Petition for Writ of Certiorari — Robert Joseph Sarhan, Petitioner v. Federal Bureau of Prisons

Supreme Court briefJun 15, 2018

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No.

IN THE

SUPREME COURT OF THE UNITED STATES

ROBERT JOSEPH SARHAN, MD

PETITIONER,

DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITITION FOR WRIT OF CERTIORARI

ROBERT JOSEPH SARHAN, MD

Pro-Se Petitioner

22795 S.W. 212 AVENUE

MIAMI, FLORIDA 33170

TEL.NO.305-338-6160

drrob2007@yahoo.com

QUESTIONS PRESENTED

This Writ of Certiorari is of Great National

Importance. After 11 years of fighting for Justice,

numerous Judges continue to deprive the Petitioner

of his Liberty and Property in violation of the

Fourteenth Amendment Rights of Due Process and

turn a blind eye to Fraud on the Court. Under Rule

10, this Petitioner Prays for an Exercise of this

Supreme Courts Supervisory Power and seeks

review of a Manifest Injustice that is fundamental to

the integrity of Administrative and Civil proceedings

in the United States, where we Respectfully Request

and Pray for "JUSTICE."

Whether the Eleventh Circuit Court of Appeals,

and other Courts involved acted in a manner

inconsistent with due process and violated the U.S.

Supreme Court Law and precedent governing review

of fraud on the court actions by summarily

affirming the Petitioner's Federal District Court

actions for relief from judgment procured by fraud on

the court

all without ever reviewing

Petitioner's fraud on the court allegations, the

very subject matter of his action, and the very

allegations, proven with prima facie evidence,

that entitle him to relief?

Whether the Eleventh Circuit Court of Appeals

decision is contrary to their own opinion and the

United States Supreme Court Precedents and states:

a judgment is a "void judgment" if the court that

rendered judgment... acted in a manner inconsistent

with due process?"

Whether the Court of Appeals erred in there ruling

of res judicata, differs from the Six Circuit, where

collateral estoppel nor res judicata is not rigidly

applied in administrative actions; both rules are

qualified or rejected when their application would

contravene overriding public policy or result in

Manifest Injustice.. Whether res judicata is

blocking the truth" and is shielding the fraud and the

cheat as well as the honest person?

TABLE OF CONTENTS

QUESTIONS PRESENTED .................................. i

TABLE OF AUTHORITIES................................iii

OPINIONS BELOW............................................x

JURISDICTION................................................xi

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED...........................xi

INTRODUCTION...............................................1

STATEMENT OF THE CASE AND THE FACTS.....5

REASON FOR GRANTING THE WRIT................13

THE DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT IS CONTRARY TO THEIR OWN

OPINION, OTHER CIRCUITS AND CONTRARY

TO THE UNITED STATES SUPREME COURT

PRECEDENT IN:

The Petitioner has been denied his 14th

Amendment Rights by an ALJ and all

Judges that followed including the

Eleventh Circuit Court of Appeals where

the Petitioner has been denied his liberty

and property without due process of law

and was denied equal protection of the

laws, therefore the Administrative

Judgment is Void.

II. Vivian Bonet, Health Service

Administrator testified She Knew

Nothing About This Case but Signed the

Termination Letter Because the Warden

Ordered Her to Sign, which is a

Prohibited Personnel Practice (5 U.S.C. §

2302(B), MSPB 1225, C.F.R. § 1201.56

The Administrative Judge denied the

Petitioners Fundamental Rights to Cross

Examine the Only Witness in the Case, the

Inmate, which according to the Eleventh

Circuit, was a clear abuse of discretion

and denied the Petitioner due process.

Res judicata is inapplicable and cannot be

enforced due to the A-LJ lack of

jurisdiction, due process violations,

concealment, fraud on the court and

misrepresentation by the Warden

Fraud on the Court and Fraudulent

Concealment by the Warden and Staff of

the BOP which Voids the Administrative

Judgment

SUMMARY..........................................................34

CONCLUSION....................................................35

APPENDIX CONTENTS

APPENDIX A: U.S. Court of Appeals

for the Eleventh Circuit Opinion......................A

APPENDIX B: U.S. District Court

For Southern District of Florida......................B

APPENDIX C: MSPB.............................................0

APPENDIX D: U.S. Court of Appeals

For the Federal Circuit..................................D

APPENDIX E: MSPB

APPENDIX F: Affidavit of Lionel Phillips..................F

APPENDIX G: Affidavit of Daniel Ludwig.................G

APPENDIX H: AFGE v. US Dept. of Justice..............H

(Warden Pastrana Found Not credit worthy)

American Federation of Government

Employees, Council of Prison Locals,

Local 4052 and U.S Department of Justice,

Federal Bureau of Prisons MDC, Guaynabo,

P.R., Federal Arbitration, 0-AR-4228,

FMCS: 02-12276 (November 27, 2006).

TABLE OF AUTHORITIES

CASES

Hazel-Atlas, 322 U.S. at 250-51................1,19,24,27

U.S. v. Throckmorton, 98 U.S. 61..................1,19,24

Kiugh v. U.S. D.C.S.C,

610 F. Supp. 892, 901..........................................5

Burke v. Smith, 252 F.3d 1260, 1263......................5

(11th Cir. 2001)

Tipler v. E. I. duPont de Nemours and Co ....... ....... 22

F.2d(6thl Cir. 1971). 125,128 443

111

Cleveland Board of Education v.

Loudermill, 470 U.S. 532 (1985).................1,4,14,21

Board of Regents of State Colleges v. Roth,

408 U.S. 564 (1972).......................................1,4,14

Perry v. Sindermann,

408 U.S. 593 (1972).......................................1,4,14

Svejda v. Department of the Interior........................4

7 M.S.P.R. 108 (1981),

Facciponti v. U.S. Postal Service............................4

15 M.S.P.R. 183 (1983)

Norman v. Arkansas, 79 f.3d 748, 750.................4,13

United States v. Olano, 507 U.S., at 732,

725, 736, 113 s. Ct 1770, 1779(1993).......................4

United States v. Atkinson, 297 U. S. 157,

160(1936)) .................................................... 4,13

Douglas v. Veterans Administration,

5 MSPR 280 (1981)..............................14,15

Douglas V. VA, 5 MSPB 313 (1981)).....................15

Stone, 179 f.3d at 1377...................................15,16

Ward v. USPS, 634 f.3d 1274 ...................... 11,12, 16

(Fed. Cir. 2011)

Brewer v. United States Postal Service................15

227 Ct.C1., 647 F.2d.1093, 1097 (1981),

quoting S. Rep. No. 969, 95th Congress,

2d Session 64, reprinted in U.S. Code Ad.

News 2723, 2786 (emphasis added).

In re Edwards, 962 F. 2d 641, 644 (7th Cir. 1992).....16

Rice v. Ford Motor Co., 88 F.3d 914, 918................16

11.7 (11th Cir. 1996)

Gschwind v. Cessna Aircraft Co .......................... 17

232 F.3d 1342, 1346 (10th Cir.2000).

Demenech v. Secretary of DHHS, 913 F.2d 882......19

885 (11th Cir. 1990)

United States v. Maxwell, 579 F.3d 1282..............19

1295 (11th Cir. 2009).

United States v. Ignasiak, 667 F.3d 1217..............19

1227 (11th Cir. 2012).

Perales, 402 U.S. at 401-02 (citing Goldberg...........19

v. Kelly, 397 U.S. 254, 262-63 (1970)

402 U.S. at 409

Richardson v. Perales, 402 U.S. 389, 408 (1971)......19

Altholtz v. Conn. Dental Com,n'n, 4 Conn.............19

App. 307, 311-14, 493 A.2d 917, 921-22 (1985)

Carlson v. Kozlowski, 172 Conn. 263.....................19

268, 374 A.2d 207, 209 (1977).

Padilla v. Minn. Bd. of Med. Exam's

876, 883 382 N.W.2d (Minn. Ct. App. 1986)

.20

Kenneth Gulp Davis & Richard J.........................20

Pierce, Jr., Administrative Law Treatise

§ 16.8. (3rd ed. 1994)

Felsen 442 U.S. at 132, 99 S. Ct. at 2210................21

In Kissel v. U.S. Postal Service............................21

Docket No. SF03538810179, 42 MSPB 154

(October 17, 1989)

Grose v. Cohen, 406 F.2d 823, 825 (4th Cir. 1969)... .22

Gourli v. Weinberger, 393 F.Supp. (E.D.Ca1.1975) .... 22

Thompson v Schweiker (1982, CA9 Cal) ................22

665 F2d 936

Am. Heritage Life *1378 Ins. Co. v. Heritage..........22

Life Ins. Co., 494 F.2d 3, 10 (5th Cir. 1974)

Alvear—Velez v. Mukasey, 540 F.3d 672, 677..........23

(7th Cir.2008)

Collins v. Pond Creek Mining Co., 468 .................23

F3d 213, 229 n. 3 (4th Cir.2006)

Quiñones Candelario v. Postmaster Gen.,906.........23

906 F.2d 798, 801 (1st Cir. 1990)

Facchiano v. U.S. Dept of Labor, 859 F.2d 1163... .23

1167 (3d Cir.1988)

Artukovic v. INS, 693 F.2d 894, 898

(9th Cir. 1982)

. 23

Parker v. Califano, 644 F.2d 1199, 1202 ...............23

(6th Cir. 198 1)

United States v. Smith, 482 F.2d 1120, 1123 ..........23

(81h Cir.1973)

Cartier v. Sec'y of State, 506 F.2d.........................23

191, 196(D.C.Cir. 1974)

Remus Joint Venture v. McAnally, 116 F.3d 180.....23

184 n.5 (6th Cir. 1997).

U.S. Supreme Court in Scheuer v. Rhodes, supra... .24

416 U.S. 232, 94 S. Ct. 1683, 1687 (1974).

Lubben v. Selective Service System Local Bd.........24

No. 27, supra, 453 F.2d 645 (1st Cir. 1972).

Graciette v. Star Guidance, Inc., 66......................24

F.R.D. 424 (D.N.Y.1975).

Aoude v. Mobil Oil Corp., 892 F.2d 1115...............25

1118-1119 (1st Cir. 1989).

John Martin v. Automobili Lam borghini..............25

Exclusive Case No: 00-12489,

Chemtall Inc. v. Citi-Chem. Inc., 992....................25

Nichols v. Klein Tools, Inc., 949 F.2d 1047, 1048

(8th Cir.1991).

Vii

Vargas v. Peltz, 901 F. Supp. 1572

(S.D.F1a. 1995)

.26

Harbold, 51 F.3d at 622." Davenport Recycling......26

Associates v. C.I.R., 220 F.3d 1255, 1262

(110 Circuit 2000).

E. G. Stanley Shenker & Assocs. v. World..............27

Wresting Fed 'n Entm 't, 48 Conn.Supp .357

(Conn.Ct.2003)."

Travelers Indem. Co., 761 F.2d at 1551................27

Aldana v. Del Monte Fresh Produce N.A., Inc ........ 27

741 F.3d 1349, 1359 (11th Cir. 2014)

United States v. Beggerly, 524 U.S. 38, 46 ...........27

118 S.Ct. 1862, 1867, 141 L.Ed.2d 32 (1998))

Bankers Mortg. Co. v. United States....................27

423 F.2d 73, 79 (5th Cir. 1970)

Day v. Benton, 346 F. 3 App'x at 478....................27

Dow Chemical Co. v. Mahium, 114 Nev. 1468........30

1483-84, 970 P.2d 98, 110 (1998)

Nevada Power Co. v. Monsanto Co., 891 F.Supp.....30

1406, 1415 (D.Nev.1995)).

Bankers Mortg. Co. v. United States, 423 F.2d.......22

73, 79 (5th Cir. 1970);

viii

United States v. Bean, 537 U.S. 71, 77 (2002)........33

Gardner v. U.S. Bureau of Land Mgmt .................. 33

638 F.3d 1217, 1224 (9th Cir. 2011).

Latino Issues Forum v. EPA, 558 F.3d 936..............33

941(9th Cir. 2009)

High Sierra, Hikers Assn, 390 F.3d at 638.............33

Public Util. Dist. No. 1, 371 F.3d at 706.................33

STATUTES & REGULATIONS

42 U.S.C. § 1985.................................................1

5 U.S.0 § 2302(B)(2)...........................5, 10, 13, 17,26

5 U.S.C. 7703 (b)(2).............................................7

5 CFR 1201.73................................................9,28

5 C.F.R. § 1201.56..........................................18,23

5 MSPB 1225...................................................22

5 U.S.C. 7513(a)................................................17

U.S. MSPB Ch. 43 & 75.....................................17

5 U.S.C. § 7701(c)(2)..................................18,25,34

5 MSPB 122......................................................23

5 C.F.R. § 1201.11 ............................................ . 33

Fed. R. Civ. P. Rule 60(d)...................................27

Fed. R. Civ.P. Rule 60(b)(4).................................16

5 U.S.C. § 706(2)(A)...........................................33

5 U.S.C. § 706(2)(d)...........................................34

5 U.S.C. § 7703(c); see 383 F.3d at 888.................34

5U.S.C.2302(b) ................................................ 34

5 C.F.R. § 1201.4(r))...........................................34

FOR WRIT OF CERTIORARI

Robert J. Sarhan, MD respectfully prays that this

Court grant a writ of certiorari to review the

judgment and opinion of the United States Court of

Appeals for the Eleventh Circuit.

OPINONS BELOW

The Eleventh Circuit Court of Appeals Case No.

15-13834 entered an order denying a Petition for

Rehearing en banc April 10, 2018, The Eleventh

Circuit Court of Appeals entered an order on

November 15, 2017, ruling Per Curiam. The District

Court ruled res judicata applied on July 27,2015. The

United States Court of Appeals for the Federal Circuit

ruled Per Curiam on April 10, 2015, The United

States Court of Appeals for the Federal Circuit Ruled

Per Curiam May 19, 2009. The MSPB original

decision is reported on November 2007 Case No.

AT0752070789-I-1

STATEMENT OF JURIDICTION

This Petition seeks review of a decision of the

United States Court of Appeals for the Eleventh

Circuit Court entered a judgment on April 10, 2018.

This Court has jurisdiction under 28 U.S.0 § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISION INVOLVED

The Fourteenth Amendment to the Constitution

states, in pertinent part, as follows:

"No state shall make or enforce any law which shall

abridge the privilege or immunities of citizens of the

United States; nor shall any state deprive any person

of life, liberty or property, without due process of

Law...

xii

INTRODUCTION

This Writ of Certiorari is of Great National

Importance. After 11 years of fighting for Justice,

numerous Judges continue to deprive the Petitioner

of his Liberty and Property in violation of the

Fourteenth Amendment Rights of Due Process and

turn a blind eye to Fraud on the Court. Under Rule

10, this Petitioner calls for an Exercise of this

Supreme Courts Supervisory Power and seeks

review of a Manifest Injustice that is fundamental to

the integrity of Administrative and Civil proceedings

in the United States, where we Respectfully Request

and Pray for "JUSTICE."

This United States Supreme Court Must Correct

a very serious problem in this Country. Many Judges,

like the Petitioner's Administrative Law Judge (AU)

has violated the Procedural Due Process Rights of the

Petitioner many times over. This ALJ took

Petitioner's Liberty and Property without due

process. This ALJ interfered with the Petitioner's

Civil Rights in violation of 42 U.S.C. § 1985. How

could the Federal Court of Appeals also deny the

Petitioner his Procedural Due Process Rights? How

Could they rule against the Supreme Court

Precedents in Cleveland Board of Education v.

Louderniill, 470 U.S. 532 (1985), Board of Regents of

State Colleges v. Roth, 408 U.S. 564 (1972),Perry v.

Sindermann, 408 U.S. 593 (1972). How Could they

rule against the Supreme Court Precedents in HazelAtlas, 322 U.S. at 250-51 and U.S. v.

Throckmorton, 98 U.S. 61 where the Bureau of

Prisons Staff committed Fraud on the Court?

Many of us American Citizens cannot afford to

hire the best attorneys to undo what this ALJ did,

how he destroyed our family's life? How can this

happen in America, where a Judge would violate the

Constitutional Rights of the Petitioner and other

Judges do the same, like a Good Old Boy System, that

Must Be Retired. The only way that the Supreme

Court can fix this problem is grant this Writ of

Certiorari and punish the Judges that violated the

Constitutional Rights of the Petitioner.

The Petitioner worked for the Department of

Justice Federal Bureau of Prisons (BOP) for Thirteen

Years as a Physician Assistant, however, was a

Medical Doctor. The Petitioner was also on the

Special Operations Response Team most of that time

as his auxiliary duties. During the Petitioners

Thirteen years he never once received an

unsatisfactory evaluation, always fully satisfactory,

exceeds or excellent evaluations, even upon

discharge.

On March 29, 2006, Petitioners wife, who suffers

from a severe case of Paranoid Schizophrenia, wrote

an email to the Bureau of Prisons (BOP) stating that

the Petitioner threatened an inmate if he did not give

legal help, the staff reacted and the inmate stated this

was not true. This email from the Petitioners wife was

supposed to go in the Petitioners file and presented to

the Petitioner within 15 days, that never happened.

The BOP staff fraudulently concealed the email up

until the day of trial. Throughout the discovery period

the Petitioner and attorney had no idea how this case

got started, Petitioners felt like he was fighting a

Phantom.

On March 27, 2007, the Petitioner met with

Warden Pastrana. Petitioner explained orally and in

writing that he spoke with the inmate, mostly about

his children and his wife divorcing him and how his

attorney just told him to plead guilty, he was very

disturbed and the Petitioner gave him medication

daily for depression and anxiety.

On June 5, 2007, the Petitioner was discharged

from the BOP for excepting legal advice from an

inmate.

On October 4, 2007, the hearing started and in the

beginning of the hearing, the ALJ states, if we don't

have it, we are not talking about it. The BOP refused

to turn over the most important document in the

whole trial, the Petitioners wife's Email. This is

Fraudulent Concealment.

Vivian Bonet testified that she was ordered to

sign the termination letter by Warden Pastrana,

however she stated, "knew nothing about the case and

whether the Petitioner was guilty or innocent of

excepting legal advice." The signing of the

termination letter was a Prohibited Personnel

Practice.

However, what was the biggest surprise in the

last five minutes of the Administrative Hearing,

Warden Pastrana testified that he was not the

deciding official and had nothing to do with the case.

In the deposition and throughout the case for 19

months, he testified that he was the deciding official.

Since Warden Pastrana testified that he was not the

deciding official, there are a whole host of Procedural

due process violations, because the BOP took

Petitioners Liberty and Property without Due

Process.

This meant that the Petitioner had No PreTermination hearing, no one heard his oral

response to the charges or read his written response

to the charges. There was No Douglas Factor

completed which was mandatory before termination.

Warden Pastrana committed fraud on the Court as

well as the other staff involved by fraudulently

concealing the most important evidence which started

this case, the Email from Petitioners wife. Since

Warden Pastrana gave sworn testimony that he was

not the Deciding Official, then there was No PreTermination Hearing by the Deciding Official. A

violation of the 14th Amendment of United States

Constitution and A Procedural Due Process Violation,

which was mandatory under the Master Agreement

of the BOP and the Supreme Court. See Cleveland

Board of Education v. Louderm iii, 470 U.S. 532

(1985), Board of Regents of State Colleges v. Roth, 408

U.S. 564 (1972), Perry v. Sindermann, 408 U.S.

593 (1972).

Another big violations of due process was that the

ALJ denied the Petitioner the right to cross examine

the only witness in the case, the inmate. Prior to the

Administrative Hearing, he was moved 1000 miles

away to another federal prison in Yazoo Mississippi.

The ALJ also denied the Petitioner to call the four

witness to testify in his behalf.

The Administrative Judge "misapplied and failed

to consider direct and relevant [board] precedent

concerning Pre-termination Procedural Due Process

rights available to federal employees." See Svejda v.

Department of the Interior, 7 M.S.P.R. 108 (1981), and

in his failure to apply Facciponti v. U.S. Postal

Service, 15 M.S.P.R. 183 (1983). The ALJ findings,

abused his discretion, where the Administrative

Judge refused to reconsider clear factual error. see

Norman v. Arkansas, 79 f.3d 748, 750. This case is A

Manifest Injustice where there were (1) Many

Errors, (2) which were Plain, (3) that Affected the

Appellants Substantial Rights, 507 U.S., at 732, and

(4)The "Errors" "Seriously affect[Ed] The

Fundamental Fairness, Integrity and Public

Reputation of the Judicial Proceedings, United States

v. Olano, 507 U.S. 725, 736, 113 s. Ct 1770,

1779(1993). quoting United States v. Atkinson, 297

U. S. 157, 160 (1936)).

A judgment is a "void judgment" if the court that

rendered judgment... acted in a manner inconsistent

with due process," Kiugh v. U.S. D.C.S.C, 610 F.

Supp. 892, 901. Burke v. Smith, 252 F.3d 1260, 1263

(llthCir. 2001).

STATEMENT OF THE CASE AND THE FACTS

1. BACKGROUND

Appellant was first hired by the Defendant,

Department of Justice Federal Bureau of Prisons on

June 5, 1994 in the position as a Physician Assistant,

Appellant is a Medical Doctor. Plaintiffs employment

with the BOP was wrongfully terminated by the

Defendants on June 5, 2007, at which time he held a

13-year tenured position as a GS 11 Step 8 Physician

Assistant.

On March 29, 2006, the Appellants wife who

suffers from a severe illness of Paranoid

Schizophrenia and noncompliant in taking her

medication, sent a delusional email into the Bureau

of Prisons, stating the Appellant threatened an

inmate for legal help. Immediately, the staff reacted,

and the inmate stated this was untrue.

On February 21, 2007, Vivian Bonet, Health

Service Administrator signed an order of removal,

however Bonet stated "she was ordered to sign the

order of removal by Warden Pastrana, but had no

firsthand knowledge of what took place," her

signature was a Prohibited Personnel Practice 5

U.S.0 § 2302(B)(2).

On March 27, 2007, the Appellant met with

Warden Pastrana who was known to be the Deciding

Official and explained orally and in writing that the

Appellant never excepted legal advice from the

inmate, he had two lawyers working on his Case

Howard Scott and Arthur Morburger, who was an

Appellate Attorney, who were fighting for his mother

freedom from a Guardianship Case, where the

Guardians were isolating and abusing the Appellants

mother. Since that time, the Appellant's mother died

of an overdose of Seroquel, which was contraindicated

and caused her to die of Sudden Cardiac Death at

young age of 79, she had no Family history of heart

problems, was never sick a day in her life.

On June 5, 2007, after 13 years of government

service, the Appellant was dismissed from his position

for excepting legal advice from an inmate, but not one

person at trial could articulate what that legal advice

was, and did it have any value. The Petitioner was

denied the right to cross examine the only witness in

the case the inmate, he was moved 1000 miles away

in another Federal Prison in Yazoo Mississippi prior

to the Administrative Hearing.

On October 4, 2007, Appellant had an

Administrative Hearing with the Merit System

Protection Board (MSPB). In that hearing, the

Administrative Judge, Richard W. Vitaris (known

hereinafter as AU) uncovered the Agency's Fraud on

the Court, Misrepresentation by the Warden

Pastrana, Numerous Prohibited Personnel Practices,

Many Procedural Due Process violations, Fraudulent

Concealment, Discovery Violations and Perjury by

the Agency and the ALJ then ruled and violated the

Due Process Rights of the Petitioner and violated the

U.S. Supreme Court Law and precedent governing

review of fraud on the court actions and did nothing.

On February 8, 2008, Anabella wrote a second

email explaining to the BOP that she has

Schizophrenia, was not taking her medication at the

time she wrote the email and the email was untrue.

Anabella stated, "I suffer from hallucinations and I

take full responsibility for my actions. Appellant wife

has been Baker Acted over 66 times to date and

hospitalizations prior and during her the time she

wrote the Email.

On September 17, 2008, the Appellant appealed

the Administrative Judges decision and was denied,

due to the overwhelming Fraud perpetrated on the

Court by the Agency and ruled in a manner

inconsistent with Due Process.

On July 8, 2013, an experienced Criminal

Attorney, Robert L. Moore filed a 93-page petition to

reopen this closed case due to Fraud on the Court.

However, Judge Thompson stated that he did not

have authority to reopen and reinstate an appeal, he

stated this must be addressed to the full board.

On October 10, 2013, Attorney Robert L. Moore

appealed to the MSPB Board.

On July 31, 2014, the MSPB Affirmed the

Administrative Judges Final Decision was in Error

and stated you may file a civil action against the

agency on both your discrimination claims and your

other claims in an appropriate United States District

Court. See 5 U.S.C. 7703 (b)(2).

On September 6, 2014 Plaintiff files a lawsuit

against the Department of Justice Federal Bureau of

Prisons for wrongful termination, for committing

Fraud on the Court, Prohibited Personnel Practices

and Violating all of the Appellants Procedural Due

Process Rights. The Court ruled res judicata.

On April 10, 2015, the Federal Court of Appeals

stated, "that the Fraud must change the posture of

this case in order to provide a basis for revisiting the

appeal." The Federal Court of Appeals also stated,

"how would of the Concealment change the outcome

of the case"? They also asked, "How would the Fraud

on the Court changed the posture of the Case"? The

Court ruled res judicata.

On July 27, 2015, District Court dismissed the

Appellants case stating that res judicata is bars the

filing of the Plaintiff's claims. "Plaintiff makes a

number of unsubstantiated allegations in support of

his theory that resjudicata is inapplicable and fails to

cite to any legal precedent to support his argument.

The Appellant Appealed the District Courts

Decisions to the Eleventh Circuit Court of Appeals on

grounds that res judicata is inapplicable due to the

Fraud on the Court and Procedural Due Process

violations, the Court ruled res judicata applied and

the Appellant filed for en banc which was denied on

March 30, 2018.

2. COURT PROCEEDINGS

The March 29, 2006 Email from the Appellants

wife was supposed to go into a disciplinary file or

investigative file and the Appellant notified within 15

days by the Human Resource Manager, Marco Cuero.

The Appellant was never notified of the email and was

concealed from the Appellant until the day of the

Administrative Hearing, 19 months later. Even after

hiring counsel, the Email was concealed from his

counsel and the ALJ until the day of the hearing.

Prior to the Hearing the Agency refused the AU

orders to turn over all discovery but on the day of the

trial, the ALJ had not received the email, as well as

the Plaintiff. Here Paralegal James Vogal tries to

cover up this Fraudulent Concealment of 19

months. Lt. Wenzler met with the Appellants wife

and spoke to her while in Jackson South Hospital

Psychiatric Ward and on prison grounds in the

parking lot, with Marital Privileged information and

with perjury and serious discovery violation 5 CFR

1201.73. Perjured testimony by Wenzler and Vogal.

Q: Appellants Attorney Reiner "Is there a reason

you didn't try to find the sender of the email?"

A: Wenzler, Because I had the email right in front

of me Sir.

Q: "I got the email in front of me, what a

coincidence. Did you notice anything unusual about

it?"

Q: Judge Vitaris: "Is the Email in the

record?"

A: Bop Counsel, Mr. Vogal: "No, it's not, your

Honor."

A: Reiner: "Yet, this is the stuff that was just

produced this week and last week?"

Judge Vitaris: "Okay"

Reiner: "I mean, you know, we..."

Q: Judge Vitaris: "Do you have a copy for me?"

A: Reiner: "Actually I think you do. NOW the

Stuff that was made today we made three

copies, I got one , you got one, and..."

Judge Vitaris: "Were not talking about it if I don't

have it."

Reiner: "Agreed. I've got if I may let me give this

(handing documents to the Judge). I have three

chunks."

yoga!: Paralegal James yoga!, "I'd like to

object that this Email was not used in the

Adverse Action File, made to make the

determination whether or not for employment

of Mr. Sarhan.

(Transcript#1: Vol II, P 169 L17-P. 172, L10)

On February 21, 2007, Vivian Bonet, Health

Service Administrator signed an order of removal,

however Bonet stated "she was ordered to sign the

order of removal by Warden Pastrana, but had no

firsthand knowledge of what took place," and had no

idea whether the Appellant was innocent, which is a

Prohibited Personnel Practice 5 U.S.0 §

2302(B)(2).

Q: Reiner: Do you have any first- hand

knowledge of the truth or accuracy of the allegations

in this termination letter?

A: Bonet: No.

Q: Reiner: Did you make any changes to it after

Mr. Cuero prepared it and presented it to you?

A: Bonet: No.

Q: Reiner: Do you have any first-hand

knowledge regarding Mr. Sarhan's guilt or innocence

on any of these allegations?

A: Bonet: No.

(Transcripts #2 Vol. I, P130 L24, P131 Li)

(Transcript #2 Vol I, P133 L10-L13) (Transcript#2

Vol I, P133 L 20 P134 L13)

On March 27, 2007, the Plaintiff met with

Warden Pastrana about his proposal for termination.

The Plaintiff also gave the Warden a written answer

to the charges. At this time, Warden Pastrana was

said to be the deciding official in this case.

On October 4, 2007, in what was perhaps the

biggest surprise of the last 5 minutes of the final

hearing, Warden Jorge Pastrana stated, "I am NOT

the Deciding Official, I'm Not Deciding those

charges or sustain or NOT.

Warden Pastrana stated that:

"The SIS Lieutenant

Special Investigative

Lieutenant is the one that sustained the charges.

And then that's submitted to OIA, too, then they

review it also and that they agree with the charges or

not. But I'm not the Deciding Official. I'm not

deciding those charges or sustain or not."

By AJ Vitares:

Q: "I just had one question. Warden, when you

indicated that the charges had been sustained by

internal affairs and you were not the deciding official,

did you mean that you did not make your own

determination of Mr. Sarhan's guilt or innocence, but

merely deferred to the recommendation of internal

affairs?"

By Warden Pastrana:

A: "Well when I mentioned you know, they did a

report. The investigation is completed and in our case

here. SIS Lieutenant

Special Investigative

Lieutenant [Wenzler] is the one that sustained the

charges. And then that's submitted to OIA, too, then

they review it also and that they agree with the

charges or not. But I'm not the deciding official.

I'm not deciding those charges or sustain or

not." (Emphasis supplied by counsel).

By AJ Vitaris:

Q: "Does that mean then that you did not consider

what Mr. Sarhan's defense is to the charge and you

simply assumed he was guilty because that's what

internal affairs had concluded or did you make your

own determination of his innocence or guilt?

By Warden Pastrana:

A: "I did not do that at that point."

(Transcripts#3 P 273, lines 3-21, P 274 lines 1-4)

In Deposition the Warden stated:

Warden: "I am the Chief Executive Officer for this

Institution. I ensure that the policies and goals with

the Bureau of Prisons are followed and implemented

according to the intent of the policies."

(Transcript#4 page 228, lines 18-24, P 229 linesl-25)

Warden: "In this case I look at the whole thing. I

look at all charges, you know one by one, but my

decision to terminate was based on the file on each

charge, and then on his oral response and write

response that he completely disregarded his

responsibilities."

(Transcript#5 page 263, lines 10-16)

Even the Administrative Judge Vitaris praised

the Appellant at the end of his trial. "Clearly, Mr.

Sarhan, there is no question that your ratings have

been at the worst Fully Successful, at best higher

than that. That you worked long hours. You've been

dedicated to your patients, that your interest in their

welfare is commendable, so that is really not the

controversy."

What was the controversy? Warden Pastrana

claimed that Sarhan could not be rehabilitated, but

Judge Vitaris showed the Warden's statements to be

empty:

Q: by Judge Vitaris "The question is whether

you've had any experience in

the past with

progressive discipline with Mr. Sarhan?"

A: Warden: "No, I said no to that one."

Q: And then the follow up question was: therefore

you would have no basis

whether he could learn from his mistakes?"

A: "No"

know

(Transcript # 6, vol. II, P 270, L 16-24)

REASON FOR GRANTING WRIT

THE DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT IS CONTRARY TO THEIR OWN

OPINION, OTHER CIRCUITS AND CONTRARY

TO THE UNITED STATES SUPREME COURT

PRECEDENT

I. The Petitioner has been denied his 14th

Amendment Rights by an ALJ and all Judges

that followed including the Eleventh Circuit

Court of Appeals, where the Petitioner has been

denied his liberty and property without due

process of law and was denied equal protection

of the laws, therefore the Administrative

Judgment is Void.

Petitioner urges that the decision of the United

States Court of Appeals for the Eleventh Circuit is

contrary to prior opinions of this Court, and this Court

should grant certiorari to correct this contradiction.

Since Warden Pastrana gave sworn testimony

that he was not the Deciding Official, then there was

No Pre-Termination Hearing by the Deciding

Official. A violation of the 14th Amendment of United

States Constitution and A Procedural Due Process

Violation, which was mandatory under the Master

Agreement of the BOP and the Supreme Court

decision in Cleveland Board of Education v.

Loudermill, 470 U.S. 532 (1985), Board of Regents of

State Colleges v. Roth, 408 U.S. 564 (1972), Perry v.

Sindermann, 408 U.S. 593 (1972).

Since Warden Pastrana gave sworn testimony

that he was not the Deciding Official, and there was

NO DOUGLAS FACTOR and there has never been

A Douglas Factor in the Record, which is a Procedural

Due Process Violations. The Administrative Judge

erred, that a Federal Employee cannot be removed

from his position unless the Deciding Official does the

Douglas V.

DOUGLAS FACTOR. See

Veterans Administration, 5 MSPR 280 (1981).

In Sarhan, due to Warden Pastrana backing out

as being the deciding official at the last five minutes

of the Administrative Hearing and committing fraud

on the court, Sarhan had No Pre-Termination

Hearing. No one read the Petitioner's written

response to the charges against him, and the Oral

response to the Warden fell on death ears, since he

had nothing to do with this case.

In Sarhan, there was No Douglas Factor

completed in this case which was mandatory prior to

termination. The U.S. Court of Appeals for the

Federal Circuit, in Ward v. USPS, 634 f. 3d 1274 (Fed.

Cir. 2011) also held that information not provided to

an employee regarding penalty determinations

(under the Douglas .Factors in Douglas V. VA, 5

MSPB 280, 5 MSPB 313 (1981)) were also subject to

Procedural Due Process violations.

Untimely Discipline- The ALJ failed to consider

Untimely Discipline which should have been 120

days. The Petitioner's discipline timeline was over 15

months which according to the Assistant Director of

the Bureau of Prisons Kathleen Kenny's October 31,

2006 memo states, "is cruel and unusual

punishment." The Reversal of an agency's action for

Procedural Error is appropriate "only if the

Procedures followed Substantially Impaired the

rights of the employee. Brewer v. United States Postal

Service, 227 Ct. Cl., 647 F.2d.1093, 1097 (1981),

quoting S. Rep. No. 969, 95th Congress, 2d Session 64,

reprinted in U.S. Code Ad. News 2723, 2786

(emphasis added).

No Progressive Discipline- for a 13-year

Employee although the Administrative Judge

challenged the Warden and again failed to do his job.

What was the controversy? Warden Pastrana

claimed that Sarhan could not be rehabilitated, but

Judge Vitaris showed the Warden's statements to be

empty:

Q: by Judge Vitaris "The question is whether

the past with

you've had any experience in

progressive discipline with Mr. Sarhan?"

A: Warden: "No, I said no to that one."

Q: And then the follow up question was: therefore

you would have no basis to know whether he could

learn from his mistakes?"

A: "No"

The ALJ findings, abused his discretion, where

the Administrative Judge refused to reconsider clear

factual error. see Norman v. Arkansas, 79 f.3d 748,

750 (8th Cir. 1996). If a due process violation is

found, the Administrative Judge must reverse

the agency's action and order the agency to

restore the appellant until he is afforded a "New

Constitutionally correct removal procedure."

Stone, 179 f.3d at 1377; see Ward, 634 f.3d at 1280.

Pursuant to Rule 60(b)(4), a court may relieve a

party from a final judgment or order based on a

finding that the judgment is void. Fed.R.Civ.P.

60(b)(4). Generally, a judgment is void under Rule

60(b)(4) "if the court that rendered it lacked

jurisdiction of the subject matter, or of the parties, or

if it acted in a manner inconsistent with due process

of law." In re Edwards, 962 F.2d 6413 644 (7th

Cir. 1992) (citation and internal quotation marks

omitted); see also Rice v. Ford Motor Co., 88 F.3d 914,

918 n. 7 (11th Cir. 1996). A judgment also is void for

Rule 60(b)(4) purposes if the rendering court was

powerless to enter it. Gschwind v. Cessna Aircraft

Co., 232 F.3d 1342, 1346 (10th Cir.2000).

II. Vivian Bonet, Health Service Administrator

Admitted She Knew Nothing About This Case

but Signed the Termination Letter Because the

Warden Ordered Her to Sign, Which Is A

Prohibited Personnel Practice (5 U.S.C. §

2302(B), MSPB 1225, C.F.R. § 1201.56

On February 21, 2007, Vivian Bonet, Health

Service Administrator signed an order of removal,

however Bonet stated "she was ordered to sign the

order of removal by Warden Pastrana, but had no

firsthand knowledge of what took place," and had no

idea whether the Appellant was innocent, which is a

Prohibited Personnel Practice 5 U.S.0 § 2302(b)(2).

Bonet stated that the Appellant was one of her best

employees and Never received an unsatisfactory

performance evaluation in 13 years, always excellent

and exceeds. The agency's action does not

promote the Efficiency of the Federal Service.,

5 U.S.C. 7513(a) and cannot terminate an

employee if the employee's performance

evaluations are excellent for 13 years and

promotes the Efficiency of Federal Service.

Under either chapter 43 or chapter 75, the

agency's decision will not be sustained if: (1) there was

a Harmful Error in the application of the agency's

procedures; (2) the action was based on a Prohibited

Personnel Practice (such as discrimination or

whistle blowing); or (3) the decision was otherwise

Not in Accordance with The Law. These are

known as "affirmative defenses." To prevail on an

affirmative defense, the appellant must prove it by a

preponderance of the evidence. MSPB 5 U.S.C. §

7701(c)(2); see 5 U.S.C. § 2302(b) (listing the

prohibited personnel practices). MSPB 122 5 C.F.R. §

1201.56.

III. The Administrative Judge denied the

Petitioners Fundamental Rights to Cross

Examine the Only Witness in the Case, the

Inmate, which according to the Eleventh

Circuit, was a clear abuse of discretion and

denied the Petitioner due process.

The Appellant lost his employment because he

was accused of excepting some sort of legal advice by

an inmate that was in Federal Prison.

The Warden testified, "he did not know what the

legal advice was or if the legal advice had any value."

Since the inmate was the only witness in this case, it

was the right of the Appellant's Attorney to cross

examine the inmate's credibility, since the Appellants

attorney could not cross examine his affidavit. Since

the Appellants Liberty and Property were at stake,

the Appellant's and his Family's life and future were

"condemned to suffer grievous loss," after being

employed for 13 years and not having a medical

doctors license to practice medicine, outside of

government agencies; the ALJ abused his discretion

and violated a claimant's right to procedural due

process, where he denied the claimant's request to

depose and cross-examine the only witness in the

case.

The right to cross-examine witnesses under oath

is a fundamental right and cannot be denied. [ii]

In Demenech v. Secretary of DHHS, 913 F.2d 882,

885 (11th Cir. 1990) the Eleventh Circuit held that an

ALJ abused his discretion and violated a claimant's

right to procedural due process where he denied the

claimant's request to depose and cross-examine the

author of an adverse medical report and then

substantially relied on the report as the basis for

finding the claimant was no longer disabled.

The Court reviews limitations on the scope of

cross-examination for "a clear abuse of discretion."

United States v. Maxwell, 579 F.3d 1282, 1295 (11th

Cir. 2009). However, we address de novo the question

of whether a defendant's Sixth Amendment rights

were violated. United States v. Ignasiak, 667 F.3d

1217, 1227 (11th Cir. 2012).

In Perales, the Supreme Court also noted that the

"extent to which procedural due process must be

afforded [to a party] is influenced by the extent to

which he may be 'condemned to suffer grievous loss."

402 U.S. at 401-02 (citing Goldberg v. Kelly, 397 U.S.

254, 262-63 (1970) (termination of AFDC benefits)).

Similarly, the extent to which "credibility and

veracity are at issue" Richardson v. Perales, 402 U.S.

389, 408 (1971) may have a bearing on the propriety

of receiving evidence where there has been no

effective opportunity to confront the adverse

witnesses. For example, Connecticut has upheld the

use of written reports of dentists who were not biased

or interested in a license proceeding, Altholtz v. Conn.

Dental Comm'n, 4 Conn. App. 307, 311-14, 493 A.2d

917, 921-22 (1985), but has rejected the hearsay

affidavits of accident witnesses in a driver's license

revocation proceeding, Carlson v. Kozlowski, 172

Conn. 263, 268, 374 A.2d 207, 209 (1977).

So, for example, in a contested case where a

licensee is charged with making fraudulent

representations, consideration of the "potential for

loss of livelihood" as for the Appellant, "who has not

practice medicine in 11 years," witness credibility

would appear to swing the scales in favor of an

absolute right to confront the adverse witnesses. A

licensee may also argue that licensing proceedings are

quasi-criminal and may attempt to invoke the Sixth

Amendment right "to be confronted with the

witnesses against him." See Padilla v. Minn. Bd. of

Med. Exam's, 382 N.W.2d 876, 883 (Minn. Ct. App.

1986) (holding that the admission of medical records

prepared by a physician in a physician disciplinary

proceeding does not deny rights to cross-examine or

confront witnesses).

Furthermore, it can be argued that under the

APA and OAH rules, due process considerations

aside, there is a clear and unequivocal right to cross

examine that cannot be taken away in the absence of

an express statutory provision. In Perales, the

procedural rules appeared to balance the right to

cross-examine by permitting it where necessary for "a

full and true disclosure of the facts" 402 U.S. at 409

and by placing hearing procedures "in the discretion

of the hearing examiner" as long as they afford "a

reasonable opportunity for a fair hearing." The

Minnesota APA and OAH rules do not balance the

right to cross-examine against the overall procedural

fairness afforded by the hearing. For a discussion of

the post -Perales case law, see Kenneth Gulp Davis &

Richard J. Pierce, Jr., Administrative Law Treatise §

16.8. (3rd ed. 1994).

Justice Marshall concurred in Part II in

Cleveland Board of Education v. Loudermill, in the

judgment, stating that, "before a decision is made to

terminate an employee's wages, the employee should

be entitled to confront and cross-examine adverse

witnesses and to present witnesses on his own behalf

whenever there are substantial disputes in

testimonial evidence."

The Petitioner was discharged from his position

without a Pre-Termination Hearing and was without

pay from June 2007 to October 2007 when the

Administrative Hearing was held. The Petitioner was

denied the right to confront and cross examine and

adverse witness, since there was a substantial

dispute in testimonial evidence and we already

suffered a grievance loss of a career.

IV. Res judicata is inapplicable and cannot be

enforced due to the ALJ lack of jurisdiction, due

process violations, concealment, fraud on the

court and misrepresentation by the Warden

The principle of res judicata should be invoked

only after careful inquiry because it blocks

"unexplored paths that may lead to truth" and

"shields the fraud and the cheat as well as the honest

person." Felsen 442 U.S. at 132, 99 S. Ct. at 2210.

In Kissel v. U.S. Postal Service, Docket No.

SF03538810179, 42 MSPB 154 (October 17, 1989)

provides an exception to res judicata where "there has

been mistakes, fraud, concealment, or

misrepresentation by the [agency]." Prima Facie

evidence has been provided to the Lower Court in

which res judicata is inapplicable, due to clear case of

Fraud on the Court and A Manifest Injustice.

We recognize the importance of administrative

res judicata; however, enforcement of that policy must

be tempered by fairness and equity. Neither

collateral estoppel nor res judicata is rigidly

applied in administrative actions; both rules are

qualified or rejected when their application would

contravene overriding public policy or result in

Manifest Injustice. See Tipler v. E. I. duPont de

Nemours and Co., 443 F.2d 125, 128 (6th Cir. 1971).

Res judicata of administrative decisions does not

acquire the rigid finality of judicial proceedings. Grose

v. Cohen,, 406 F.2d 823, 825 (4th Cir. 1969); Courli v.

Weinberger, 393 F.Supp. 1033 (E.D.Cal. 1975). Where

record of administrative proceeding is patently

inadequate to support findings of administrative law

judge, application of res judicata is tantamount to

denial of due process and since fairness in

administrative process is more important than

finality of administrative judgments, res judicata is

inappropriate. See Thompson v Schweiker (1982, CA9

Cal) 665 F2d 936.

We add that the doctrine applies even more

flexibly in the administrative context than it does

when a second court of competent jurisdiction is

reviewing the decision of a first court. Our prior case

law suggests that this is true. Am. Heritage Life

*1378 Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 3, 10

(5th Cir. 1974) ("We suggest that the doctrines [of

res judicata and collateral estoppel], with respect to

administrative proceedings, are not applied with the

same rigidity as their judicial counterparts."). And a

clear majority of our sister circuits have agreed. See

Alvear—Velez v. Mukasey, 540 F.3d 672, 677 (7th

Cir.2008) ("[W]e have applied res judicata much more

flexibly in the Administrative context."); Collins v.

Pond Creek Mining Co., 468 F.3d 213, 229 n. 3 (4th

Cir.2006) ("We have held that 'res judicata of

administrative decisions is not encrusted with the

rigid finality that characterizes the precept in judicial

(alteration omitted)); Quinones

proceedings.'

Candelario v. Postmaster Gen., 906 F.2d 798, 801 (1st

Cir. 1990) ("[In the context of administrative

proceedings, res judicata is not automatically and

rigidly applied in the face of contrary public policy.");

Facchiano v. U.S. Dept of Labor, 859 F.2d 1163, 1167

(3d Cir.1988) ("[A]dministrative preclusion

is not

as rigidly enforced as preclusion in judicial

proceedings."); Artukovic v. INS, 693 F.2d 894, 898

(9th Cir. 1982) ("[I]n the Administrative law context,

res judicata [is] applied flexibly."); Parker v.

Califano, 644 F.2d 1199, 1202 (6th Cir.1981)

"[A]dministrative res judicata

is applied with less

rigidity than its judicial counterpart."); United States

v. Smith, 482 F.2d 1120, 1123 (8th Cir.1973) (same);

Cartier v. Sec'y of State, 506 F.2d 191, 196

(D.C.Cir.1974) ("[T]he doctrine of administrative res

judicata has not evolved into a rigid system that is

to be blindly applied in every context.").

...

Whether the Court of Appeals erred stated res

judicata applies in this case, where the decisions by

the Sixth and Seventh Circuits and contrary to the

U.S. Supreme Court which states res judicata does

not apply to a judgment that rests on both a lack of

jurisdiction and a merits determination. See Remus

Joint Venture v. McAnally, 116 F. 3d 180, 184 n.5 (6th

Cir. 1997). The U.S. Supreme Court in Scheuer v.

Rhodes, supra, 416 U.S. 232, 94 S. Ct. 1683, 1687

(1974). "A court must vacate any judgment entered in

excess of its jurisdiction." (Lubben v. Selective Service

System Local Bd. No. 27, supra, 453 F.2d 645 (1st Cir.

1972). A void judgment, however, is subject to both

direct and collateral attack. Lubben v. Selective

Service System Local Bd. No. 27, 453 F.2d 645 (1st

Cir.1972); Graciette v. Star Guidance, Inc., 66 F.R.D.

424 (D.N.Y.1975).

V. Fraud on the Court and Fraudulent

Concealment by the Warden and Staff of the

BOP which Voids the Administrative Judgment

The eleventh Circuit Court of Appeals, Federal

District Court, MSPB and Administrative Courts all

violated the Due Process Rights of the Petitioner and

violated the U.S. Supreme Court Law and precedent

governing review of fraud on the court actions (HazelAtlas,

322

U.S.

250-51 and U.S.

Throchmorton, 98 U.S. 61), by and summarily

affirming the Petitioner's District Court actions for

relief from judgment procured by fraud on the court

all without ever reviewing Petitioner's fraud on

the court allegations, the very subject matter of

his action and the very allegations proven with

prima facie evidence that entitle him to relief.

The Fraud on the Court was rendered all the more

egregious because the Warden of the Federal Prison

Misrepresented that he was the Deciding Official

for 19 months, throughout the investigation, in

deposition and until the last five minutes of the

Administrative Hearing, he stated, "But I am not

the Deciding Official, I'm not deciding those

charges or not." The Agency Misrepresentation as

to who was the Deciding Official in the Petitioner's

case was an attempt and succeeded in "gaining an

unfair advantage over the Petitioner, this gross

misbehavior constituted a Fraud on the Court." Aoude

v. Mobil Oil Corp., 892 F.2d 1115, 1118-1119 (1st Cir.

1989).

The Fraud on the Court is almost identical to the

Case of John Martin v. Automobili Lamborghini

Exclusive in Case No: 00-12489, United States Court

of Appeals for the Eleventh Circuit, where they

upheld a dismissal for Fraud on the Court where the

Plaintiff had engaged in substantial misconduct

which included:

misleading the court about the real party in

interest in the case; As the Warden stated he was the

deciding official for nineteen months, then at trial, he

changed his prior sworn testimony, that he was not

the deciding official and had nothing to do with the

case.

engaging in extensive discovery abuse to obstruct

revelation of the known falsities in the Complaint;

The BOP staff all colluded together to keep the email

from the Petitioner, throughout the 19 months, the

Petitioner had no idea his wife was involved, she was

Baker acted probably 4 to 5 times that year. The

Petitioner had no idea there was an email until the

day of the trial.

The Warden's Fraud on the Court prevented the

Appellant from fairly presenting his case or defense

and violated the Appellants Procedural Due Process

Rights. Chemtall Inc. v. Citi-Chem. Inc., 992 F. Supp.

1390, 1409 (S.D. Ga. 1998)(quoting Nichols v. Klein

Tools, Inc., 949 F.2d 1047, 1048 (8th Cir. 1991). As in

Chem tall, the Appellant has spent substantial

resources in attempt to get a Court to reverse the

Manifest Injustice that the Appellant and his Family

have suffered over the last 10 years and in

foreclosure.

According to Judge Ryskamp, the Appellants

entire case is Fraudulent. Judge Ryskamp was faced

with a similar case: the crux of the case was fraud. see

Vargas v. Peltz, 901 F. Supp. 1572 (S.D.F1a.1995). In

Vargas, the plaintiff brought a sexual harassment

suit based upon an incident in which the plaintiff

alleged that her superior gave her a woman's

undergarment and told her to wear if for him. The

Vargas plaintiff testified to the incident at deposition

and produced the undergarment. Id. at 1574. Upon

investigation, the defendant learned that the

undergarment produced had not been manufactured

until a year later after the alleged incident. Id. at

1574-1575. Judge Ryskamp held that the complaint

should be dismissed because the plaintiff:

"has sentiently set in motion some unconscionable

scheme calculated to interfere with the judicial

system's ability to impartially to adjudicate a matter

by improperly influencing the Trier or unfairly

hampering the presentation of the opposing party's

claim or defense."

In Vargas, 901 F. Supp. at 1579. "Fraud on the

Court has been found only in those instances where

the fraud vitiates the Court's ability to reach an

impartial disposition of the case before it. See

Harbold, 51 F.3d at 622." Davenport Recycling

Associates v. C.I.R., 220 F.3d 1255, 1262 (11th Circuit

2000). This is precisely our allegations here.

The Supreme Court has described Fraud on the

Court as a wrong against the Institutions set up to

protect and safeguard the public. Hazel-Atlas Glass

Co. v. Hartford Empire Co., 322 U.S. 238, 246 (1944):

"Fraud on the Court is used to describe a variety of

improper acts that may lead to sanctions under the

rules of civil procedure or pursuant to a Court's

inherent power in managing its docket. E. G. Stanley

Shenker & Assocs. v. World Wresting Fed 'n Entm 't, 48

Conn.Supp.357 (Conn.Ct.2003)."

The Appellant is entitled to Relief, under the

Manifest Injustice Doctrine and for Fraud on the

Court under Rule 60(d) which is a narrow doctrine

and constitutes "only that species of fraud which does

or attempts to, defile the court itself, or is a fraud

perpetrated by officers of the court so that the judicial

machinery cannot perform in the usual manner its

impartial task of adjudging cases." Travelers Indern.

Co., 761 F.2d at 1551. Rule 60(d) "preserves a court's

historical equity power to entertain an independent

action to relieve a party from a judgment, order, or

proceeding," but is "reserved for those cases of

injustices which, in certain instances, are deemed

sufficiently gross to demand a departure from rigid

adherence to the doctrine of res judicata." Aldana v.

Del Monte Fresh Produce N.A., Inc., 741 F.3d 1349,

1359 (11th Cir. 2014) (emphasis added) (quoting

United States v. Beggerly, 524 U.S. 38, 46, 118 S.Ct.

1862, 1867, 141 L.Ed.2d 32 (1998)) (quotations

omitted). Appellant files this Rule 60(d), as adopted

by the Eleventh Circuit, the elements of a Rule 60(d)

independent action are as follows:

a judgment which ought not, in equity and good

conscience, to be enforced;

a good defense to the alleged cause of action on

which the judgment is founded;

fraud, accident, or mistake which prevented the

defendant in the judgment

from obtaining the benefit of his defense;

the absence of fault or negligence on the part of

defendant;

the absence of any adequate remedy at law.

Bankers Mortg. Co. v. United States, 423 F.2d 73, 79

(5th Cir. 1970); Day v. Benton, 346 F. 3 App'x at 478.

Fraudulent Concealment Doctrine

Discovery Violation

The Agency's extensive cover up of the Appellants

wife's Email for 19 months, is what started this

investigation. According to the BOP's Master

Agreement, the Email should of went into the

Appellants file and Cuero was to contact the

Appellant within 15 days of receiving the Email,

however the Agency failed to do so and even when

ordered by the AJ, refused his orders. Discovery

violation 5 CFR 1201.73. Paralegal James Vogal, "I'd

like to object that this Email was not used in the

Adverse Action File, made to make the determination

whether or not for employment of Mr. Sarhan.

(Transcript 1: Vol II, P 169 L17-172, L1O)

Fraudulent Concealment Elements

To establish a prima facie case of fraudulent

concealment, a plaintiff must offer proof that

satisfies five elements:

The defendants concealed or suppressed a

material fact; The Appellants wife's Email.

The defendant was under a duty to disclose the

fact to the plaintiff; The Defendants had 15 days to

contact the Appellant when they received the Email,

the Defendants Never contacted the Appellant. The

AW ordered the BOP to turn over all Discovery and

the Defendants refused the AL's orders and

concealed the email for 19 months until the day of the

hearing.

The defendant intentionally concealed or

suppressed the fact with the intent to defraud

the plaintiff; that is, the defendant concealed or

suppressed the fact for the purpose of inducing

the plaintiff to act differently than he would

have if he had known the fact; The whole case

started because of the Email, the Defendants built

this whole case around the Email, the Defendants

concealed the Email due to Marital Privilege and

other reasons to defraud the Appellant out of his

Property Right, his career.

The plaintiff was unaware of the fact and would

have acted differently if he had known of the

concealed or suppressed fact; The Appellant

Never knew how the case was started, therefore did

not know an Email existed till the day of the Hearing.

If the Appellant knew it was his wife's Email, he

would have subpoenaed his wife and wife's

Psychiatrist who is treating her for a severe case of

Paranoid Schizophrenia (noncompliant with

medication) and his wife would have testified at the

hearing that the Email was Delusional.

As a result of the concealment or suppression

of the fact, the plaintiff sustained damages. The

Appellant graduated medical school and was

studying for his board exam when he started

working for the BOP. The Appellant never received

his license, however was studying for his license

when he lost his job. The Appellant therefore has not

practiced medicine since working for the BOP. The

Appellant has raised his 14-year old son alone, he is

in foreclosure and soon could be homeless, by

September of 2018. The Appellant is 57 years old

and has suffered tremendously. Dow Chemical Co. v.

Mahium, 114 Nev. 1468, 1483-84, 970 P.2d 98, 110

(1998) (citing Nevada Power Co. v. Monsanto Co.

891 F.Supp. 1406, 1415 (D.Nev.1995)).

CREDIBILITY ISSUES WITH

WARDEN PASTRANA

Warden Pastrana found not to be Credit

Worthy, the documentary material submitted by the

Agency, I find Martin's testimony creditable and that

of Warden Pastrana not to be credit worthy ..."

American Federation of Government Employees,

Council of Prison Locals, Local 4052 and U.S

Department of Justice, Federal Bureau of Prisons

MDC, Guaynabo, P.R., Federal Arbitration, 0-AR4228, FMCS: 02-12276 (November 27, 2006)

(Appendix H)

The case of Tonita Caban v. Department of

Justice, MSPB (April 24, 2013) Docket Number AT13-0002-I-1, where the Bureau 's Warden Pastrana

was found Not Credible and Caban was charged

with more severe charges than the Appellate which is

Disparate Treatment, was put back to work due to the

efficiency of service after five years of the charges

were Mitigated.

In the matter of Mel-Ling Burgos, testimony by

Warden Pastrana was found Not Credible, the

Warden claims he sent a fax to Washington referred

to the Vergara report to OIA, who would be

responsible for investigating this matter. The Warden

claimed somehow it was not received in Washington

five months later. The grievance committee found

that Warden Pastrana was Not Credible in the

matter of Dr. Helfeld, FMCS Case No 02-13441 (In

the Arbitration tribunal April 3, 2003) American

Federation of Government Employees AFGE,

Metropolitan Detention Center, Guaynabo Puerto

Rico.

CREDIBILTY ISSUES WITH

LT ROBERT WENZLER

Lt. Robert Wenzler, SIS who was involved in

Plaintiffs termination, was the investigator in the

Appellants case and testified as the Investigator in

this case. At FCI Miami, Lt. Robert Wenzler offered

two inmates favors for planting Marijuana in staff

member and Union President, Lionel Phillips office,

Lionel Phillips caught the inmate and pressed body

alarm. After the investigation, the Warden asked

Phillips, what do you want to keep this quiet, Officer

Phillips wanted a teaching job in Education, which

was a 30,000 dollar per year raise, he received the

position and requested Wenzler to leave the

Institution. Please see Affidavit of Officer Phillips,

(Appendix F & G)

Warden Pastrana sent Wenzler to FCI

Manchester. Within a short time at FCI Manchester,

Wenzler was immediately demoted from his position

as Special Investigative Services (SIS), where

Wenzler was caught pulling documents from records,

coercing and intimidating staff to lie in official

investigations, coercing staff to sign documents in

which they should not, and was demoted by Warden

Karen Hogsteb, in which she stated, "I have lost all

confidence in Lt Wenzler. Please see affidavit of

Union President Daniel M. Ludwig, Appendix G

Wenzler threatened the Appellant to sign the

Affidavit or the Appellant would be fired on the spot,

the Appellant signed the Affidavit that Wenzler wrote

and ordered the Appellant to sign. The Affidavit was

switched to "Have Not" to "Have" at the beginning of

each sentence. A technique used to confuse staff in

order to sign a opposite of what you thought you were

signing.

CREDIBILITY OF MARCO CUERO HUMAN

RESOURCE MANAGER

According to the BOP Master Agreement, Cuero

was supposed to contact the Appellant within 15 days

after the Email from his wife was received by the

BOP. Cuero Never contacted the Appellant. The

Appellant had absolutely no idea how this case got

started, until the day of the Administrative Hearing.

During this same time period, Mr. Cuero had an

inmate doing his work for him, updating Staff

Members medical and insurance forms on Mr. Cuero's

Computer, he was breaking rules and endangering

the staff at FCI Miami, by giving an inmate access to

300 staffs social security numbers, home addresses,

children's names and other confidential information,

he only received a two- week suspension.

SUMMARY

The Administrative Judge committed numerous

judicial errors and violated the Due Process Rights of

the Appellant. The Administrative Judge shall

ensure that the appellant's due process rights

are protected. See 5 C.F.R. § 1201.11 (stating that

"[i]t is the board's policy that [its regulations] will be

applied in a manner that ensures the fair and efficient

processing of each case").

A Court reviewing a decision of the Merit System

Protection Board must "set aside any agency action,

finding, or conclusion found to be:

arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law. 5 U.S.C. §

706(2)(A); United States v. Bean, 537 U.S. 71, 77

(2002); Gardner v. U.S. Bureau of Land Mgmt., 638

F.3d 1217, 1224 (9th cir. 2011); Latino Issues Forum

v. EPA, 558 F.3d 936, 941 (9th cir. 2009); High

Sierra, Hikers Assn, 390 F.3d at 638; Public Util.

Dist. No. 1, 371 F.3d at 706.

obtained without procedures required by law, rule

or regulation reviewed de novo and 5 U.S.C. §

706(2)(D).

unsupported by substantial evidence.. ."5 U.S.C. §

7703(c); see 383 F.3d at 888.

Under 5 U.S.C. 7701(c)(2), the Board is required

to reverse the action of the agency, even where

the agency has met the evidentiary standard stated

in paragraph (b) of this section, if the appellant:

Shows harmful error in the application of

the agency's procedures in arriving at its decision (as

defined in 1201.4(r));

Shows that the decision was based on any

prohibited personnel practice described in 5 U.S.C.

2302(b); or

Shows that the decision was not in accordance

with law.

CONCLUSION

For the foregoing reasons above and after 11

years of being denied Liberty, Property and denied

equal protection of the laws, the Petitioner prays that

this United States Supreme Court will grant a Writ

of Certiorari and or Void the Administrative

Judgment in this case.

August 30, 2018

Respectfully Submitted,

A&Y-0-i

7)7/)

Rober J. Sarhan, MD

22795 SW 212 Ave

Miami, Florida 33170

Te1.No. 305-338-6160

drrob2007@yahoo.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.