Petition for Writ of Certiorari — David Netzer Consulting Engineer, LLC, Petitioner v. Shell Oil Company, et al.

No. _____

___________________________________________

In The

Supreme Court of United States

______________________

DAVID NETZER CONSULTING ENGINEER LLC,

Petitioner,

v.

SHELL OIL COMPANY, SHELL CHEMICAL LP,

AND SHELL OIL PRODUCTS COMPANY LLC,

Respondents.

_________________________

On Petition for a Writ of Certiorari from the

The United States Court of Appeals

For the Fifth Circuit

___________________________________________

PETITION FOR WRIT OF CERTIORARI

________________________________________

DELPHINE JAMES

Law Office of Delphine James PLLC

2616 South Loop West Suite 415

Houston, Texas 77054

Tel: (713) 661-4144

Fax: (713)661-4145

dmjamesjd@aol.com

COUNSEL OF RECORD

ii

QUESTIONS PRESENTED

State action that is wholly arbitrary or irrational is a

violation of the due process clause of the Fourteenth

Amendment. Statute 28 U.S.C. § 1631 provides that

it is mandatory and in the interest of justice that the

Fifth Circuit must transfer a case once it determines

that it does not have jurisdiction. Since the congress

conferred the mandatory right of transfer, the Fifth

Circuit cannot arbitrarily and capriciously decide not

to transfer an appeal without providing reasoned

analysis. In the present case, the Fifth Circuit failed

to automatically transfer the appeal to the proper

jurisdiction or provide a reasoned analysis. The lack

of a reasoned analysis severely undermines

petitioners procedural and substantive due process

rights under the constitution.

The petition for a writ of certiorari presents the

following issues:

QUESTION 1

Whether the application of the statute by the Fifth

Circuit amount to a deprivation of property interest

without due process of law?

QUESTION 2

Whether there is a Conflict of Law between the

mandatory provision and the interest of justice

provision of statute?

iii

PARTIES TO THE PROCEEDINGS

Petitioner,

DAVID

NETZER

CONSULTING

ENGINEER LLC- Plaintiff-Petitioners

Attorneys For Plaintiff-Petitioners,

Delphine James,

Law office of Delphine James PLLC

2616 South Loop West Suite 415,

Houston, TX 77054

Respondents, SHELL OIL COMPANY, SHELL

CHEMICAL LP, AND SHELL OIL PRODUCTS

COMPANY LLC Defendants-Respondents,

Attorneys For Defendants-Respondents

KATHLEEN M. SULLIVAN, Quinn Emanuel

Urquhart & Sullivan, LLP, New York, NY,

Also represented by KEVIN ALEXANDER SMITH,

San Francisco, CA; JOSHUA L. SOHN, Washington,

DC; CHARLES BRUCE WALKER, JR., Norton Rose

Fulbright US LLP, Houston, TX;

JAYME PARTRIDGE, Patterson & Sheridan LLP,

Houston, TX.

RULE 29.6 STATEMENT

All parties are identified in the caption of this petition.

No publicly held corporation owns 10% or more of

DAVID NETZER CONSULTING ENGINEER LLC.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED………………………...…ii

PARTIES TO THE PROCEEDING……………………ii

RULE 29.6 STATEMENT……………………….…...…ii

TABLE OF AUTHORITIES…………………………....ix

OPINIONS BELOW………………………………….….1

JURISDICTION……………………………………….....1

RELEVANT STATUTORY

PROVISIONS …………………………………………….2

INTRODUCTION…………………………………..........4

STATEMENT OF CASE….………………………........ 4

A. Proceedings Below After Entry of Judgment

……………………………………………......….…5

B. Underlying proceedings before final Judgment

.……………………………….……………..…..… 5

C. Petitioner Timely Filed the Notice of

Appeal……….………..……………..………........6

D. Statute provides for automatic transfer to

proper jurisdiction ...........................................6

E. Petitioner 60(b) Motion for Reconsideration

………………..…………………………...……….7

F. Petitioner’s Due Process Rights were violated

………………………………………………….….11

REASONS FOR GRANTING THE

PETITION…………………………………….…………13

CO N CL U SIO N .. . .. . . . . . .. . . .. . . . . . . . . .. . . .. .. . . . . . .. 1 4

AP P EN D I X A

v

F i fth Ci rcui t O rder G ra nti ng

D i smi ssa l. . . ……………………. ……… …… . . . 1 a

AP P EN D I X B

F i fth Ci rcui t O rder D eny i ng

T ra nsfer . . . ………………. …… ………. ……. …2 a

AP P EN D I X C

D i stri ct Court O rder D eny i ng Motion …. 3 a

AP P EN D I X D

D i stri ct Court F i na l

J udg ment………………… ………………. . . …. 5a

AP P EN D I X E

F i fth Ci rcui t O rder D eny i ng

Rehea ri ng ………………………. . … ….…. …. 6 a

vi

TABLE OF AUTHORITIES

FEDERAL CASES

Alan W. Perry & Martin H. Redish, 12-63 Moore's

Federal Practice - Civil §§ 63.20 and 63.21 (2012) .. 10

Amity Rubberized Pen Co. v. Mkt. Quest Group, Inc.,

793 F.3d 991, 996 (9th Cir. Cal. July 13, 2015) …....7

Cashner v. Freedom Stores, Inc., 98 F.3d 572, 579

(10th Cir. 1996) ……………………………………..…..7

Gen. Aviation, Inc. v. Cessna Aircraft Co., 915 F.2d

1038, 1043 (6th Cir. 1990) ……………………….…..10

Gleason v. Jandrucko, 860 F.2d 556, 559 (2d Cir. 1988)

………………………………………………..……… ….9

Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467, 82 S.Ct.

913, 8 L.Ed.2d 39 (1962)……………………………..10

Hill v. City of Seven Points, 230 F.3d 167, 169 (5th Cir.

2000)………………….………………………………….12

Hook v. McDade, 89 F.3d 350, 354 (7th Cir. 1996) …10

In re Exclusive Indus. Corp., 751 F.2d 806, 808– 09

(5th Cir. 1985)……………….………………………….. 12

vii

In re Nicole Energy Servs., 423 B.R. 840, 844-45

(Bankr. S.D. Ohio 2010) ……………………….……..10

Kennecott Corp. v. U.S. Dist. Ct. for S. Dist. of Cal.,

873 F.2d 1292, 1293 (9th Cir. 1989 ……. 12

Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir.

1990)………………………………………..……………11

MGA, Inc. v. GMC, 827 F.2d 729, 733 (Fed. Cir.

1987)……………………………………………………..13

McGuire v. United States, 550 F.3d 903, 914 (9th Cir.

2008)………………………………………………….… 12

Munns v. Kerry, 782 F.3d 402, 415 (9th Cir. 2015).12

Liteky v. United States, 510 U.S. 540, 550-51

(1994)……………………………………………………10

Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 729

(10th Cir. 1993) …………………………………..…….8

Puri v. Gonzales, 464 F.3d 1038, 1043 (9th Cir. 2006)

…………………………………………………….………12

United States v. Beggerly, 524 U.S. 38, 47 (1998) ...9

United States v. McBride, 149 F.3d 1175 (5th Cir.

1998) …………………………………….………………..12

viii

United States v. Michael Charles Vankirk, No. 1511085, (5th Cir. March 17, 2016)……………………..13

United States v. Sammons, 918 F.2d 592, 599 (6th Cir.

1990) …………………………………………………….. 10

Victorinox AG v. B&F Sys., 2016 U.S. Dist. LEXIS

105054 (S.D.N.Y. Aug. 4, 2016) ………………………7

STATUTES

Fed. Rule Appellate Procedure 4(a)……………6

Fed. Rule Civ. Procedure 60(b) …………1,2,3,6,7,8,11

28 U.S.C. § 1631 ………………………..…2,4,5,6,7,12

1

PETITION FOR WRIT OF CERTIORARI

DAVID NETZER CONSULTING ENGINEER

LLC (“Netzer LLC”), respectfully petitions for a writ

of certiorari to review the judgment below.

OPINIONS BELOW

Netzer received new evidence after the district

court entered amended final judgment on March 31,

2016. The district court’s final judgment is reported

as David Netzer Consulting Eng’r LLC v. Shell Oil Co., No.

4:14-cv-00166, ECF No. 56 (S.D. Tex. Mar. 31, 2016). See

Appendix D.

Netzer filed a motion for reconsideration

based upon FRCP 60(b) and the district court denied

the motion. The district court’s order is reported as

David Netzer Consulting Eng’r LLC v. Shell Oil Co., No.

4:14-cv-00166, ECF No. 66 (S.D. Tex. May 16, 2017). See

Appendix C.

The Court of Appeal of the Fifth Circuit

dismissed the case for lack of jurisdiction on July 18,

2017. See Appendix A. Netzer filed a motion for

rehearing which was denied on August 31, 2017.

See Appendix C. Petitioner filed a motion to transfer

which was denied as moot on 9/27/2017. See

Appendix B. Netzer file a motion for an extension of

time to file with US Supreme Court and the

extension was granted to 12/29/2017.

JURISDICTION

2

The district court denied Netzer’s Motion for

Reconsideration on May 16, 2017. Netzer timely filed

a notice of appeal with the Fifth Circuit, the appeal

was accepted by the Fifth Circuit, and a briefing

schedule was docketed on June 23, 2017. Shell filed

a motion to dismiss for want of jurisdiction which

was granted on July 18, 2017. Without a reasoned

opinion in violation of Netzer’s Due Process rights,

the Fifth Circuit granted Shell’s motion to dismiss for

want of jurisdiction, but refused the transferal of the

case to the appellate court with proper jurisdiction.

Netzer filed a motion for rehearing which was denied

on August 31, 2017. Netzer filed a motion with this

court to extend time to file to December 29, 2017.

Thus, this Court has jurisdiction under 28 U.S.C

1254(1).

RELEVANT STATUTORY PROVISIONS

28 USC § 1631

Whenever a civil action is filed in a court as defined

in section 610 of this title or an appeal, including a

petition for review of administrative action, is noticed

for or filed with such a court and that court finds that

there is a want of jurisdiction, the court shall, if it is

in the interest of justice, transfer such action or

appeal to any other such court in which the action or

appeal could have been brought at the time it was

filed or noticed, and the action or appeal shall

proceed as if it had been filed in or noticed for the

court to which it is transferred on the date upon

which it was actually filed in or noticed for the court

from which it is transferred.

3

Fed. Rule. Civ. Procedure 60(b)

(b) GROUNDS FOR RELIEF FROM A FINAL JUDGMENT,

ORDER, OR PROCEEDING. On motion and just terms,

the court may relieve a party or its legal

representative from a final judgment, order, or

proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable

neglect;

(2) newly discovered evidence that, with

reasonable diligence, could not have been

discovered in time to move for a new trial under

Rule 59(b);

(3) fraud (whether previously called intrinsic or

extrinsic), misrepresentation, or misconduct by an

opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or

discharged; it is based on an earlier judgment that

has been reversed or vacated; or applying it

prospectively is no longer equitable; or

(6) any other reason that justifies relief.

(c) TIMING AND EFFECT OF THE MOTION.

(1) Timing. A motion under Rule 60(b) must be

made within a reasonable time—and for reasons

(1), (2), and (3) no more than a year after the entry

of the judgment or order or the date of the

proceeding.

INTRODUCTION

4

This case presents several issues wherein the

Fifth Circuit violated Netzer’s substantive due

process was violated. Petitioner right to fair trial

and arbitrary state action are interests that are

protected by the Due Process Clause of the

Fourteenth Amendment.

Pursuant to 28 USC 1631, the Fifth Circuit was

required to transfer the appeal to the proper

appellate court. Netzer’s motion for reconsideration

is a viable colorable claim based upon Shell’s

concealment of evidence from the court and

interference with Netzer’s trial on the merits.

The district court provided a bias reasoned

opinion in its denial of Netzer’s Motion for

Reconsideration. See Appendix D. The Fifth Circuit

provided no reasoned opinion for its dismissal and its

denial of transfer of the appeal. See Appendix A and

B.

The district court’s biased denial of Netzer’s

motion for reconsideration and the Fifth Circuit’s

void opinions are "a violation of substantive due

process because of its arbitrary and capricious

nature." MGA, Inc. v. GMC, 827 F.2d 729, 733 (Fed.

Cir. 1987).

STATEMENT OF THE CASE

A. Proceedings below after entry of final

judgment

On June 28, 2017 the Fifth Circuit granted

appellees’ motion to dismiss for lack of jurisdiction

and dismissed appellant’s appeal to the Fifth

5

Circuit. Appellant filed a motion for rehearing

pursuant to FRAP 40 that was denied by the court

on August 31, 2017. Appellant filed a motion to

transfer the case to the federal circuit on

September 18, 2017 and on September 28, 2017

the Fifth Circuit denied the motion as moot.

Since, the appellant filed a timely appeal within

30 days of the final judgment with the Fifth

Circuit, the appeal is timely, and the Fifth Circuit

was required to automatically transfer the case to

the Federal Circuit pursuant to 28 U.S.C. § 1631.

B. Underlying Proceeding before final judgment

On January 23, 2014, David Netzer, the sole inventor

of the ’496 patent, assigned the patent to Netzer

LLC.

Netzer sued Shell Oil Company, Shell

Chemical LP, and Shell Oil Products Company LLC

(collectively, “Shell”) in the United States District

Court for the Southern District of Texas, alleging

that Shell infringed the ’496 patent. Shell answered

and counterclaimed for a declaratory judgment of

noninfringement and invalidity in the district court.

The judgment of the district court was entered

on August 26, 2015. A notice of appeal was timely

filed with the United States Court of Appeal of the

Federal Circuit.

The federal circuit entered

Judgment on May 27, 2016 affirming the district

court judgment.

After entry of final judgment Netzer received

an affidavit from James Storm an ex-employee of

Shell stating that Shell obtained judgment in the

underlying proceeding through fraud on the court.

C. Petitioner timely filed the Notice of Appeal

6

Under Federal Rule of Appellate Procedure

4(a), a notice of appeal must be timely filed with the

district clerk within 30 days after the judgment or

order appealed from is entered. See Fed. R. App. P.

4(a). Because appellant timely filed the notice of

appeal within 30 days with the district clerk of the

Southern District of Texas, the appeal is timely filed

pursuant to FRAP 4(a). The district court denied

petitioner’s 60(b) motion for reconsideration on May

27, 2017 and petitioner notice of appeal was timely

filed with the Fifth Circuit and set for briefing

schedule on June 23, 2017.

D. Statute provides for automatic transfer to

proper jurisdiction

Pursuant to 28 U.S.C. § 1631, “ [w]henever a civil

action is filed in a court as defined in section 610 of

this title or an appeal, including a petition for review

of administrative action, is noticed for or filed with

such a court and that court finds that there is a want

of jurisdiction, the court shall, if it is in the interest

of justice, transfer such action or appeal to any other

such court in which the action or appeal could have

been brought at the time it was filed or noticed, and

the action or appeal shall proceed as if it had been

filed in or noticed for the court to which it is

transferred on the date upon which it was actually

filed in or noticed for the court from which it is

transferred. “

Because of the mandatory nature of the

language in 28 U.S.C. § 1631, a motion is

unnecessary and upon dismissal for want of

jurisdiction the Fifth Circuit must directly transfer

7

the case to the court of proper jurisdiction as part of

its mandate in the interest of justice. See Amity

Rubberized Pen Co. v. Mkt. Quest Group, Inc., 793

F.3d 991, 996 (9th Cir. Cal. July 13, 2015).

If the

appellant has made a colorable claim, even if its

support is "quite spare," it is must be transferred and

"leave such issues to the court with jurisdiction over

the claims." Id.

E. Petitioner 60(b) motion for reconsideration is

based upon extraordinary circumstances.

To prevail on a Rule 60(b) motion, [t]he

movant must demonstrate that (1) the newly

discovered evidence was of facts that existed at the

time of trial or other dispositive proceeding, (2) the

movant must have been justifiably ignorant of them

despite due diligence, (3) the evidence must be

admissible and of such importance that it probably

would have changed the outcome, and (4) the

evidence must not be merely cumulative or

impeaching. See Victorinox AG v. B&F Sys., 2016

U.S. Dist. LEXIS 105054 (S.D.N.Y. Aug. 4, 2016).

“[A] district court may grant a Rule 60(b)(6)

motion only in extraordinary circumstances and only

when necessary to accomplish justice.” Cashner v.

Freedom Stores, Inc., 98 F.3d 572, 579 (10th Cir.

1996)(citing Lyons v. Jefferson Bank & Trust, 994

F.2d 716, 729 (10th Cir. 1993)). “Relief under Rule

60(b)(6) is appropriate when circumstances are so

‘unusual or compelling’ that extraordinary relief is

warranted, or when it ‘offends justice’ to deny such

relief.” Id. at 580. An extraordinary circumstance

justifying Rule 60(b)(6) relief, for example, exists

8

“when, after entry of judgment, events not

contemplated by the moving party render

enforcement of the judgment inequitable.” Id. at 579.

James Storm testified that:

“I am a semi-retired chemical engineer, (MS in

Chemical Engineering and BS Chemistry) that

retired as Vice President from Saudi Refining, Inc

(SRI) in 2016. SRI is a joint venture partner with

Shell in Motiva Enterprises, LLC (a Gulf Coast

refining and marketing company). Shell and SRI

each own 50% of the joint venture. Prior to

employment with SRI, I was employed by Shell

Global Solution in Houston. I was considered a top

technical expert by both Shell and Motiva and

intimately familiar with US Gulf Coast operations of

both Shell and Motiva Refining operations. As a JV

partner with Shell and while employed by Shell, I

was under secrecy obligations.”

James Storm further testified that:

“The claims by Shell that Netzer

disclaimed extraction has no holding

anywhere in the claims, not in the

specifications or the patent prosecution

history. It is totally misleading and ignores

the other ethylene steam cracking process

benefits that his patent affords.”

The foregoing testimony of James Storm

formed the basis for extraordinary circumstances

because petitioner recently learned of the testimony

of James Storm and the misrepresentations of Shell

in the underlying proceeding.

9

Appellant filed the appeal in the Fifth

Circuit, because the reginal circuit law is relevant

on appeal of a FRCP 60(b) motion for new trial.

However, if Shell concealed pertinent evidence that

should have been considered by the Federal Circuit

in the appeal of the underlying proceeding, then a

new trial is proper and necessary. Mr. Storm was

unavailable for trial because of secrecy agreement.

In the interest of justice, Shell should not be

allowed to foreclose all opportunity of Netzer’s

appeal on the merits.

An independent action is available pursuant to

60(b)(6) to prevent a "grave miscarriage of justice."

United States v. Beggerly, 524 U.S. 38, 47 (1998).

'"Fraud upon the court,' as distinguished from fraud

on an adverse party, is limited to fraud which

seriously affects the integrity of the normal process of

adjudication." Gleason v. Jandrucko, 860 F.2d 556,

559 (2d Cir. 1988). Fraud upon the court is

something that "threatens the very integrity of the

judiciary and the proper administration of justice."

Id.

In the present case, James Storm was

prevented from testifying because he was an

employee under a non-disclosure agreement with

Shell. James Storm specifically testified that Shell

provided concealed testimony to the court and

interfered with Netzer’s trial on the merits. Shell’s

concealment of testimony to the court threatens the

very integrity of court and administration of justice.

The one-year time limit does not apply in the present

case.

Additionally, Judge Hughes recently made the

statement in the district’s order that James Storm

10

was a technician of Netzer. See Appendix D. The

petitioner submits that this is a bias statement that

is so extreme that it displays the judge clear inability

to render fair judgment See Liteky v. United States,

510 U.S. 540, 550-51 (1994); In re Nicole Energy

Servs., 423 B.R. 840, 844-45 (Bankr. S.D. Ohio 2010);

Alan W. Perry & Martin H. Redish, 12-63 Moore's

Federal Practice - Civil §§ 63.20 and 63.21 (2012).

The standard for determining judicial bias or

partiality is an objective one, namely whether a

reasonable person knowing all the relevant facts

would believe that a judge has a personal bias

against the litigant or would question the judge's

impartiality. See Gen. Aviation, Inc. v. Cessna

Aircraft Co., 915 F.2d 1038, 1043 (6th Cir. 1990);

Hughes v. United States, 899 F.2d 1495, 1501 (6th

Cir.), cert. denied, 498 U.S. 980 (1990). Accordingly,

the evaluation is made from the perspective of a

"well-informed, thoughtful observer, " Hook v.

McDade, 89 F.3d 350, 354 (7th Cir. 1996)(citations

omitted), and not from the "subjective view of a party

no matter how strongly that view is held." United

States v. Sammons, 918 F.2d 592, 599 (6th Cir.

1990).

Hughes ignoring of Shell’s concealment of

evidence and bias statement forms the basis of

extraordinary circumstances pursuant to FRCP

60(b)(6). Thus, Netzer presented a viable appeal with

a colorable claim that has been foreclosed on the

merits by Shell.

Appellant submits that James Storm

recently discovered affidavit and Judge Hughes

bias statement regarding Mr. Storm culminates

11

into extraordinary

irrelevant or moot.

circumstances

that

is

not

F. The Petitioner’s Due Process Rights Were

Violated

Petitioner right to fair trial and arbitrary state

action are interests that are protected by the Due

Process Clause of the Fourteenth Amendment.

The district court biased statements within the

final judgment is a colorable claim.

Shell’s

concealment of evidence amounts to fraud on the

court wherein motion for 60(b) pursuant to

extraordinary circumstances is a viable claim.

The Fifth Circuit initial reviewed the case and

accepted jurisdiction knowing that Federal Rules of

Civil Procedure 60(b) was the relevant case law.

Fifth Circuit did not review the case on the merits

and did not provide a reasoned opinion for denial of

transfer even after a formal request.

[T]transfer will be in the interest of justice

because normally dismissal of an action that could be

brought elsewhere is 'time-consuming and justicedefeating.'" Miller v. Hambrick, 905 F.2d 259, 262

(9th Cir. 1990) (quoting Goldlawr, Inc. v. Heiman,

369 U.S. 463, 467, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962)).

At the same time, transfer is appropriate to prevent

the injustice of penalizing a party for an honest

procedural mistake. Thus, an appeal will be

transferred “in the interest of justice where . . . the

plaintiffs appear to have been 'unaware of or

confused about the proper forum in which to file

[their] action.'" Munns v. Kerry, 782 F.3d 402, 415

12

(9th Cir. 2015) (quoting Puri v. Gonzales, 464 F.3d

1038, 1043 (9th Cir. 2006)) Similarly, it is in the

interest of justice to transfer a case when the time

period has elapsed to file in the appropriate court.

See Kennecott Corp. v. U.S. Dist. Ct. for S. Dist. of

Cal., 873 F.2d 1292, 1293 (9th Cir. 1989). Generally,

another court's exclusive jurisdiction makes transfer

appropriate. See McGuire v. United States, 550 F.3d

903, 914 (9th Cir. 2008). Rarely, has a court found

that transfer does not server the interest of justice.

Id.

This court must examine the basis of its

jurisdiction, on its own motion if necessary. Hill v.

City of Seven Points, 230 F.3d 167, 169 (5th Cir.

2000).

Pursuant to 28 U.S.C. § 1631, the Fifth

Circuit had the power to transfer the appeal to that

court which, on the day that the appeal was filed,

had jurisdiction over the matter. See United States v.

McBride, 149 F.3d 1175 (5th Cir. 1998) (per curiam)

(citing In re Exclusive Indus. Corp., 751 F.2d 806,

808– 09 (5th Cir. 1985)). It is in the interest of justice

to transfer an appeal when if it were dismissed, the

petitioner would be denied the opportunity to appeal.

United States Of America v. Michael Charles

Vankirk, No. 15-11085, (5th Cir. March 17, 2016).

Netzer submits that Fifth Circuit void opinion

is "a violation of substantive due process because of

its arbitrary and capricious nature."

MGA, Inc. v.

GMC, 827 F.2d 729, 733 (Fed. Cir. 1987). The fifth

Circuit has the jurisdiction to determine jurisdiction

and transfer in the interest of justice. Without a

developed record the truth cannot be determined and

13

the denial of the appeal at the Fifth Circuit has

barred the mandatory interest of justice clause

provided by Congress.

REASONS FOR GRANTING PETITION

Congress implemented 28 USC 1631 to ensure

that appeals on the merits were provided to litigants.

The underlying public policy of 28 USC 1631 is to

prevent the miscarriage of justice based upon a

technical error by a petitioner. Thus, the statute

makes it mandatory to transfer an appeal when an

appellate court does not have jurisdiction. The

appellate court is the last step in the due process

rights provided under fourteenth amendment of the

constitution.

Arbitrary and capricious denial of transfer of

an appeal pursuant to 28 USC 1631 by the Fifth

Circuit is ripe for review because this case effects all

litigants. Although the mandatory provision of the

statute provides the Fifth Circuit the right to

transfer in interest of justice, there is no discretion to

arbitrarily deny an appeal. An arbitrary denial of an

appeal by an appellate court can only be reviewed by

the Supreme Court. Additionally, the petitioner has

contacted the congressional judiciary committee as

well.

CONCLUSION

If the Court finds that the Fifth Circuit violated

petitioner’s due process rights, petitioner request

that the case proceed in the fifth circuit or be

transferred to the federal circuit. Alternatively, that

14

the case be transferred back to a different district

court with a mandate of an evidentiary hearing on

petitioner’s motion to dismiss.

Respectfully submitted.

DELPHINE JAMES

Law Office of Delphine James PLLC

2616 South Loop West Suite 415

Houston, Texas 77054

Tel: (713) 661-4144

Fax: (713)661-4145

dmjamesjd@aol.com

COUNSEL OF RECORD