Petition for Writ of Certiorari — Pamela Melvin, Petitioner v. Peter O'Rourke, Secretary of Veterans Affairs

No.

IN THE

SUPREME COURT OF THE UNITED STATES

PAMELA MELVIN,

Petitioner,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

PAMELA MELVIN

4949 Fieldcrest Drive

Fayetteville, NC 28303

(i).

QUESTIONS

In Chambers v. NASCO, Inc., 501 U.S. 32, 50

(1991), this Court held that all federal courts have

the inherent power to impose sanction for bad faith

litigation without regard to any limitations in the

Rules and statutes and that review on appeal is

The

under the abuse of discretion standard.

Federal Circuit ruled (a) that 38 USC § 7292

prohibits its review of the decision made on an

unopposed motion for sanction filed under the

Veterans Court inherent power and its review of

the U.S. Department of Justice's letter supporting

sanction, and (b) that bad faith litigation—

unlawful search and seizure; access to, harassment

on, and deleting typing for court from computer;

and denying right to testify—are not

unconstitutional under §7292(d)(2). Against its

firmly held precedents, the Federal Circuit allowed

arguments not presented below for one party only.

The questions presented are:

Whether 38 USC § 7292 prohibits review of

the Veterans Court's decision and evidence.

Whether the Federal Circuit's decision conflicts with this Court's decisions, its own

precedents, the decisions of other U.S Court of

Appeals and the U.S. Constitution regarding

courts' inherent power to sanction, standard of

review abuse of discretion, waived arguments,

search and seizures, due process, failure to deny is

an admission, and equal protection.

(ii).

PARTIES OF THE PROCEEDINGS

Pamela Melvin is the petitioner. Robert L.

Wilkie, Secretary of Veterans Affairs, is the

respondent.

CORPORATE DISCLOSURE STATEMENT

Pursuant to U.S. Supreme Court Rule 29.6,

Petitioner Pamela Melvin is an individual with no

corporate affiliation.

(m).

TABLE OF CONTENTS

Page

Questions Presented .........................................i

List of Parties..................................................ii

Table of Contents ............................................iii

Table of Authorities ..........................................v

Opinions Below...............................................xiv

Statement of Jurisdiction................................xiv

Constitutional and Statutory

Provisions Involved .........................................xv

Statement of Case ............................................1

Reasons for Granting the Petition.......................9

I. The Federal Circuit's Decision Departed

From This Court And Other Federal

Court of Appeals By Ruling That 38

USC 7292 Prohibits Its Review Of

Court's Inherent Power to

Sanction......................................................9

A. The Federal Circuit Departed from

this Court's Decision and Provisions

Created in Chambers.................................9

(iv).

B. The Federal Circuit's Decision Conflicts

With the Decisions of All Twelve Other

Federal Court of Appeals.........................13

II. The Federal Circuit Issued A Decision

That Denied Equal Protection By Accepting

Waived Arguments For One But Not

Others......................................................22

The Federal Circuit denied Equal

Protection By Accepting Waived

Arguments.......................................22

The Federal Circuit Do Not Deviate

From Its Rule That Arguments

Made For The First Time on

Appeal Are Waived And Are Not

Considered .........................................30

Other Federal Court of Appeals

Practice the Rule that Arguments Not

Presented Below are Deemed Waived.

and Are Not Considered on Appeal.......31

This Court Has Upheld the General

Rule That Issues Not Presented

Below are Waived ........................ ....... 32

III. The Bad Faith Litigating Acts Alleged

in the Motion for Sanction Are

Constitutional Issues Reviewable by

the Federal Circuit..............................33

(v).

Conclusion

.39

APPENDIXES

APPENDIX A: Opinion of Federal Circuit

11/13/2017 .............................. la.

APPENDIX B: Order of Veterans Court.

10/12/2014..............................7a

APPENDIX C: Opinion of Federal Circuit

12/14/15...............................14a

APPENDIX D: Letter of U.S. Dep't of Justice

2/4/16..................................19a

(vi).

TABLE OF AUTHORITIES

CASES

Page(s)

Agra, Gill & Inc. v. Benson,

920 F.2d 1173, 1176 (4th Cir. 1990)...................31

Albright v. Oliver, 510 U.S. 266, 273

(1994)....................................................................34

Angelico v. Lehigh Valley Hospital Inc.,

184 F.3d 268 (3rd Cir. July 1999)....................16

Askins v. Doe No. 1, 727 F.3d 16

248, 252 (2d Cir. 2013)......................................31

Baber v. Hospital Corporation of America,

977 F.2d 872, 878 (4th Cir. 1992)......................34

Beeson v. Smith, 893 F.2d 930,

931 (7th Cir. 1990)..........................................18

Bolker v. Commissioner, 760 F.2d

1039, 1042 (9th Cir. 1985).............................32

Boyd v. United States, 116

U. S. 616, 626 (1886).....................................38

Carroll v. Jacques Admiralty Law

Firm, 110 F.3d 293 (5th Cir. 1997...................17

Chambers v. NASCO, Inc., 501 U.S. 32,

43(1991) ...... 8, 9, 10, 12 13, 14, 15, 16, 17, 18, 19

(vu).

Connecticut Nat'l Bank v. Germain, 503

U.S. 249, 253-254 (1992)................................11

Charles v. Shinseki, 587 F.3d

1318, 1322 (Fed. Cir. 2009..............................23

City of Alexandria v. CLECO Corp., 547

F.App'x 568, 569 (5th. Cir. 2013) ...................17

Cutter v. Wilkinson, 544 U. S.

709, 718, n. 7(2005)......................................26

Depree v. Thomas, 946 F.2d

784, 793 (11th Cir. 199)....................................32

Dotson v. Bravo, 321 F.3d 663,

667 (7th Cir. 2003)...........................................18

Ebert v. Brown, 4 Vet.App.

434, 437 (1993)))...........................................10

Evans v. Valley W. Shopping Center,

567 F.2d 358, 361 (9th Cir. 1978)...................32

F.J. Hanshaw Enters., Inc. v. Emerald

River Dev., Inc., 244 F.3d 1128, 1136

(9th Cir. 2001)...............................................19

First Bank of Marietta v. Hartford

Underwriters, 307 F.3d 501, 519

(6th Cir. 2002)..............................................18

(Viii).

Fresenius USA, Inc. v. Baxter Intl, Inc.,

582 F.3d 1288, 1296 (Fed. Cir.

2009)......................................................29, 30

Gene S. Groves, v. Robert A. Mcdonald

Vet Court No. 14-269 .................................... ha

Golden Bridge Technology, Inc. v.

Nokia, Inc., No. 07-1215 (Fed. Cir.

May 21,2008) ............................................... 30

Goodyear Tire & Rubber Co. v. Haeger,

(2017)............................28, 29, 33

581 U. S.

Google Inc. v. Simple-Air, Inc.,

No. 2016-1901, slip op. (Fed. Cir.

Mar. 28, 2017).............................................29

Goya Foods, Inc. v. Wallace Management

Co. et al., 344 F.3d 16(1st Cir 2003).................14

Graham v. Connor (1989) 490 U.S. 386,

395(1989) .................................................... 34

Gray v. Netherland (1996) 518 U.S. 152,

(162-163.) .............................................................34

Harlan v. Lewis, 982 F.2d 1255,

1261 (8th Cir. 1992........................................19

Harvey v. Shinseki, 24 Vet.App.

284,287(2011) ............................................. 22

OX).

Hirabayashi v. United States, 320

U.S. 81, 100 (1943)......................................28

In Re Lehtinen, 564 F.3d 1052

(9th Cir. 2009)..............................................19

In Re: Fiorano Tile Imports,

Inc., 14-3915 (2d Cu. 2015).............................32

In re Murchison, 349

U.S. 133, 136 (1955)......................................37

Jackson v. Microsoft Corp., 211

F.R.D.,423, 430-32 (W.D. Wash.

2002) affd 78 Fed. App'x

588 (9th Cir. 2003)........................................33

John Ak ridge Co. v. Travelers Companies,

944 F. 5upp. 33 (D.D.C. 1996).........................19

Jones v. Derwinski, 1 Vet.App.

596,606(1991).............................................22

Jones v. Winnepesaukee Realty, 990

F.2d 1, 6 (1st Cir. 1993)................................22

Katz v. United States,

389 U.S. 347 (1967)..................................32, 33

Kenney v. Supreme Lodge,

252 S. 411, 252 U.S. 415................................13

(x).

Kleiner v. First Nat'l Bank, 751

F.2d 1193, 1209-10 (11th Cir. 1985).................19

Kontrick v. Ryan, 540 U.S. 443,

456(2004) ...................................................... 20

Kyllo v. United States,

533 U.S. 27 (2001)..................................36, 38

Lawrence v. Texas,

539 U.S. 558 (2003)......................................37

Mass. Mut. Life Ins. Co. v. United States,

782 F.3d 1354, 1369 (Fed. Cir. 2015)...............30

MCM Portfolio LLC v. HewlettPackard Co., 812 F.3d 1284, 1294 n.3

(Fed. Cir. 2015)............................................29

F. App'x

2017

Melvin v. Shulkin,

*2_3

WL 3526629, at

(Fed. Cir. 2017)..............25

_,

Micron Technology, Inc. v. Rambus

Inc., 645 F.3d 1311 (Fed. Cir. 2011).................21

Militex Indus. Corp. v. Jacquard Lace Co.,

55 F.3d 34, 38 (2d Cir. 1995)............................17

Monsanto Co. v. Scruggs, 459

F.3d 1328, 1341 (Fed. Cir. 2006......................30

Natural Gas Pipeline Co. v. Energy Gathering,

Inc., 2 F.3d 1397, 141011 (5th Cir. 1993)..........17

(xi).

Nelson v. Adams USA, Inc., 529 U.S.

460,469(2000) ............................................. 33

Payne v. McLemore 's Wholesale & Retail

Stores, 654 F.2d 1130, 1146 (5th Cir. 1981).......33

Payton v. New York 445

U.S. 573 (1980)............................................37

Peer v. Lewis, 606

F.3d 1306, 1314(11th Cir. 2010.......................20

Perry v. Ethan Allen, Inc., 115 F.3d

143, 154 (2d Cir. 1997)..................................15

Perry v. West, 11 Vet.App. 319,

322(1998) ................................................... 22

Petro-Hunt, L.L.C. v. US 862 F.3d

1370 (Fed. Cir. 2017)....................................30

Pope v. Fed. Express Corp., 974 F.2d 982,

984 (8th Cir. 1992).......................................17

Pousson v. Shinseki, 22 Vet.App.

436(2009) . .................................................. 22

Projects Mhmt. Co. DynCorp Intl LLC

34 F.3d 366 (4th Cir. 2013) ..................... ......... 20

Riley v. California, 134

S. Ct. 2473 (2014)...........................................35

(xli).

Robbins, el al., v. Lower Merion School

District et al., U.S. District Court

Eastern District of Pennsylvania,

2010 U.S. App.lexis 16214..............................36

Robinson v. Equifax Info. Servs., LLC,

560 F.3d 235, 242 (4th Cir. 2009)....................31

Rogal v. American Broadcasting

Companies, Inc., 74 F.3d 40, 44

(3d Cir. 1996)................................................15

Sage Prods., Inc. v. Devon Indus.,

Inc., 126 F.3d 1420, 1426 (Fed. Cir. 1997)........30

Schlaifer Nance & Co., Inc. v. Estate of Andy

Warhol, 194 F.3d 323, 338 (2d Cir. 1999)...........15

Singleton v. Wuff, 428 U.S. 106, 120 (1976).........32

Sommers v. Barry (In re Cochener),

297 F. App'x 382, 384 (5th Cir. 2008)...............17

Stalley v. Mountain States Health Alliance,

644 F.3d 349, 352 (6th Cir. 2011)...................18

United States v. Bennett, 698 F.3d 194,

199 4th Cir. 2012).........................................31

United State u. Causby, 328 U.S.

256 (1946) ..................................................34

(xm).

Towerridge, Inc. v. TA. 0., Inc., 111 F.3d 758

766 (10th Cir. 1997)......................................20

Truax v. Corrigan, 257 U.S. 312,

331(1921) ................................................... 28

Trulock v. Freeh, 275 F.

3d 391, 403 (4th Cir. 2001).............................35

United Mine Workers, 330 U.S. at 303,

67 S.Ct. 677..................................................14

United States v. Al-Marri, 230 F.

Supp. 2d 535, 541 (S.D.N.Y. 2002)...................35

United States v. Bennett, 698

F.3d 194, 199 (4th Cir. 2012)...........................29

United States v. Buckner,

473 F.3d 551................................................32

United State v. y, 328 U.S. 256 (1946).................37

United States v. Chadwick,

433 U.S. 1 (1977) ........................ ................... 35

United States v. Heckenkamp,

482 F.3d 1142, 1146 (9th Cir. 2007)................35

United States v. Jones, 132 S.

Ct. 945,963 (2012) ...............................................38

(xiv).

United States v. Lifshitz, 369

F.3d 173, 190 (2d Cir. 2004)............................35

United States v. Shaffer Equipment

Company ,11 F. 3d 450

(4th Cir. 1993)..............................................16

United States v. Wallace, 964

F.2d 1214 (D.C. Cir. 1992).............................19

United Sates v. Watson, 423 U.S. 411

96 S Ct. 820, 46 L. Ed 2d. 598 (1976)................19

Vance v. Bradley, 440 U.S. 93, 94

n.1 (1979) .....................................................28

Wallace v. Dept of the Air Force,

879 F.2d 829, 832

(Fed. Cir. 1989).............................................29

Walker v. Jones, 10 F.3d 1569, 1572

(11th Cir. 1994)............................................32

Weeks v. United States, 232

U. S. 383 (1914)...........................................38

Weinberger v. Wiesenfeld,

420 U.S. 636, 638 n.2 (1975)...........................28

(xv).

OPINIONS BELOW

The Federal Circuit Court of Appeals'

November 13, 2017 opinion has not yet been

published and is reproduced in Appendix A. The

decision of the United States Court of Appeals for

Veterans Claims dated October 12, 2016, is not yet

published and is reproduced in Appendix B.

JURISDICTION

The Federal Circuit entered judgment on

November 13, 2017. The United States Supreme

Court granted Petitioner's application for an

extension of 60 days to file the Petitioner for Writ

Certiorari. The order provided the Petition for Writ

of Certiorari to be filed on April 12, 2018. This

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

CONSTITUTION AND STATURES

PROVISIONS INVOLVED

U.S. Constitution Fourth Amendment

U.S. Constitution Fifth Amendment

Article III, Section 2, Clause 1 of the Constitution

38 USC § 7292

1.

STATEMENT OF THE CASE

The Court Proceedings

On October 11, 2013, Petitioner filed a notice of

appeal with the United States Court of Appeals for

Veterans Claims (Veterans Court), case No. 132986, for a review of the Secretary's final decision

on a service-connected disability claim.

In June 2001, Petitioner submitted to the

Department of Veterans Affairs (VA) a serviceconnected disability claim that VA identified as a

claim for post-traumatic stress disorder (PTSD).

Petitioner discovered on January 5, 2011, that the

VA was alleging to have made a decision on the

claim on January 6, 2010. However, Petitioner did

not receive the decision. From January 6, 2011,

through about February 19, 2012, VA received

Petitioner's numerous written certified mail

requests for the January 6, 2010 decision. VA

failed and refused to respond to the requests.

Petitioner finally received the January 6, 2010

decision in the mail on March 6, 2012. With that

decision, Petitioner received a notice of the right to,

within 120 days, appeal the decision to the

Veterans Court or Me motions with VA's Board of

Veterans Appeal (Board).

On April 12, 2012, Petitioner submitted to the

Board a document consisting of one motion to

vacate on the grounds of clear and unmistakable

error and violation of Constitutional rights and one

2.

motion to revise on the grounds of clear and

unmistakable error and violation of Constitutional

rights.

The Board denied receiving the motions on

April 12, 2012. The motions were submitted to the

Board again on July 6, 2012. When the U.S. Postal

Service delivered the motions to the Board on April

12th and again on July 6th, by overnight express

mail, VA signed for both acknowledging receipt.

In the Board October 4, 2012 letter, it denied

the Constitutional violation part of the motion to

vacate. In the Board's October 11, 2012 letter, it

discussed the motion to revise that VA received on

July 6th. The Board continued denying receiving the

timely motion to vacate on April 12, 2012, that

extended the right to appeal to the Veterans Court.

After VA sent documents alleging that the

PTSD claim was a claim under 38 USC 1151,

Petitioner filed a Notice of Appeal with the

Veterans Court for the claim. On December 9, 2013,

Respondent moved to dismiss and to stay the

Court's order to provide Petitioner the record. From

December 9, 2013, to March 12, 2014, in support of

the motion to dismiss, Respondent alleged that the

Board mailed to Petitioner the final decision on

January 6, 2010, and therefore, the notice of appeal

filed on October 11, 2013, was untimely. In

opposition, Petitioner asserted that no decision was

mailed to her on January 6, 2010, that VA withheld

the decision from her from January 6, 2010 to

3.

March 6, 2012, and that VA continued withholding

the decision while receiving Petitioner's numerous

written requests for the decision from January 6,

2011, to February 2012.

In March 2014, Respondent reported to the

Court that the January 6, 2010 decision was mailed

to an incorrect address in January 2010 and that

because Petitioner received the decision on March

6, 2012, but filed notice of appeal on October 11,

2012, and that the motion to revise can only be

reviewed after this case is disposed, a dismissal is

warranted. Petitioner responded by stating and

evidencing that the Board received her timely

motion to vacate on April 11, 2012, that was

separate from the motion to revise, and that the

motion to vacate extended the time for filing the

notice of appeal.

In response, the Respondent alleged that the

Board had issued a decision on October 4, 2012, on

the Constitutional violation part of the April 12,

2012 motion and because a notice of appeal for that

partial decision was due in February 2013, the

notice of appeal was untimely filed on October 11,

2012, and because the motion to revise can only be

reviewed after the case is disposed, a dismissal was

warranted. In response, Petitioner asserted, inter

alia, that she was not required to file a notice of

appeal on the partial decision made on the one

motion to vacate and the one PTSD claim when the

Board had not issued a decision on all parts of the

April 2012 motion to vacate. Petitioner asserted

that the Federal Courts do not accept piecemeal

litigation. The Veterans Court disagreed.

On August 28, 2014, the Veterans Court

issued its order ruling that Petitioner had timely

filed with the Board on April 12, 2012, a motion to

vacate but the Court dismissed the case on two

separate grounds. First, the Court determined that

the Board's October 4, 2012 letter was a final

decision on the Constitutional violation part of the

April 12, 2012 motion to vacate and therefore, the

time for, filing a notice of appeal for that part of the

motion to vacate expired in February 2013.

Second, the Court determined that the Board had

not yet made a decision on the substantive parts of

the same April 12, 2012 motion to vacate and

therefore, that present appeal was premature. The

court ruled that upon the Board issuing a final

decision on the substantive parts of the April 12,

2012 motion to vacate, Petitioner has the right to

appeal that decision to that Court within 120-days.

Petitioner moved for a panel review. The panel

ruled that the single-judge memorandum decision

remains the decision of the Court. On March 6,

2015, judgment was entered and on June 5, 2015,

Petitioner filed Notice of Appeal to the Federal

Circuit. No decision was made on Petitioner's

March 2014 motion for sanction.

The Motion for Sanction

After Petitioner filed the Notice of Appeal with

the Veterans Court on October 11, 2013, govern-

5.

ment attorneys began deleting from her computer,

trial work product, research information, saved

typed briefs and began deleting her typing as she

typed briefs for court. The attorneys also began

opening documents of harassment, threats and

intimidation on her computer. During the end of

December 2013 and the first part of January 2014,

the attorneys who had access to Petitioner's

computer refused to allow her to type her

opposition to VA's motion to dismiss. They deleted

that which she had typed and saved and when she

attempted to retype the opposition, they deleted

every word that she typed as she typed. Petitioner

had to handwrite her opposition to the motion to

dismiss with a painful, disfigured and deformed

right hand.

On January 16, 2014, Petitioner submitted to

the United States Department of Justice a

document in which she alleged the unlawful acts

committed on her computer. In that document, an

administrative claim for damages, Petitioner stated

that she did not know the agency of the

government attorneys but she knew that the

perpetrators were of the Federal Government and

were attorneys because on her computer they

created messages and opened documents from

other court cases to dispute the legal issues that

she typed on her computer.'

1

In civil action 5:09-CV-235, on April 29, 2010, petitioner

filed a motion for a protection order alleging that the DOJ

attorneys had an army of DEA officers to come to petitioner's

.n

In a letter dated February 4, 2014, the United

States Department of Justice informed Petitioner

that the claim involved the Department of Veterans

Affairs (VA attorneys) and that the claim was sent

to VA. VA accepted the claim. Petitioner asserted

that the February 4, 2014 letter and the VA

accepting the claims as both VA and the U.S.

Department of Justice identifying and evidencing

the perpetrators to be VA attorneys. The acts

committed on and through Petitioner's computer

continued, prevented her from typing on her

computer documents to be filed with the court in

this case and there was no way she could stop the

acts. On March 4, 2014, Petitioner filed in the

Veterans Court a motion for compensatory sanction

in the amount of 2 million dollars for the bad faith

vexatious, wanton, and oppressive acts that were

crimes and violations of Constitutional rights

committed to force Petitioner to abandon the case

and to prevent her from testifying in court. The

Respondent and VA failed and refused to file a

response to the motion for sanction. They did not

home to force entry and to abuse her as federal officers

inflicted upon Mr. Bivens in the case of Bivens v. Six

Unknown Named Agents, 403 U.S. 388 (1971). Magistrate

Jones issued on March 24, 2010, a recommendation that

petitioner's Privacy Act claims against the government

agency were sufficient claims that could not be dismissed. On

April 21th, the DOJ filed document stating that some unknown Magistrate determined the claims were insufficient

Bivens claims that should be dismissed. (Note: The VA

attorneys still have access and control over petitioner's

computer and may have her printer to print their version of

this Petition that consists of the defects that they created.)

7.

deny that the perpetrators were of the VA.

VA attorneys continued committing the acts

on the computer during all litigation in the courts.

The U.S. Department of Justice's letter dated

February 4, 2014, is replicated at Appendix D and

was filed with both the Veterans Court and the

Federal Circuit.

The Two Appeals to the Federal Circuit

Without the Veterans Court's decision made

on the motion for sanction, Petitioner appealed to

the Federal Circuit. On appeal, Petitioner asserted

that she was not required to file a notice of appeal

on the Board's October 4, 2012 decision made on

the Constitutional part of the April 2012 motion to

vacate because the Board still had the substantive

matters to decide in the motion to vacate and that

piecemeal litigation is prohibited in the federal

courts. In its December 14, 2015 opinion, in case

No. 2015-7096, the Federal Circuit agreed with

Petitioner and rule that the Board's October 4,

2012 decision was not a final decision within 38

U.S.C. § 7266 on the PTSD claim because the

Board had not issued a decision on the substantive

part of the April 12, 2012 motion to vacate. The

Federal Circuit dismissed the appeal because the

appeal was deemed premature. Petitioner's appeal

included the motion for sanction. The Federal

Circuit ruled that it lacked jurisdiction over the

motion for sanction.

In June 2016, the Veterans Court's Clerk

denied Petitioners request to reopen the case for a

decision on the motion for sanction on the grounds

that she had not filed a Petition for a Writ of

Certiorari. On August 5, 2016, the Veterans Court

received Petitioner's motion to reopen the case,

motion for Judge Davis to issue a decision on the

motion for sanction and two additional motions.

The single judge's decision denying the motion for

sanction was issued on October 12, 2016. On

February 7, 2017, Petitioner's September 21, 2016

motion for panel review was denied. On March 29,

2017, Petitioner filed Notice of Appeal.

In the Federal Circuit, case No. 17-2041,

Petitioner filed her brief asserting violations of

Constitutional rights. Respondent filed brief

asserting that 38 USC 7292(d)(2) prohibits the

Federal Circuit's jurisdiction to review because the

request for sanction and the Veterans Court's

decision that the evidence was not sufficient were

factual determinations that could not be reviewed

pursuant to 38 USC 7292(d)(2). On November 13,

2017, the Federal Circuit dismiss the appeal ruling

that 38 USC 7292(d)(2) prohibits the Federal

Circuit's jurisdiction to review because the request

for sanction and the Veterans Court's decision that

the record (evidence) were factual determinations

that could not be reviewed pursuant to 38 USC

7292(d)(2).

Reasons for Granting the Petition

I. The Federal Circuit's Decision

Departed From This Court And Other

Federal Court of Appeals By Ruling

That 38 USC 7292 Prohibits Its

Review Of The Court's Inherent

Power to Sanction

A. The Federal Circuit Departed from

this Court's Decision and Provisions

Created in Chambers for Sanctions

Invoking Federal Courts' Inherent

Power

In Chambers v. Nasco, Inc., 501 U.S. 32 (1991),

this Court established four important provisions for

Federal Courts' inherent power to impose sanction.

First, all federal courts possess the inherent power

to impose sanction for bad faith litigation conduct.

Second, Federal courts' inherent power to impose

sanction include the ability to fashion an

appropriate sanction for conduct, which may range

from dismissal of a lawsuit to an assessment of

attorney's fees. Third, the Federal courts' inherent

power is not limited by rule or statute and the

courts may safely rely on its inherent power if, in

its informed discretion, neither the statutes nor the

rules are up to the task. And fourth, an appellate

review is subject to review only under the abuse-ofdiscretion standard pursuant to the court's

inherent power. This Court upheld these provisions

in its recent decision in Goodyear Tire & Rubber

10.

Co. 6Haeger, 581U.S.

___

(2017).

-

-

The Federal Circuit's decision departed from

this Court's holding and provisions established in

Chambers by dismissing the appeal without a

review on the grounds that 38 U.S.C.7292(d)(2)

prohibits its jurisdiction to review because (1) the

request for sanction is factual; (2) the Veterans

Court's determination made on the supporting

evidence is factual; and (3) although §7292(d)(2)

explicitly requires the Federal Circuit's review and

jurisdiction over constitutional issues, the

violations of the Fourth and Fifth Amendments of

the United States Constitution alleged in the

motion for sanction—the unlawful search and

seizures, invasion of privacy, taking typing and

trial work product from computer, deleting typing

for court briefs while typing, and denying the right

to use the computer, to type for court and to testify

in court—are not unconstitutional under §

7292(d)(2).

In other words, the Federal Circuit ruled that

7292(d)(2)

displaces the Federal Courts' inherent

§

power or that the inherent power does not exist.

The Federal Circuit failed to explain the reason it

could not have reviewed the appeal under the

Court's inherent power as this Court and all twelve

Federal Court of Appeals. The Veterans Court does

not have a Rule 11 and neither Rule 11 nor 28 USC

1927 was applicable in this case. As evidenced by

the Veterans Court's orders, the Veterans Court

has ruled that it possesses the inherent power to

11.

impose sanctions.

Nothing within 38 U.S.C.§ 7292 refers to the

court's inherent power, the inherent power to

impose sanctions, sanctions, or displaces this

Court's holding in Chambers. Courts must presume

that a legislature says in a statute what it means

and means in a statute what it says there. See

Connecticut Nat'l Bank v. Germain, 503 U.S. 249,

253-254 (1992).

Neither 38 USC § 7292 nor any other statute or

rule can displace the Constitution of the United

States or convert it or its Fourth and Fifth

Amendments into not being the Constitution of the

United States and into not being Amendments. The

Constitution of the United States is the

Constitution of the United States in every federal

and state court in the United States and in every

federal and state statute. Even if § 7292(d)(2) had

exempted or displaced this Court's holding and

standard of review created in Chambers, the fact

that § 7292(d)(2) explicitly required the Federal

Circuit's review over Constitutional issues

evidences that the Federal Circuit was required to

review the appeal because the appeal was based on

Constitutional issues. The Federal Circuit did not

explain how Constitutional issues are not

Constitutional issues under that § 7292(d)(2).

38 U.S.C. 7292(d)(2) was created to pertain to

the Veterans Court's subject matter jurisdiction

and not to the Court's inherent power. Until the

12.

United States Court of Appeals for Veterans

Claims was established in 1988, the Nation's

veterans had no court of law where they might

appeal the VA's decisions on veterans' benefits.

VA's Board of Veterans' Appeals (Board or BVA)

provided the final decision on a veteran's claim. A

veteran whose claim VA denied was therefore

afforded no independent review of VA decisions and

veteran was therefore denied the right to go to

court to challenge the decision of an administrative

agency, a right afforded to other citizens

challenging decisions of other administrative

agencies. On November 19, 1988,. upon veterans

and their advocates' requests for judicial review,

Congress enacted the Veterans' Judicial Review Act

(VJRA), Pub.L. No. 100-687, 102 Stat. 4105, under

Article I of the U.S. Constitution that created the

new veterans court, the United States Court of

Veterans Appeals. On March 1, 1999, the Veterans'

Programs Enhancement Act of 1998 changed the

Court's name to the name it now bears, the U.S.

Court of Appeals for Veterans Claims.

The Veterans Court is an independent

Article I tribunal with "exclusive jurisdiction" to

review issues within the VJRA that includes

decisions of the Secretary, laws governing the VA,

legal and factual issues, and constitutional issues

and claims. 38 U.S.C. 7251, 7252(a), 7261(a)(1).

38 U.S.C. §7292 provides the Federal Circuit,

an Article III court, jurisdiction to review the decisions of the Veterans Court. 38 U.S.C. § 7292(d)

13.

(2), provides that "except to the extent that an

appeal under this chapter presents a constitutional

issue, the Court of Appeals may not review (A) a

challenge to a factual determination, or (B) a

challenge to a law or regulation as applied to the

facts of a particular case." 38 U.S.C. § 7292(d)(1)

provides the Federal Circuit "shall decide all

relevant questions of law, including interpreting

constitutional and statutory provisions." Nothing

within 38 U.S.C. § 7292 or the VJBA limits the

Court's inherent power or the Federal Circuit's

review of the Veterans' Court's use of its inherent

power. See Chambers v. Nasco, Inc., 501 U.S. 32

(1991), A court cannot escape its constitutional

obligations by the simple device of denying

jurisdiction in such cases of Courts otherwise

competent. See Kenney v. Supreme Lodge, 252 S.

411, 252 U.S. 415.

B. The Federal Circuit's Decision

Conflicts With the Decisions of

All Twelve Other Federal Court of

Appeals

The Federal Circuit's decision conflicts with

the decisions of all twelve other Federal Court of

Appeals by ruling that 38 USC § 7292(d)(2)

prohibits its jurisdiction to review the Veterans

Court's decision on a motion for sanction that

invoked the Court's inherent power to impose

sanction. If a federal statute did not stop the

Veterans Court's review of a motion for sanction

that invoked the Court's inherent power, the Feder-

14.

al Circuit is required to review under the court's

inherent power. All twelve other Federal Court of

Appeals not only reviewed a decision issued by the

lower court but reviewed under the lower's court's

inherent power under the abuse of discretion

standard.

First Circuit

In Goya Foods, Inc. v. Wallace Management Co.

et al., 344 F.3d 16(18t Cir 2003), the First Circuit

affirmed the District Court using its inherent

power and the provisions established in Chambers

to impose monetary sanction against the defendant

in the amount of about $6,000,000. The Court

stated, "We review a trial court's decision as to the

amount of a monetary sanction only for abuse of

discretion. Chambers v. NASCO, Inc., 501 U.S. 32,

55, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991)." The

Court further stated that sanctions stem, in part,

from a need to regulate conduct during litigation,

Chambers, 501 U.S. at 53, 111 S.Ct. 2123, and

deterrence may be considered in fixing the amount

of a monetary sanction. See United States v. United

Mine Workers, 330 U.S. at 303, 67 S.Ct. 677, 91

L.Ed. 884 (1947). Jones v. Winnepesaukee Realty,

990 F.2d at 6 (1st Cir. 1993).

In Jones v. Winnepesaukee Realty, 990 F.2d 1,

6 (1st Cir. 1993), while using the provisions and the

abuse of discretion standard of review for sanctions

that invoked the Court's inherent power in

Chambers, the First Circuit granted attorney fees

for misconduct that included the plaintiffs repeat-

15.

ed failure to attend hearings. The Court stated,

"Because we find that the court had inherent

power to award counsel fees, see supra, we need not

reach the question of whether, in this diversity

case, New Hampshire law also allowed for feeshifting. See Chambers,

U.S. at ---- - ---- 111

S.Ct. at 2136-38 (explaining that fee-shifting under

a federal court's inherent power to redress bad faith

conduct is a matter of vindicating judicial

authority, not a matter of substantive remedy, and

is, therefore, permissible in a diversity case

whether or not authorized by state law)."

---

,

Second Circuit

In Perry v. Ethan Allen, Inc., 115 F.3d 143,

154 (2d Cir. 1997), in reviewing the District Court's

decision denying a motion for sanction filed

pursuant to Rule 11, the court's inherent power,

and 28 U.S.C. § 1927, the Second Circuit's used the

abuse of discretion standard of review and

Chambers' provisions for a review under the

Court's inherent power.

The Second Circuit in Schlaifer Nance & Co.,

Inc. v. Estate of Andy Warhol, 194 F.3d 323, 338 (2d

Cir. 1999) also used the provisions in Chambers for

the review under court's inherent power.

Third Circuit

In Rogal v. American Broadcasting

Companies, Inc., 74 F.3d 40, 44 (3d Cir. 1996), the

Third Circuit ruled that under Chambers, the

District Court had "the inherent power to impose

16.

sanctions upon parties and their attorneys where

they engage in bad faith conduct which abuses the

judicial process" and that Chambers required a

determination that the party "acted in bad faith,

vexatiously, wantonly, or for oppressive reasons."

501 U.S. at 45-46, 111 S.Ct. at 2133.

In Angelico v. Lehigh Valley Hospital Inc., 184

F.3d 268 (3rd Cir. July 1999), the Third Circuit

stated "awarding attorney's fees as a means of

sanctioning a party is within the District Court's

inherent power. See Chambers v. NASCO, Inc., 501

U.S. 32, 45, 111 S.Ct. 2123, 2133 (1991)." It further

stated that the District Court could assess

attorney's fees when a party has acted in bad faith.

Id.

Fourth Circuit

In United States v. Shaffer Equipment

Company, 11 F. 3d 450 (4th Cir. 1993), the Fourth

Circuit remanded the District Court's dismissal of

the action as a sanction under its inherent power

and award of the defendant's attorney's fees

incurred for the Government's fraud on the court.

While using Chambers, the Fourth Circuit held

that neither Rule 11 nor 28 USC 1927 reflect a

legislative intent to displace a court's power to

vacate a judgment upon proof that a fraud has been

perpetrate upon the court.

In Projects Mgmt. Co. v. DynCorp Intl LLC,

734 F.3d 366 (4th Cir. 2013), while using United

States v. Shaffer Equipment Company, 11 F. 3d 450

17.

(4th Cir. 1993) as controlling, the Fourth Circuit

upheld the District Court's dismissal of the case as

a sanction.

Fifth Circuit

In City of Alexandria v. CLECO Corp., 547 F.

Apex 568, 569 (5th. Cir. 2013), ruling that the

power to sanction an attorney for misconduct is

inherent in the federal courts, Chambers v.

NASCO, Inc., 501 U.S. 32, 50 (1991), but the courts

must exercise this inherent power with "restraint

and discretion. Id. at 44.

In Carroll v. Jacques Admiralty Law Firm,

110 F.3d 293 (5th Cir. 1997), the Court recognized

the exercise of inherent power when rules are not

"up to task. See, e.g., Natural Gas Pipeline Co. v.

Energy Gathering, Inc., 2 F.3d 1397, 1410-11 (5th

Cir. 1993) (permitting exercise of inherent powers

to discipline counsel's complicity with scandalous

behavior). The Court upheld monetary sanction

against the attorney stating that "when a party's

deplorable conduct is not effectively sanctionable

pursuant to an existing rule or statute, it is

appropriate for a district court to rely on its

inherent power to impose sanctions. See Chambers,

501 U.S. at 50, 111 S.Ct. at 2135-36; Natural Gas

Pipeline Co., 2 F.3d at 1406."

In Sommers v. Barry (In re Cochener), 297 F.

App'x 382, 384 (5th Cir. 2008) (per curiam), the

Fifth Circuit granted sanction under the

Bankruptcy's inherent powers pursuant to 11

no

U.S.C. § 105 and under 28 U.S.C. § 1927 and

emphasized the importance of "enforcing the

integrity of the process by policing the accuracy of

debtors' schedules and representations to the

court."

Sixth Circuit

In First Bank of Marietta v. Hartford

Underwriters, 307 F.3d 501, 519 (6th Cir. 2002),

the Sixth Circuit affirmed the District Court's

award of sanction under the Court's inherent power

established in Chambers.

In Stalley v. Mountain States Health

Alliance, 644 F.3d 349, 352 (6th Cir. 2011), the

Sixth Circuit upheld monetary sanction against the

plaintiff and his legal counsel under the Court's

inherent power pursuant to Chambers.

Seventh Circuit

In Dotson v. Bravo, 321 F.3d 663, 667 (7th

Cir.

2003), using provisions that this Court

established in Chambers, the Seven Circuit

affirmed the District Court's dismissal of a case

using its inherent power to rectify abuses to the

judicial process.

In Beeson v. Smith, 893 F.2d 930, 931 (7th

Cir. 1990), using provisions that would be establish

in Chambers 18 months later, the Seven Circuit

acknowledged the District Court's inherent power

to dismiss but reversed.

19.

Eight Circuit

In Harlan v. Lewis, 982 F.2d 1255, 1261 (8th

Cir. 1992), the Eight •Circuit affirmed money

sanction pursuant to Chambers against the defense

counsel for impermissible ex parte contacts.

While referencing to Chambers, the Eight

Circuit in Pope v. Fed. Express Corp., 974 F.2d 982,

984 (8th Cir. 1992) affirmed a dismissal noting that

where "a litigant's conduct abuses the judicial

process

dismissal of [her] lawsuit [is] a remedy

within the inherent power of the court."

....

Ninth Circuit

In the bankruptcy case of In Re Lehtinen, 564

F.3d 1052 (9th Cir. 2009), using the provisions

established in Chambers, the Ninth Circuit ruled

that the bankruptcy court, an Article I court,

possesses the inherent authority "to impose

sanctions for a pattern of bad faith conduct that

transcends conduct addressed by particular rules or

statutes." Chambers v. NASCO, Inc., 501 U.S. 32,

51, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991).

In F.J. Hanshaw Enters., Inc. v. Emerald

River Dev., Inc., 244 F.3d 1128, 1136 (9th Cir.

2001), using the provisions established

in Chambers, the Ninth Circuit Court stated that

all federal courts are vested with inherent powers

enabling them to manage their cases and

courtrooms effectively and to ensure obedience to

their orders.., as a function of this power, courts can

dismiss cases in their entirety, bar witnesses,

20.

award attorney fees and assess fines. The Court

affirmed a $200,000 monetary compensatory

sanction for bribery while vacating the $500,000

fine for lack of procedural protections.

Tenth Circuit

In Towerridge, Inc. v. T.A.O., Inc., 111 F.3d

758, 766 (10th Cir. 1997), the Tenth Circuit affirm

the District's inherent power to sanction but reversed on other grounds.

Eleventh Circuit

In Kleiner v. First Nat? Bank, 751 F.2d 1193,

1209-10 (11th Cir. 1985), the Eleventh Circuit

upheld the District Court using its inherent power

to sanction to impose a $50,000 fine on counsel.

Using the provisions in Chambers, the

Eleventh Circuit reverse sanctions imposed under

the Court's inherent power in LlPeer v. Lewis, 606

F.3d 1306, 1314 (11th Cir. 2010), but affirmed

sanctions imposed under 28 USC 1927. The court

stated the inherent power to sanction is broader

still in that it permits sanctions for conduct beyond

the filing of documents or "multiplying"

proceedings. Yet, it requires a finding of bad faith

for an award of attorney fees. Chambers v. NASCO

Incorporated, 501 U.S. 32, 43-46 (1991).

District of Columbia

In United States v. Wallace, 964 F.2d 1214

(D.C. Cir. 1992), the Court reversed a monetary

sanction because a bad-faith finding was clearly

21.

erroneous. Part of the sanction was imposed

pursuant to the provisions established in Chamber

and the other part pursuant to 28 U.S.C. § 1927.

In John Akridge Co. v. Travelers Companies,

944 F. Supp. 33 (D.D.C. 1996), the Court, using the

provisions in Chambers and Wallace, imposed

attorney fees as a sanction for bad faith conduct.

Federal Circuit

In Micron Technology, Inc. v. Rambus Inc., 645

F.3d 1311 (Fed. Cir. 2011), the Federal Circuit

acknowledged the District Court's inherent power

to dismiss the case as a sanction pursuant to

Chambers, but vacated and remanded the

dismissal as a sanction on the grounds that all

required elements were not presented in the

decision to support the dismissal as a sanction.

In Precision Specialty Metals Inc. v. United,

315 F3d 1346 (Fed. Cir 2003), the Federal Circuit

stated that the lower court could have imposed

sanction under its inherent power pursuant to

Chambers and affirmed the lower Court's sanction

under Rule 11.

U.S. Court of Ay)-peals For Veterans Claims

The Veterans Court have ruled that it has the

inherent power to impose sanction using the

provisions established in Chambers. In Gene S.

Groves, v. Robert A. Mcdonald, Vet Court No. 14269, the Veterans Court stated:

22.

"AS this Court stated in Harvey, "this

Court possesses the inherent as well

as the statutory authority to impose

sanctions." Harvey v. Shinseki, 24 Vet.

App. 284, 287 2011); Pousson v Shinseki,

22 Vet. App. 436 (2009).

In Jones v. Derwinski, 1 Vet. App. 596, 606

(1991), the Veterans Court held that it has the

power to sanction those who abuse the judicial

process under the inherent power of the federal

courts. In Perry v. West, 11 Vet. App. 319, 322

(1998) the Veteran Court held that a "finding that

the conduct at issue constituted or was tantamount

to bad faith is a precondition to imposing sanctions

under the Court's inherent power" (quoting Ebert

v. Brown, 4 Vet. App. 434, 437 (1993).

II. The Federal Circuit Issued A Decision

That Denied Equal Protection By

Accepting Waived Arguments For One

But Not For Others

E. The Federal Circuit denied Equal

Protection By Accepting Waived

Arguments

The Secretary and VA failed and refused to

respond to the motion for sanction in the Veterans

Court and had two and one half years to respond.

The assertion was made in the Veterans Court and

in the Federal Circuit that their failure— to

respond to the motion for sanction, to object to the

23.

motion, to deny that the VA attorneys were the

perpetrators, and to deny that the February 4, 2014

letter of the U.S. Department of Justice (DOJ)

identified the VA attorneys as the perpetrators—

constituted an admission. The Federal Circuit's

response was that 38 USC 7292(d)(2) prohibits its

jurisdiction to review the appeal.. However, this

ruling was made after the Respondent's counsel,

• who is of the DOJ, the source of the February 4,

2014 letter filed the brief on August 16, 2017,

arguing that, inter alia, 38 USC § 7292(d)(2) prohibits the Federal Circuit's jurisdiction to review.

Not once in the Veterans Court did the

Respondent allege or assert that any part of Title

38 prohibited any Court's review of the motion for

sanction. If §7292(d)(2) prohibited the Federal

Circuit's review of the Veterans Court's inherent

power, there would have existed a statute under

Title 38 that would have prohibited the Veterans

Court's inherent power.

As evidenced by

there

cant

be

one

without

the other; the

Chambers,

prohibition must exist in both courts.

Because, in the Veterans Court, no argument

was made against the motion for sanction and no

argument was made alleging that any part of Title

38 prohibited any Court's review, the Secretary and

VA had waived all arguments for the Federal

Circuit and the Federal Circuit should not have

considered the Respondent's arguments on appeal.

Charles u. Shinseki, 587 F.3d 1318, 1322 (Fed. Cir.

2009) (finding an argument waived because the

24.

party raised it for the first time on appeal); Mass.

Mut. Life Ins. Co. v. United States, 782 F.3d 1354,

1369 (Fed. Cir. 2015) ("As a general principle,

appellate courts do not consider issues that were

not clearly raised in the proceeding below.").

More important is that nowhere in the

Respondent's brief filed with the Federal Circuit is

there an assertion that VA had not committed the

criminal acts and the violations of Constitution

alleged in the motion for sanction or that the DOJ's

letter did not correctly identify the perpetrators.

The brief instead focused on alleging that no

evidenced existed. In a single sentence the brief

stated that Petitioner alleged incorrectly that the

DOJ's February 2014 letter implied VA had

committed the acts. A litigant does not properly

raise an issue by addressing it in a cursory fashion

with only bare-bones argument. US ex rel. Miller v.

Bill Harbert Int'l Constr., Inc. 608 F. 3d 871 (D.C.

Cir 2010) (quoting Cement Kiln Recycling Coat. v.

EOA, 255 F. 3d 855 (D.C. Cir 2001))). The

Respondent's brief failed to state the reason the

letter existed if not to identify the VA as the

perpetrators, the reason VA accepted the

administrative claim, or the reason the DOJ sent

the claim to VA if VA were not the perpetrators.

The one sentence statement did not deny anything.

The statement was directed to an implication and

suggestion that have no legal value and that does

not exist in the Court's case file. Petitioner has

never stated that the letter implied. Instead, she

stated as a fact that the letter identified the VA

25.

attorneys as the perpetrators.

By explicitly

responding to an implication that does not exist

and not responding to the fact that does exist, the

brief evidenced the author's intent to ensure

protection from an allegation of fraud and also

evidenced the correctness of the fact—that VA is

the perpetrators. Thus, the Respondent's single

sentence (1) is nothing more than a barebone

conjecture that can't be used to oppose another

party's request to the Court, Lipton v. Nature Co.,

71 F.3d 464, 469 (2d Cir. 1995), and (2) evidenced

that the letter identified the VA employees as the

perpetrators.

As a result, the Respondent's brief evidenced

no special reason exists for the Federal Circuit

deviating from its firmly held rule that arguments

raised for the first time on appeal are waived and

are not considered.

In all other cases reviewed by the Federal

Circuit, it firmly adhered to its rule of practice that

an argument or issue not presented in the lower

court is waived and will not be considered on

appeal as evidenced below.

In Melvin v. Shulkin,

F. App'x

2017

WL 3526629, at *2_3 (Fed. Cir. 2017) (per curiam),

another appeal involving a sanction filed by

Petitioner, she alleged that, to prevent her from

litigating in the Federal District Court VA's refusal

to provide medical benefits since 2010, the VA

attorneys filed case No. 16-1015 in the Veterans

,

26.

Court in Petitioner's name without her consent and

knowledge for the purpose of litigating in the

Veterans Court VA's medical benefits. In case No.

15-4551, that Petitioner filed herself in the

Veterans Court in November 2015, the Veteran

Court ruled on February 2, 2016, that it lacked

jurisdiction to compel the Respondent to provide

the withheld medical benefits including the medical

benefits that are provided with a granted disability

claim. The Respondent and VA failed and refused

to litigate the medical benefits in case No. 15-4551.

On February 12, 2016, Petitioner filed a case

in the Federal District Court regarding the VA's

medical benefits. The VA attorneys filed case No.

16-1015 in the Veterans Court in Petitioner's name

to prevent her from serving the summonses and

litigating the medical benefits in the District Court.

The Veterans Court refused to dismiss case No. 161015 upon Petitioner's request that it be dismiss

and her assertion that she did not file the case.

The Veteran Court dismissed the case only after

the VA attorneys litigated the medical benefits. The

Veterans Court alleged it used Petitioner's personal

check to file the case. Petitioner asserted it had no

check and that VA attorneys paid the filing fee. The

Federal Circuit alleged that the Veterans Court

used Petitioner's personal check that it found while

Petition was in North Carolina and has not visited

Washington, DC, since 2014.

In case No. 16-1015 in the Veterans Court, in

Petitioner's supplemental motion for sanction,

27.

motion for panel review and motion for en bac filed

with the Veterans Court in 2016 and in her briefs

filed with the Federal Circuit in 2017, she alleged

that the VA attorneys filing the case in her name

without her consent and knowledge violated her

Constitutional rights. However, she did not allege

Constitutional violations in the March 2014 motion

for sanction and because she did not, in the Federal

Circuit's August 17, 2017 opinion, it ruled that the

Constitutional violations arguments had been

waived and were not considered. The Court stated:

Although Melvin attempts to frame her

appeal as one involving the Fifth Amendment, Melvin constitutional issues under

never raised any constitutional challenges

in her sanctions filed with the Veterans

motion for Court, see Suppi. App. 44-53,

and thus has waived her constitutional

arguments. See, e.g., Charles v. Shinseki,

587, F.3d 1318, 1322 (Fed. Cir. 2009)

(finding an argument waived because the

party raised it for the first time on appeal).

Because Melvin's appeal raises factual

questions and she has waived any potential

constitutional arguments, we lack jurisdiction to consider this portion of Melvin's

appeal.

However, in this instant case, the Federal

Circuit accepted arguments made in the

Respondent's August 2017 brief when no argument

and no response to the motion for sanction was filed

p4J

with the Veteran's Court. The Federal Circuit

demonstrated its failure and refusal to provide

equal protection. This Supreme Court has been

clear that "the Due Process Clause of the Fifth

Amendment forbids the Federal Government to

deny equal protection of the laws." Vance v.

Bradley, 440 U.S. 93, 94 n.1 (1979); see also

Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2

(1975) ("The Court's approach to Fifth Amendment

equal protection claims has always been precisely

the same as to equal protection claims under the

Fourteenth Amendment."). Our whole system of

law is predicated on the general, fundamental

principle of equality of application of the law." See

Truax v. Corrigan, 257 U.S. 312, 331 (1921). See

also Hirabayashi v. United States, 320 U.S. 81, 100

(1943).

In Goodyear Tire & Rubber Co. v. Haeger et al.

(2017), the Respondent asserted that

581 u. S.

Goodyear had waived the argument at issue in that

appeal but the Ninth Circuit did not address that

issue. This U.S. Supreme Court decline to decide it

in the first instance. See Cutter v. Wilkinson, 544

U. S. 709, 718, n. 7 (2005) ("[W]e are a court of

review, not of first view"). This Court stated that

the possibility of waiver should therefore be the

initial order of business below and that if a waiver

is found, that is the end of this case.

The Respondent's lack of a response in the

Veterans Court and the lack of assertions that VA

employees were not the perpetrators, warrant the

29.

finding of a waiver, a sanction and the end of this

case pursuant to this Court's ruling in Goodyear

Tire & Rubber Co. v. Haeger.

The Federal Circuit also refused to consider

Google's waived arguments in the case of Google

Inc. v. SimpleAir, Inc., No. 2016-1901, slip op. (Fed.

Cir. Mar. 28, 2017). In that case, the Federal

Circuit found Google had waived its opportunity to

assert its claim construction argument on appeal

because it failed to present the argument before

the trial court and thus, failed to place PTAB on

sufficient notice of the alleged claim construction

dispute during the inter partes review ("IPR")

proceedings. The Federal Circuit ruled that

Google's failure warranted a finding of waiver and

it affirmed the lower court's judgment in

SimpleAir's favor. Using as a supporting citation,

the Federal Circuit stated:

See MCM Portfolio LLC v. Hewlett- Packard

Co., 812 F.3d 1284, 1294 n.3 (Fed. Cir. 2015)

("MCM candidly admits that it only raised

this argument in a few scattered sentences

at the oral hearing below. We have found

that 'if a party fails to raise an argument

before the trial court, or presents only a

skeletal or undeveloped argument to the trial

court, we may deem that argument waived

on appeal. We deem MCM's argument

waived." (quoting Fresenius USA, Inc. v.

Baxter Intl, Inc., 582 F.3d 1288, 1296 (Fed.

Cir. 2009))); Wallace v. Dept of the Air Force,

30.

879 F.2d 829, 832 (Fed. Cir. 1989)...

F. The Federal Circuit Do Not Deviate

From Its Rule That Arguments Made

For The First Time on Appeal Are

Waived And Are Not Considered

The Federal Circuit strictly adheres to its rule

of practice that an argument presented for the first

time on a appeal is waived and will not be

considered. Petro-Hunt, L.L.C. v. US 862 F.3d 1370

(Fed. Cir. 2017). In Golden Bridge Technology,

Inc. v. Nokia, Inc., No. 07-1215 (Fed. Cir. May 21,

2008), the Federal Circuit affirmed the district

court's grant of SJ of invalidity, holding that a

party could not present a new argument on appeal.

In Monsanto Co. v. Scruggs, 459 F.3d 1328, 1341

(Fed. Cir. 2006), the Federal Circuit stated that

Scruggs failed to develop its arguments and

attempted to make arguments by incorporation in

its brief. The Court stated that the arguments are

therefore deemed waived. Fresenius USA, Inc. v.

Baxter Intl., Inc., 92 U.S.P.Q.2d 1163, 1169 (Fed.

Cir. 2009) ("If a party fails to raise an argument

before the trial court, or presents only a skeletal or

undeveloped argument to the trial court, we may

deem that argument waived on appeal, and we do

so here."); Mass. Mut. Life Ins. Co. v. United States,

782 F.3d 1354, 1369 (Fed. Cir. 2015) ("As a general

principle, appellate courts do not consider issues

that were not clearly raised in the proceeding; Sage

Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420,

1426 (Fed. Cir. 1997) ("In short, this court does not

31.

'review' that which was not presented to the district

court.").

G. Other Federal Court of Appeals

Practice the Rule that Arguments not

presented below are deemed waived

and are not considered on appeal

There are a several other Federal Court

Appeals that also adhere to this rule of practice

that arguments not presented below are waived

and not considered on appeal.

Second Circuit: In the case of In Re: Fiorano

Tile Imports, Inc., 14-3915 (2d Cir. 2015), the

Court, while holding that arguments not raised in

the EDNY could not be raised on appeal, stated

that that I]t is a well-established general rule that

an appellate court will not consider an issue raised

for the first time on appeal." Askins v. Doe No. 1,

727 F.3d 16

248, 252 (2d Cir. 2013) (internal

quotation marks omitted).

Fourth Circuit: Agra, Gill & Inc. v. Benson, 920

F.2d 1173, 1176 (4th Cir. 1990) ("We will not accept

on appeal theories that were not raised in the

district court except under unusual

circumstances."); Robinson v. Equifax Info. Servs.,

LLC, 560 F.3d 235, 242 (4th Cir. 2009); United

States v. Bennett, 698 F.3d 194, 199 (4th Cir. 2012)

(finding defendant waived argument where his

argument below was "too general to alert the

district court to the specific [objection]").

32.

Fifth Circuits: Payne v. McLemore's Wholesale &

Retail Stores, 654 F.2d 1130, 1146 (5th Cir. 1981)

(court would not hear new issue because "further

factual development would be essential for a proper

resolution of this issue), cert. denied, 455 U.S. 1000

(1982).

Ninth Circuits: Evans v. Valley W. Shopping

Center, 567 F.2d 358, 361 (9th Cir. 1978) (per

cunam) (no reason to consider issues not raised

below); Bolker v. Commissioner, 760 F.2d 1039,

1042 (9th Cir. 1985) (court decline to hear new

issue because "[a]pplication of the step transaction

doctrine requires a detailed factual inquiry

and

there may be facts relevant to the issue which were

not developed in the record").

...

Eleventh Circuit: Walker v. Jones, 10 F.3d 1569,

1572 (11th Cir. 1994) ("[A]n issue not raised in the

district court and raised for the first time in an

appeal will not be considered by this court."

(quoting Depree v. Thomas, 946 F.2d 784, 793 (11th

Cir. 1991))).

H. This Court Has Upheld the General

Rule That Issues Not Presented Below

are Waived

This Court has also adhered to the rule of

practice that issues not presented below are

waived. In Singleton v. Wuff, 428 U.S. 106, 120

(1976), this Court stated, "It is the general rule, of

course, that a federal appellate court does not con-

33.

sider an issue not passed upon below."). In

Kontrick v. Ryan, 540 U.S. 443, 456 (2004), this

Court stated, "[A] claim processing rule. can

be forfeited if the party asserting the rule waits too

long to raise the point."). And in Nelson v. Adams

USA, Inc., 529 U.S. 460, 469 (2000), this Court

stated, "[T]he general rule that issues must be

raised in lower courts in order to be preserved as

potential grounds of decision in higher courts

requires that the lower court be fairly put on notice

as to the substance of the issue."

.

.

Thus, the Respondent's lack of a response in

the Veterans Court warrant the finding of a waiver,

a sanction and the end of this case. See Goodyear

Tire & Rubber Co. v. Haeger et al. 581 u. S.

(2017).

III. The Bad Faith Litigating Acts Alleged

in the Motion for Sanction Are

Constitutional Issues Reviewable

by the Federal Circuit

Because 38 USC §7292(d)(2) explicitly

provides the Federal Circuit jurisdiction to review

Constitutional issues, all Federal Courts have

jurisdiction over Constitutional issues, all Federal

Courts have jurisdiction to review a decisions

issued by the lower court's inherent power, and

because the Constitution remains the Constitution

in any setting, court case or statute, the Federal

Circuit's ruling that the Constitutional issues

within the motion for sanction are not Constitution-

34.

al issues within §7292(d)(2) is incorrect. Where a

particular Amendment provides an explicit textual

source of constitutional protection against a

particular sort of government behavior, 'that

must be the guide for analyzing

Amendment,

these claims. (Albright v. Oliver (1994) 510 U.S.

266, 273 (plur. opn.), quoting Graham v. Connor

(1989) 490 U.S. 386, 395; Gray v. Netherland (1996)

518 U.S. 152, 162-163.). The Constitution, and not

§7292(d)(2), determines what Constitutional issues

are and §7292(d)(2) has not stipulated a prohibition

on any particular part or violation of the

When a statute is clear and

Constitution.

unambiguous, the courts must apply its terms as

written instead of varying its terms. See Baber v.

Hospital Corporation of America, 977 F.2d 872,878

(4th Cir. 1992); see also. Staples v. United States,

114 S. Ct. 1793, 1797 (1994).

.

.

.

The Fourth Amendment of the Constitution

of the United States provides that the right of the

people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and

seizures, shall not be violated, and no warrants

shall issue, but upon probable cause, supported by

oath or affirmation, and particularly describing the

place to be searched, and the persons or things to

be seized.

A "search" occurs for purposes of the Fourth

Amendment when the Government violates a

person's "reasonable expectation of privacy." Katz v.

United States, 389 U.S. 347 (1967). There is a rea-

35.

sonable expectation of privacy inside a computer.

Thus, access to a personal computer is a clear

violation of federal criminal laws, including, but not

limited to, 18 Usc 2511, 2500, 1030, 2071, 1512(b),

(c) and (d) and 241, and the Fourth Amendment.

See United States v. Heckenkamp, 482 F.3d 1142,

1146 (9th Cir. 2007) (finding reasonable

expectation of privacy in a personal computer);

United States v. Buckner, 473 F.3d 551, 554 n.2

(4th Cir. 2007) (same); United States v. Lifshitz,

369 F.3d 173, 190 (2d Cir. 2004) ("Individuals

generally possess a reasonable expectation of

privacy in their home computers."); Trulock v.

Freeh, 275 F.3d 391, 403 (4th Cir. 2001); United

States v. Al-Marri, 230 F. Supp. 2d 535, 541

(S.D.N.Y. 2002) ("Courts have uniformly agreed

that computers should be treated as if they were

closed containers.").

A purpose of the Fourth Amendment is to

safeguard individuals from unreasonable

government invasions of legitimate privacy

interests, and not simply those interests inside the

four walls of the home. United States v. Chadwick,

433 U.S. 1 (1977). In Riley v. California, 134 S. Ct.

2473 (2014), this Court held unlawful the search

and seizure of a cell phone record and stated that

modern cell phones hold for many Americans "the

privacies of life" that cannot be accessed without a

warrant. A computer holds far more "the privacies

of life" than a cell phone.

Accessing a computer that is inside a home is

36.

also a Fourth Amendment violation inside the

home. In Katz v. United States, 389 U. S. 347, 351

(1967), this Court held that the FBI's placement of

a recording device on the outside of a public

telephone booth without a warrant qualified as an

unlawful search that violated the reasonable

"expectation of privacy" if a phone user enclose

himself in the booth even if the device did not

physically penetrate the walls of the booth or his

person or property. In Kyllo v. United States 533

U.S. 27 (2001), this Court adapted what the law

considers reasonable under the Katz test to new

technologies. This Court held that the use of a

thermal imaging device on the outside of a person's

home constituted a violation of the Fourth

Amendment even in the absence of a physical

trespass because the use of the device invaded a

person's reasonable expectation of privacy inside

their home. Today, accessing a computer that is

inside a home clearly constitutes a physical

invasion of privacy that can also constitute a

physical entry. Through a computer's webcam, a

perpetrator has both visual and auditory access to

the inside of a private home. See Robbins, el al., V.

Lower Merion School District et al., No. 2:10-CV99665, US District Court of Pennsylvania.2

In Robbins, el al., v. Lower Merisn School District et al.,

No. 2: 10-CV.99665, US District Court, District of

Pennsylvania, with the laptop computers provided to students

by the school, while the computers were inside the students'

homes, school officials secretly activated the webcams of the

2

37.

The taking of typing and trial work products

from a computer and denying right to use a

personal computer to type court briefs and to testify

in court are also serious violations of the Fifth

Amendment considered to be sanctionable. See

Jackson v. Microsoft Corp., 211 F.R.D. 423, 430-32

(WD. Wash.2002), affd 78 Fed. App'x 588 (9th

Cir.2003.).3 The Fifth Amendment states that a

person may not be deprived of life, liberty or

property by the government without "due process of

law." The Fifth Amendment also guarantees

judicial due process that includes an equal

protection component, see In re Murchison, 349

U.S. 133, 136 (1955), and guarantees protection

against the taking of property and physical

invasion even without physical entry, United State

v. Causby, 328 U.S. 256 (1946).

In Payton v. New York 445 U.S. 573 (1980), this

Court stated that the Fourth Amendment of the

United States Constitution draws a firm line at the

entrance to a house, that the physical entry of the

laptops and accessed and reviewed inside the students'

homes.

The Ninth Circuit upheld sanction imposed on party for

taking confidential information of an opposing party. See

Perna u. Elec. Data Sys. Corp., 916 F. Supp. 388D.N.J. (1995)

(involving a litigant who photocopied the contents of opposing

counsel's briefcase when it was left in his office.

home is the chief evil against which the wording of

the Fourth Amendment is directed. See Lawrence v.

Texas, 539 U.S. 558 (2003).

The doctrines of the Fourth and Fifth

Amendments "apply to all invasions on the part of

the government and its employees of the sanctity of

a man's home and the privacies of life." Boyd v.

United States, 116 U. S. 616, 626 (1886). In United

States v. Jones, 132 S. Ct. 945, 963 (2012), this

Court stated that the Court must "assur[e]

preservation of that degree of privacy against the

government that existed when the Fourth

Amendment was adopted." See Kyllo v. United

States, 533 U.S. 27 (2001). That it is not the

that constitutes the

breaking of his doors,

essence of the offence, but it is the invasion of his

indefeasible right of personal security, personal

liberty and private property and therefore, the

Courts have the duty of being watchful for the

constitutional rights of the citizen, and against any

stealthy encroachments thereon."

.

.

.

The Fourth Amendment put the courts of the

United States and Federal officials, in the exercise

of their power and authority to forever secured the

people, their persons, houses, papers, and effects

against all unreasonable searches and seizures

under the guise of law. Weeks v. United States, 232

U. S. 383 (1914).

39.

CONCLUSION

The petition for a writ of certiorari should be

granted.

April 12, 2018

Respectfully submitted

By: Is / Pamela Melvin

Pamela Melvin, pro se

4949 Fieldcrest Drive

Fayetteville, NC 28303

i)amela.melyin@yahoo.com