discriminating against a prospective poor and black litigant before its own Court.

If the NAACP really wants to demonstrate that it is still relevant, this is the type of matter that would do it. If the NAACP utilized resources to fight a "soda pop" issue in New York, surely it would utilize some resources to address the denial of basic or fundamental rights, i.e., access to the court, due process, and equal protection of the law, by the United States Supreme Court itself.

In any event, when I take the next step in addressing the denial of my constitutional rights by the Supreme Court, I will inform you.


**UPDATE--February 28, 2013 (the last day of Black History Month)

I have now sent a letter to Senator Barbara Boxer requesting her assistance in gaining access to the Supreme Court. That letter is re-published below (minus the exhibits identified in the letter):

LAURACK D. BRAY, ESQ.
FEDERAL ATTORNEY
P.O. BOX 611432
LOS ANGELES, CALIFORNIA
TEL: (805) 901-2693

February 26, 2013
Black History Month


Senator Barbara Boxer
Office of Senator Barbara Boxer
112 Hart Senate Office Building
Washington, D.C. 20510

Dear Senator Boxer:

My name is Laurack D. Bray, and I am presently a resident of Los Angeles, California. I am writing to seek your assistance as my Senator representative in Congress. I’m writing you and seeking assistance from you because as I have attempted to exercise my legal and constitutional rights in the Supreme Court of the United States, I have been met with what I perceive has been abuse of authority, violation of Supreme Court Rules and/or law by the Supreme Court itself, and refusal of the Supreme Court to correct the misconduct of its clerks. The combination and culmination of which have resulted in the Supreme Court’s denial of my constitutional rights to access to the Court and equal protection of the law.

I am a poor, Black, veteran, pro se, lawyer, and I was the same when I attempted to exercise my statutory and constitutional rights to gain access to the Supreme Court to have my case and related matters reviewed by the Court as an appeal of the Ninth Circuit’s decision in the United States District Court, C.D. of California case of Bray v. Department of Justice, No. 12-5704CJC . The Ninth Circuit’s decision is in the form of a denial of a writ of mandamus (which charged a district court judge, Cormac J. Carney, with acting without authority in ruling on my district court case).

I am Black by birth. I am poor by racial discrimination in the state and federal courts in California (but, I am not going to do what Christopher Dorner did; although, I absolutely feel what he felt and I absolutely understand why he did what he did) . I am a veteran by serving three years of active duty service in the U.S. Army during the Vietnam War Era (and I received an honorable discharge) . I am a lawyer by graduating from Howard University law school, passing the bar, and practicing the law for over 25 years now (I also happen to be a member of the Supreme Court Bar, which means I am licensed to practice before the Court); and, I am proceeding pro se because I could not find any courageous lawyers to take on the issues in my district court complaint, which involves, among other things, allegations of misconduct by state and federal judges.

And, while I am writing for myself, regarding the facts and circumstances of my experience before the Supreme Court, I am also writing on behalf of any other similarly-situated poor, black, pro se litigants who have experienced the same or similar circumstances as I have in attempting to gain access to the Supreme Court to have their claims or cases heard . While I have not conducted a survey or sought responses as to any other prospective and/or respective litigants, I am convinced that I am not the only one who has experienced what I experienced while attempting to gain access to the Supreme Court as a poor, black, litigant (who happens to be a lawyer). I believe this because regarding one Supreme Court Rule, Rule 39 infra, even I, as an attorney (and a member of the Supreme Court Bar) had to read the rule more than once to ascertain its actual requirement of me and court clerks. Not that the Rule is overly complex or complicated, because it’s not, but it does have moments of complexity. But in order to understand its true directive to Court clerks, I had to have a second take. And, it is the second take that proved to me that Supreme Court clerks, in my case, were violating that Rule. So, I am convinced that other IFP litigants, who are not lawyers, and who have been denied access to the Court, likely did not realize the right (to access to the Court) that they possessed.

Senator Boxer, there are two specific issues that I would like you to address: (1) the Supreme Court’s denial of access to the Court to me (and, conjunctively, the denial of my constitutional rights to : petition the government, due process of law, and equal protection of the law) ; and (2) the feasibility of : (a) civil rights legislation to supplement and implement a Supreme Court Rule that is intended to protect and enforce the rights of IFP litigants, and (b) civil rights legislation to supplement and implement a Supreme Court Rule that is intended to allow prospective litigants the right to gain access to the Court by submitting an application to a single Supreme Court Justice.


Regarding the first issue, the denial of access to the Court, I would like you to pose some questions to Chief Justice Roberts; questions that I, as a prospective litigant, could not pose to the Chief Justice myself, but, that affect my fundamental rights. “The right of access to the courts is basic to our system of government, and it is well established today that it is one of the fundamental rights protected by the Constitution.” Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983). Further, “The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship. . . .” Id. And, “Equality of treatment. . . is granted and protected by the Federal Constitution.” Id. Finally, “The right of access to the courts. . . is founded in the Due Process Clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights.” Id.

Before I present the questions, I will offer a:

Brief Background

After the Ninth Circuit issued its decision in the district court case of Bray v. Department of Justice, I filed a motion and supportive declaration to proceed in forma pauperis (IFP) in the Supreme Court. And, because I believed that the Ninth Circuit ought not have exercised jurisdiction over my appeal in the first place, in conjunction with the IFP application, I also submitted an application for declaratory relief, to be submitted to a single Justice, in this case, Justice Anthony M. Kennedy.

The requirements for the Supreme Court Rules dealing with both the IFP motion and the declaratory judgment application were met ; however, an issue was subsequently raised regarding the declaratory relief application, but that issue, as will be seen infra, was of no consequence as to the denial of access to the Court. Especially because I also supplemented the declaratory judgment application with a request for an extension of time to file a petition for a writ of certiorari, which eliminated the declaratory judgment issue.

I subsequently filed another application, this time for a mandatory injunction against the Clerk and a renewed request for an extension of time to file a certiorari petition.

The IFP motion and applications were all returned without docketing or filing three times , by three different deputy clerks and the Court Clerk himself, and each time they were returned, there was no explanation or reason given as to why the documents were not docketed or filed. On one occasion a reason was offered as to why the application was not submitted to Justice Kennedy, i.e., that there was no provision in the rules for submitting a declaratory judgment to a single Justice. But, again, no reason was given for the IFP motion not being docketed or filed. I will submit the three letters offered with the returned document as Exhibits #1, #2, and #3 here (NOTE: Even though all clerks suggested or advised me as to the filing of a petition for a writ of certiorari or mandamus, none of the clerks provided a reason why the IFP motion and the declaratory judgment application were not docketed or filed. Also note: I am a “Mr.” and not a “Ms.”, and even though I left a message with one clerk and actually spoke with another who addressed me as “Mr. Bray”, the Court, through the clerks, still sent out the form letters with “Ms.” instead of “Mr.”) .

Even though this letter is not intended to be a legal document, per se, I must provide some discussion of the applicable Supreme Court Rules and a federal statute , 28 U.S.C. sec. 1915, in order to provide you with proper clarification of the Supreme Court’s denial of my constitutional due process right of access to the Court.

When Congress established the IFP statute, 28 U.S.C., sec. 1915, the statute was(is) “intended to guarantee that no citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, ‘in any court of the United States’ solely because his poverty makes it impossible for him to pay or secure the costs.” Adkins v. E.I. DuPont de Nemours & Co., Inc., 335 U.S. 331 (1948)(emphasis added). Therefore, the primary purpose of sec. 1915 was(is) to provide poor people with access to the courts, the same access as those with money or the ability to pay for access. And, it is clear that sec. 1915 applies to the Supreme Court. “Under (sec.) 1915(a) ‘any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor. . .” (citing sec. 1915(a)). Perroton v. Gray, 958 F. 2d 889 (9th Cir. 1992). “Under that section a ‘court of the United States’ is defined as the Supreme Court of the United States, courts of appeals, district courts. . . .” Id. (citing 28 U.S.C. sec. 451). I relied on sec. 1915 to gain access to the Supreme Court to prosecute my appeal of the Ninth Circuit’s “decision” in Bray v. Department of Justice (and the first step in that appeal was my filing an application for a declaratory judgment).

Pursuant to Section 1915 and Supreme Court Rule 39 (which, apparently, is intended to implement 28 U.S.C. sec. 1915 in the Supreme Court), I filed a motion for leave to proceed in forma pauperis (IFP), together with a declaration, and the applicable copies of the application for a declaratory judgment to be submitted to Justice Anthony M. Kennedy. Additionally, I also filed an indigency motion and declaration pursuant to Rule 40, as a veteran.

Subsequent to filing the IFP motion and the application, I filed a Memorandum with a request for an extension of time to file a petition for a writ of certiorari (as the expiration time for filing a certiorari petition was growing near). See Exhibit #4 (Memorandum).

Finally, I filed a second application to Justice Kennedy for a mandatory injunction against the Court Clerk for the clerk’s refusal to perform a ministerial duty. See Exhibit #4 (Application). Neither the IFP motion nor the applications were docketed or filed with the Court, and no explanations were provided as to why they weren’t docketed.

Now , for how my statutory rights and constitutional due process rights to access to the Supreme Court of the United States were denied.

Supreme Court Rule 39.4 states, “When the documents required by paragraphs 1 and 2 of this Rule (i.e., IFP motion and declaration and applications for declaratory relief and mandatory injunctive relief) are presented to the clerk, accompanied by proof of service as required by Rule 29(and proof of service was provided), they will be placed on the docket without the payment of a docket fee or any other fee.”

After I fully complied with the requirements of Rule 39.4, the Clerk nonetheless refused to docket the IFP motion or the applications on three separate occasions (two original submissions and one return submission), without any explanation as to why the documents were not docketed pursuant to Rule 39.4. Therefore, on three separate occasions, Supreme Court clerks, without explanation, violated Rule 39.4, refused to docket the IFP documents, and denied me access to the Court.

Because the time was drawing near for me to file a petition for a writ of certiorari in a timely fashion, I timely requested an extension of time within which to file a certiorari petition from Justice Kennedy. The Clerk refused to submit the request to Justice Kennedy, so naturally, the request was not acted upon nor granted, and the time has now expired for me to file a certiorari petition. Therefore, I have now been denied the primary vehicle for review of the Ninth Circuit’s decision. And, necessarily, I have been denied my right to access to the Court, in violation of 28 U.S.C. sec. 1915, a congressional statute.

Because it was the Clerk that initially violated my rights, denied me access to the Court, and refused to perform a ministerial duty, i.e., docket the IFP and application documents , I filed an application for submission to Justice Kennedy seeking a mandatory injunction to require the Clerk to perform his ministerial duty to docket the IFP documents and submit the applications to Justice Kennedy. I also renewed my request for an extension of time to file a petition for a writ of mandamus.

However, instead of the Supreme Court acting on the injunction application, the Court allowed the Clerk himself ( rather than recuse himself), to respond to an injunction against him. So, the Clerk , naturally, refused to docket the application, in violation of Rule 39.4, and refused to submit it to Justice Kennedy, in violation of Supreme Court Rule 22. Further, I sent courtesy copies of the injunction application to Chief Justice Roberts and Justices Kennedy and Ruth Bader Ginsburg. Those Justices, in turn, allowed the clerk to return their courtesy copies. Consequently, the actions of the Clerk are now the actions of the Supreme Court itself. Thus, it is the Supreme Court that has denied me statutory rights, pursuant to 28 U.S.C. sec. 1915 and Supreme Court Rules 39, 22, and 12, and constitutional rights, pursuant to the U.S. Constitution, particularly the First and Fifth Amendments (and the Due Process Clause—both due process and equal protection of the law). Since the Court denied me access without providing a justifiable reason (or any reason—for denial of the IFP motion and the applications—for that matter), I must believe, and I do, that at least part of any reason is my being poor and Black.

There are no legal mechanisms of review (or appeal) for the Supreme Court’s violation of its own rules or its disregard of a federal statute erected to provide access to its court for the poor. The Supreme Court is the highest court in the land and the court of last resort. Thus, if I am to obtain a remedy for the Supreme Court’s conduct, it must come from Congress. So, Senator Boxer, I am turning to you , as my ally in Congress, to try and address the violations which I have identified. I think the Supreme Court’s denial of my basic right to access to the Court is similar to the denial of the right to vote, and “The 15th Amendment, added in 1870, says the right to vote ‘shall not be abridged or denied. . . on account of race’ and ‘Congress shall have the power to enforce this article by appropriate legislation.’ ” L.A. Times, “Voting act faces test in high court”, February 19, 2013 (emphasis added). More specifically, Section 1 of the Fifteenth Amendment states “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude”. (Emphasis added) And Section 2 states “The Congress shall have power to enforce this article by appropriate legislation”. (Emphasis added). Congress has the same power with respect to the judiciary. If Congress has the power to prevent the United States from denying or abridging a citizen’s right to vote, then, it must have the power to prevent the United States (as in Supreme Court) from denying or abridging a citizen’s right of and to access to the Court.

To that end, as identified earlier, I am seeking two specific actions from you towards an ultimate remedy for violation of my rights to access to the Court and to be free from economic and racial discrimination : (1) to have the Supreme Court answer certain questions from you, as a member of Congress, that I, as a prospective litigant ( I never became a litigant because the Court refused to docket my case), could not ask and require an answer to; and (2) to entertain the feasibility of certain civil rights legislation to convert certain Supreme Court Rules into civil rights legislation.

First, the questions. I would like you to pose the following questions to the Supreme Court regarding my denied access to the Court:

1. With no facial indication that Applicant Bray’s IFP documentation was not in proper order according to Supreme Court Rules:
(a) What justifiable reason, based on Supreme Court Rules, do you offer for not docketing Applicant’s IFP motion and the applications, on three separate occasions ?
(b) After Applicant Bray made a request to Justice Kennedy for an extension of time to file a petition for a writ of certiorari, why wasn’t his application or request submitted to Justice Kennedy 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”) ?

2. Why was the Court Clerk, rather than recuse himself from the matter:

(a) Allowed to respond to the application for a mandatory injunction (against the Clerk) instead of Justice Kennedy or the Chief justice ?

(b) Allowed or permitted to return documents that were personally addressed to Supreme Court Justices, which addressed misconduct of the Clerk himself ? Was this proper under the circumstances?

3. If Applicant Bray’s IFP motion and attached documents contained deficiencies that prevented them from being docketed of filed, why weren’t those deficiencies identified and pointed out to the Applicant so that they could be corrected?

4. When was the last time the Supreme Court agreed to hear a case brought by a poor, Black, pro se litigant? Or a black, pro se litigant ?


Second, the feasibility of proposed civil rights legislation. I believe Supreme Court clerks have too much unintended power, and because that power is susceptible to abuse, I believe that Congress should erect legislation to curb the power, and hopefully the abuse, of clerks. Thus, I propose the following :

(1). To begin with, I think Supreme Court Rule 39.4 should be converted to federal civil rights legislation with criminal ramifications, similar to 18 U.S.C. sections 241 and 242. Apparently, because this is a Court Rule rather than a congressional statute, the clerks feel that they are at liberty to disregard its mandate. Further, even though Rule 39.4 , even in its present state, provides very little discretion for the clerks, e.g., likely checking for signatures on IFP documents or the attached documents, a congressional civil rights statute would make it clear that they have no discretion not to docket IFP motions and applications once an IFP applicant has met the requirements of Rule 39.4; and it would especially be the case when the applicants are people of color. For instance, with respect to the similarity of sec. 242, an appropriate statute would begin with “Whenever a clerk of the United States Supreme Court, under color of any law. . . subjects any movant, applicant, or petitioner for in forma pauperis status to the deprivation of any rights, privileges, . . . secured or protected by the Constitution or laws of the United States (e.g., 28 U.S.C. sec. 1915)… on account of such movant, applicant, or petitioner being an alien, or by reason of his being poor, or by reason of his color or race , shall be fined $1,000 or imprisoned not more than one year or both.”

(2). With respect to Supreme Court Rule 22.1(“An application addressed to an individual Justice shall be filed with the Clerk, who will transmit it promptly to the justice concerned if an individual Justice has authority to grant the sought relief”), I believe this Rule is clearly susceptible to abuse by clerks. Even though I understand the Court’s and Justice’s desire for an intermediary to screen potential applications, the Rule provides clerks with what I believe is unintended power, susceptible to abuse by allowing the clerks to decide, on their own whim, whether a person’s application for relief is decided or not. For example, the clerks can decide “if an individual Justice has authority to grant the sought relief” , rather than a Justice deciding this—but ,the clerk is not a Justice, and he ought not have that kind of power ( and I do not believe that it was intended for him or her to have that type of power). Therefore, the clerk can decide if a Justice rules on an applicant’s application and can decide, by whim, that they do not want the Justice to rule on the applicant’s application.

I believe the minimum legislation needed to cut down on abuse by the clerks is to convert the Rule to legislation and identify certain specific types of matters that are clearly within the single justice’s authority, such as applications for stays, injunctions, bail, and for extensions of time to file a certiorari petition (although this provision is contained in a statute, as is a stay, most lay people, i.e., IFP, pro se litigants, are probably not aware of the statutes). I also believe declaratory relief is clearly within the single Justice’s authority, but there is a valid question there. This would cut down on the clerk’s discretion as to whether the Justice “has authority to grant the sought relief” for the identified matters, i.e., stay, injunction, etc. Presently, the Rule does not identify any specific types of matters that are within the Justice’s authority, so that places the decision of whether the Justice hears and decides an application entirely within the hands of the Clerk. And, as alluded to above, the Clerk can decide if this is the type of matter, depending on who files the application, that the Justice can and will decide. And, if the clerk decides against an applicant, the applicant generally has no recourse, since he or she cannot make the request directly to the Justice.

And Senator, if the applicant attempts to have the full Court review the Clerk’s decision, you need only review what happened to my application when I sought review of the clerk’s conduct. The Court refused to review the conduct (and returned the application to me, un-docketed). And, keep in mind Senator, the remedy I sought (asking the full court to review the clerk’s conduct) had been suggested by a district court and court of appeals as an “adequate remedy” for getting a clerk’s conduct corrected. See Borutrager v. Stevas, 772 F.2d 419 (8th Cir. 1985) where, “The plaintiff has a fully adequate alternative remedy, a motion directed to the Supreme Court seeking review of the defendant’s (clerk’s) conduct. Although the Court recognized that no statute or rule expressly authorizes the Justices to conduct such a review, it reasoned that the Supreme Court’s power over its clerks is inherent in the nature of the relationship between the two, pointing out that ‘it is the right and duty of the court. . . to correct the irregularities of its officer and compel him to perform his duty’ ” (citing Griffin v. Thompson, 2 How. 244, 257, 43 U.S. 244, 11 L.Ed. 253 (1844). Therefore, it seems clear that congressional intervention is needed. And, if Congress would require the identification of specific types of matters within the single Justice’s authority, it would at least lessen the complete discretion that the clerk presently has. And, there should be criminal civil rights ramifications for when the clerk’s misconduct is directed to people of color, similar to 18 U.S.C. sec. 242. If nothing else, it will cause clerks to reflect on their decision when dealing with people of color.

Finally, while the Eight Circuit suggested that resort to a district court for mandamus relief might be a possible remedy for Supreme Court clerk misconduct if the Supreme Court denies review, my search reveals that most lower courts (district courts and court of appeals) will refuse to grant such relief.



OVERALL RELIEF SOUGHT


The specific relief that I’m seeking of course is the restoration of my rights to file my applications to Justice Kennedy, and to file a petition for a writ of certiorari, if I choose to file one.

Beyond that, I also have a right to file a petition for a writ of mandamus against the Ninth Circuit, but because the IFP motion was not docketed and granted, that right has been denied as well. The compelling question is: What body is or should be charged with review of actions by the Supreme Court of the United States when it is alleged that the Supreme Court itself has violated statutory rights and U.S. Constitutional rights of United States citizens ? I believe Congress should establish a “special” court to review actions by the Supreme Court, especially actions involving violations of the law, and most especially actions regarding violations of provisions of the U.S. Constitution .

Finally, the ultimate relief I am seeking is the return of my home- law office in Ventura, California (and damages for its unlawful and invidious shutdown and the years of non-use following the shutdown; and damages and injunctive relief for my district court claims in Bray v. Department of Justice), that was taken pursuant to racial discrimination . As I have attempted to obtain relief through the courts, rather than pursue the course that Christopher Dorner did, all I have received is further racial discrimination in the California courts (state and federal). Like Christopher Dorner, when I was wrongfully and racially evicted from my home-law office, I had to move in with my mother and sister; and like Christopher Dorner, because of the loss of my law office (and I was unable to secure another law office since—having to improvise with the use of other office facilities to maintain my limited practice), I’ve been unable to start a family as well. So, while I never met him, I know Christopher Dorner , and I know racial discrimination (and the affect and effect of racial discrimination) in America.

I would appreciate a prompt reply Senator.

Sincerely yours,


Laurack D. Bray, Esq.

P.S. This will be an open and public letter.
Enclosures

cc : Dianne Feinstein, Senator for California
John Conyers, Congressman, and the Congressional Black Caucus


I will await a response.

UPDATE--March 26, 2013

I contacted Senator Boxer's offfice last week and the Senator's assistant informed me that the Senator had not received the letter (notwithstanding postal confirmation that the letter had been received during the first week of March. But, the assistant stated that security checks sometimes delay the delivery of the mail to the Senators. So I accepted that and I will try again, with more than reasonable time for the letter to have been delivered, even with security checks.

**UPDATE--April 18, 2013

I have now received a response from Senator Boxer's office. It's useless rubbish. It was completely non-responsive to my letter and totally disregarded the issues that I raised in the letter. For a more fully explained response to her letter, see my UPDATE to my original letter to Boxer.