Petition for Writ of Certiorari — Keith Fernandez, Petitioner v. The Wharton School of the University of Pennsylvania, et al.

Supreme Court briefMar 30, 2021

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Supremo Court, U.S.

FILED

MAR 3 0 2021

OFFICE OF THE CLERK

No.

ao-jyo?

IN THE SUPREME COURT OF THE UNITED STATES

KEITH FERNANDEZ,

Petitioner,

THE WHARTON SCHOOL OF THE

UNIVERSITY OF PENNSYLVANIA, et

al., Respondents.

On Petition for a Writ of Certiorari to

the United States Court ofAppeals

for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

KEITH M. FERNANDEZ

Counsel ofRecord, Pro Se

1713 Bridgewater Dr.

Lake Mary, Florida 32746

321.666.9000 voice

biblematthew5.5@gmail.com

Friend of the Court

QUESTIONS PRESENTED FOR REVIEW

Petitioner is a graduate of Harvard College with

an Honorary Degree in Economics and Wharton

Business School with his M.B.A. in Finance. He filed

Suit against Wharton Business School in 2019 in the

Eastern District of Pennsylvania for Breach of

Contract and Ethnicity Discrimination related to the

awarding of the Academic Excellence Fellowship for

2018. This Fellowship is awarded to the student or

students with the highest cumulative GPA during

their second and third semesters of the MBA program.

During the awarding of the Fellowship, the

Petitioner became suspicious of the behavior of

Wharton Administrators. They told the Petitioner in

an email that two students had a .01 higher GPA and

that he would not be receiving the Fellowship. They

intentionally stained the Petitioner, were acting

evasively and refused to provide the Petitioner with

corroborating information or further detail on the

awarding of the Fellowship.

The Petitioner later became aware, through

informal discovery on the two winning recipients, that

Wharton administrators were lying and covering up

defrauding the Petitioner by awarding the

Valedictorian Scholarship to a student or students

with the same and/or lower GPAs than the Petitioner.

Due to the unethical and illegal behavior of the

Wharton Administrators, the Petitioner filed Suit

against Wharton Business School for Breach of

Contract and Ethnicity Discrimination in violation of

42 U.S. Code § Section 1981.

Despite fulfilling all prosecutorial obligations,

the Suit was suspiciously dismissed in the Eastern

District of Pennsylvania by the Judge right before the

Petitioner was scheduled to conduct discovery. The

staff to the Judge wrote an email to the Petitioner

telling him that he would be allowed to conduct

discovery and that a case management date would be

scheduled.

At the very last minute, the Judge dismissed the

Petitioner’s suit with prejudice right before discovery

was scheduled to take place.

Numerous federal case precedent has been set

establishing that a student enters into a contractual

relationship with a College or University upon the

implicit exchange of money for contractual

educational services.(1) Despite this, the judge made

an erroneous ruling on this matter in his Order

dismissing the case with prejudice preventing the

Plaintiff from even conducting discovery.

(l) See Reynolds v. The University ofPennsylvania, 684 F.

Supp. 2d 621 (E.D. Pa. 2010),' Gaily v. Columbia

University, 22 F. Supp. 2d 199, 206 (S.D.N.Y. 1998)', Chira

v. Columbia University, 289F.Supp. 2d 477, 485-86

(S.D.N. Y. 2003); Peretti v. Montana, 464 F. Supp. 784 (D.

Mont. 1979).

iii

In Reynolds v. The University of Pennsylvania,

a close precedent, the Plaintiff prevailed on a breach

of contract claim for even less aggressive and more

indirect misconduct by the University with egregious

evidence of the Plaintiff even falsifying evidence and

documents presented in discovery.

For some reason, in Fernandez v. The Wharton

School, Fernandez wasn’t even allowed to conduct

discovery, even with this Reynolds precedent in place.

Under Fed. R. Civ. P. 12(b)(6), a Court may

dismiss a complaint for failure to state a claim.

However, as established in Jiri Pik v. University

(2) «

dismissal is a harsh remedy and

of Pennsylvania

should only be resorted to in extreme cases.” Even in

this Pik precedent, the Plaintiff was able to conduct

discovery and his Complaint was only dismissed for

precedent,

flagrant violations of the Poulis (3)

including the Plaintiff not even showing up for

scheduled discovery.

For some reason, despite all of this federal

precedent, including favorable precedent established

in the Eastern District of Pennsylvania against the

same University system, Fernandez was still not even

allowed to conduct discovery in his Case.

(2) Jiri Pik v. The University ofPennsylvania, No. 08-5164

(E.D Pa. 2011).

(3) Poulis v. State Farm Fire and Cas. Co., 74 7F.2d 863 (3d

Cir. 1984).

The following question is presented1.

Did the Eastern District of Pennsylvania err in

its 12(b)(6) dismissal of the Fernandez case and

did Wharton Business School breach its

contract with the student with regards to

the awarding of the Academic Excellence

Fellowship for 2018?

PARTIES TO PROCEEDING AND RELATED CASES

Plaintiff

•

Keith M. Fernandez

Defendants

•

The Wharton School of the University of

Pennsylvania

The University of Pennsylvania

Stephan Dieckmann

Amy Miller

Michelle Hopping

Related Cases

•

Fernandez v. The Wharton School of the

University ofPennsylvania, et al., No.

2U9-CV-05574, U.S District Court for the

Eastern District of Pennsylvania.

Judgement entered May 11, 2020.

•

Fernandez v. The Wharton School of the

University ofPennsylvania, et al., No. 202218, U. S. Court of Appeals for the Third

Circuit. Judgement entered November 3,

2020.

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO PROCEEDING & RELATED CASES

TABLE OF AUTHORITIES

.viii

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

rn. JURISDICTION

rv. STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

VI. REASONS FOR GRANTING THE WRIT

A. This Court’s intervention is needed to enforce and uphold

the integrity of the Ivy League & monitor the practices,

standards and ethics of the nation’s Highest Educational

Institutions.

.20

Vn. CONCLUSION AND PRAYER FOR RELIEF

APPENDIX

Memorandum Opinion of the District Court.........................

A-l

Procedural Dismissal by the Court of Appeals.....................

B-l

COVID-19 Order Extending Filing Deadline........................

Motion to Dismiss the Indictment................... ........................

C-l

D-l

- Complaint ofFelony Federal Witness Tampering & Obstruction ofJustice

filed with the Southern District ofFL Attorney General.......................................

D-2

- Complaint of Torture & Felony Whistleblower Retaliation filed with the

U.N. Convention Against Torture ("CAT") & HR Committee...............................

- Complaint ofFelony Federal Witness Tampering, Ordered Witness Intimidation

Assault & Obstruction ofJustice Filed with NYAttorney General .....................

Vll

D-3

D-4

TABLE OF AUTHORITIES

Federal Cases

ATACS Corp. v. Trans World Commc’ns, Inc.,

155 F.3d 659, 666 (3d Cir. 1998)............................................................

Babiker v. Boss Univ. Sch. ofMed.,

2000 WL 666342 (S.D.N.Y. May 19, 2000)....................... ....... 23

Bell v. Jendell,

980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013)..........................................

Caidor v. Onondaga Cty,

517 F.3d 601, 605 (2d Cir. 2008)............................................................

Chira v. Columbia University,

289 F.Supp.2d 477, 485-86 (S.D.N.Y. 2003)......................................

Conley v. Gibson,

355 U.S. 41 (1957).......................................................................................

Daniel v. T&MProi. Res., Inc.,

992 F. Supp. 2d 302, 304 n.l (S.D.N.Y. 2014)...................................... ...29

Dixon v. United States,

No. 13-CV-2193, 2014 WL 23427, (S.D.N.Y. Jan. 2, 2014)...............

Erickson v. Pardus,

551 U.S. 89, 94 (2007)..................................................................................

Eternity Glob. Master Fund Ltd. v. Morgan Guar. Tr. Co. ofN.Y.,

375 F.3d 168, 177 (2d Cir. 2004)..............................................................

Farzan v. Wells Fargo Bank, N.A.,

No. 12-CV-1217, 2013 WL 6231615, (S.D.N.Y. Dec. 2, 2013)...........

Gaily v. Columbia University,

22 F.Supp.2d 199, 206 (S.D.N.Y. 1998).................................................

Gociman v. Loyola University Chicago,

No. i:20-cv-03116 (N.D. Ill. 2020).......................................................... .

Gross v. German Found Indus. Initiative,

549 F.3d 605, 610 (3d Cir. 2008)...... ............................................... ........

Hassan v. Fordham University,

No. 20-CV-3265 (S.D.N.Y. 2021)..............................................................

viii

Jiri Pik v. The University ofPennsylvania,

No. 08-5164 (E.D. Pa. 2011).........................................

Koch v. Christie’s Inti PLC,

699 F.3d 141, 145 (2d Cir. 2012).................................

Mindek v. Rigatti,

964 F.2d 1369, 1373 (3d Cir. 1992).......... .................

Pell v. Trustees of Columbia University,

1998 WL 19989 (S.D.N.Y. Jan. 21, 1998).................

Peretti v. Montana,

464 F. Supp. 784 (D. Mont. 1979).............................

Reynolds v. The University ofPennsylvania,

684 F. Supp. 2d 621 (E.D. Pa. 2010)..........................

Rodriguez v. NY. Univ.,

No. 05-CV-7374, 2007 WL 117775 (S.D.N.Y. 2007)

Sykes v. Bank ofAmerica,

723 F.3d 399, 403 (2d Cir. 2013).................................

Ware v. Rodale Press, Inc.,

322 F.3d 218, 222-23 (3d Cir. 2003)............................

Walker v. Schult,

No. 12-1806 (2d Cir. 2003)............................................

State Cases

Baldrige v. State,

293 A.D.2d 941, 943 (3d Dep't 2002).........

Joyner v. Albert Merrill School,

97 Misc. 2d 568, 411 N.Y.S.2d 988 (1977)

Olsson v. Bd. ofHigher Educ.,

97 Misc. 2d 568, 411 N.Y.S.2d 988 (1977)

Federal Rules & Statutes

Federal Rule of Civil Procedure 12(b)(6)

42 U.S. Code § Section 1981(a) — (c)

PETITION FOR WRIT OF CERTIORARI

Keith M. Fernandez petitions the Court for a

writ of certiorari to review the judgment of the United

States District Court for the Eastern District of

Pennsylvania following the procedural dismissal of

his Complaint by the United States Court of Appeals

for

the

Third

Circuit

due

extenuating

circumstances.

II.

OPINIONS BELOW

The procedural dismissal of the Court of

Appeals for the Third Circuit in Fernandez v. The

Wharton School of the University ofPennsylvania, et

al., No. 20-2218 (3rd Cir. 2020) is included in

Petitioner’s Appendix at B-l. The opinion of the

District Court granting the motion to dismiss in

Fernandez v. The Wharton School of the University of

Pennsylvania etal., No. 2'-19-cv05574 (E.D. Pa. 2020)

is included in Petitioner’s Appendix at A-l.

III.

JURISDICTION

The Eastern District of Pennsylvania entered

judgment on May 11, 2020. See Appendix A-l. The

Third Circuit entered an order for a procedural

dismissal of the case on November 3, 2020. See

Appendix B_l.

On March 19, 2020, “in light of ongoing public

health concerns relating to COVID-19” it was ordered

by the Court that “the deadline to file any petition for

a writ of certiorari due on or after the date of this

order is extended to 150 days from the date of the

lower court judgment...” See Appendix C'l.

Given the Third Circuit entered judgement on

November 3, 2020, this petition is timely filed within

150 days, pursuant to this order. This Court has

jurisdiction under 28 U.S.C. § 1254(l).

IV.

STATUTORY PROVISIONS INVOLVED

This case involves a Fed. R. Civ. P. 12(b)(6)

dismissal for an educational breach of contract claim

regarding the awarding of the Wharton Academic

Excellence

Fellowship

for

2018

and

ethnicity

discrimination under 42 U.S. Code § Section 1981.

STATEMENT OF THE CASE

Introduction —

This petition arises from the efforts of a man

who is being subject to Federal Witness Tampering,

highly orchestrated and pre-meditated “Gaslighting„(D

of a Federal Whistleblower, sustained intimidation

tactics utilized to discredit the testimony of a Federal

Whistleblower and other violations of 18 U.S. Code §

1512. It can only be compared to what has occurred

historically under the Stalin Regime in the Gulag

Euthanasia Camps of the Soviet Union as a way to

discredit and silence Government Dissidents and

Whistleblowers. It is factually this extreme. It is

exposed in this Writ before the Supreme Court as a

way to preserve the integrity of our Country’s highest

educational institutions (who have been impacted by

this), combat corruption, tampering and obstruction

of justice in our Federal Court Systems and preserve

the integrity of our Federal Intelligence Agencies.

Furthermore, it is exposed and documented to

the Supreme Court as a way to prevent such highly

(l) Gaslighting is a form ofpsychological manipulation in which

a person or a group covertly sows seeds ofdoubt in a targeted

individual, making them question their own memory,

perception orjudgment as a way to discredit them.

coordinated

and

orchestrated

federal

witness

tampering from occurring again in the future against

other Federal Whistleblowers.

The petitioner filed a Federal Qui-Tam Lawsuit

on August 8th, 2018 in the Middle District of Florida

exposing large-scale alleged Healthcare Fraud by

Serial Offenders currently under investigation by the

FBI and other federal agencies.

(2)

As a result of this Whistleblower Lawsuit, it is

the Petitioner’s belief that he was put under

warrantless Electronic Surveillance Monitoring by

Federal Intelligence Agencies, including the Central

Intelligence Agency (“CIA”) for the purposes of

influencing and coloring his Lawsuit.

It is also the Petitioner’s belief that certain

Federal Agents are attempting to obstruct justice on

his Lawsuit and witness intimidate him to cover up

the alleged fraudulent conduct. One of the potential

reasons for this obstruction activity is to support the

cultivation of “Black Empowerment,” and to combat

the alleged “skin color discrimination” faced by

the owners of the Defendant companies.

(2) See United States of America ex rel. Keith Fernandez vs.

Freedom Health, Inc., Optimum Healthcare, Inc. and

Physician Partners, LLC, Case no. 8'-2018-cvl959.

This same pattern of documented harassment

and intimidation behavior was inflicted on the first

Whistleblower, Dr. Darren Sewell, to the Defendant’s

fraud in Fernandez’s Qui'Tam Case, wealthy IndianAmerican businessmen, resulting in “black-balling,”

public defamation, stalking and extreme stress

contributing to full loss of income and employment

and an early death at the age of thirty-nine.(3)

Regardless of the validity of the Petitioner’s

. beliefs, the facts are that such Federal surveillance

activity is kept classified and not public information.

As such, all the Petitioner can do is document the

instances of overt felony witness intimidation and

obstruction of justice.

Such behavior, which has been thoroughly

documented by the Petitioner, has resulted in alleged

poisonings and usage of chemical weapons, ordered

felony witness intimidation assaults, racist violent

federal hate crimes, force suicide taunts, aggravated

stalking of the Petitioner, false and framed arrests,

framed

involuntary

commitments,

documented

tampering of his legal employment, and other

instances of intimidation and criminal torture.

(3) See “The Personal Tolls of Whistle-Blowing” article by

Sheelah Kolhatkar. The New Yorker. January 28, 2019.

Annals ofHealth Care. February 4, 2019 Issue.

Such

documentation

provides

necessary

evidence and corroboration to the allegations the

Petitioner makes. Such documentation has resulted

in the following criminal complaints and human

rights complaints:

Complaints Filed

02/23/21:

Exhibit

D-2

09/17/20:

Exhibit

D-3

05/02/20:

Exhibit

D-4

Criminal Complaint made to the Attorney

General’s Office of the Southern District of Florida

reporting Felony Witness Tampering, Felony

Grand Larceny (FBI Complaint) & Obstruction of

Justice

Human Rights Complaint filed with the United

Nations Convention Against Torture (“CAT”) (4) and

the Human Rights Council reporting Felony

Torture, Use of Chemical Weapons & Poisonings,

Sex Trafficking & Extortion by Federal Agents,

Force Suicide Taunts, Surveillance Abuse & Severe

Witness Intimidation

Criminal Complaint made to the Attorney

General’s Office of the Eastern District of New York

reporting an Ordered Felony Witness Intimidation

Assault, Racial Federal Hate Crimes, Surveillance

Abuse, Aggravated Stalking & Obstruction of

Justice

(4) According to the U.N. Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, the

term “torture” means any act by which severe pain or

suffering, whether physical or mental, is intentionally

inflicted on a person for such purposes as obtaining from him

or a third person information or a confession, punishing him

for an act he or a third person has committed oris suspected

of having committed, or intimidating or coercing him or a

thirdperson, or for any reason based on discrimination ofany

kind, when such pain or suffering is inflicted by or at the

instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.

One of the most damaging aspects of the

sustained defamation and witness intimidation that

the Petitioner has received is that his educational

achievements

have

been

rendered

essentially

worthless. In retaliation for his Qui'Tam Lawsuit and

to discredit the validity of his testimony, the

Petitioner has been subject to federal blanket

surveillance resulting in extreme defamation, torture

and inhumane treatment, gaslighting of mental

illness,

. tampering

with

his

employment

opportunities, public ridicule and shaming and other

acts of sustained and persistent witness intimidation.

All of this conduct is being done to discredit the

testimony of the Petitioner and to cover up the

allegations in his Qui'Tam Lawsuit for the purpose of

cultivating and protecting “Black Empowerment,”

while permanently scarring the Petitioner for life.

It is the belief of the Petitioner that such

surveillance activities and the resulting defamation

he has received have also carried over to his

educational achievements and impacted the way he

has been treated and perceived while at Wharton. The

coloring or influencing of Wharton administrators to

discredit Fernandez and make him look bad may be a

reason why he was treated so poorly and unethically

by Wharton administrators with regards to their

defalcation of him for the Academic Excellence

Fellowship for 2018.

(5)

Background —

After graduating from Harvard College with

Honors in 2010, Fernandez worked for four years on

Wall Street at leading investment banks and private

equity firms, including Bank of America Merrill

Lynch and KKR.

After completing a two-year Associate program

at KKR, Fernandez attended The Wharton Business

School for one semester in 2014. During his first

semester at Wharton, Fernandez started several

businesses including National Diagnostic Solutions.

(5) The student (or students, in the case of a tie) who achieve

the highest academic performance during their second and

third semester of the MBA program is awarded the

Academic Excellence Fellowship, a grant of $10,000.

Academic performance for the Academic Excellence

Fellowship is measured by the cumulative GPA during those

two terms, not counting summer courses. The GPA is

determined by assigning the following numerical weights to

the letter grades received in Wharton MBA courses■ A=4

points, B=3 points, C=2 points, D=1 point, and F-0 points,

with + (plus) increasing the full grade value by .33 and (minus) decreasing the full grade value by .33. A+’s carry a

4.0 point value, a University of Pennsylvania policy. The

Academic Excellence Fellowship requires that the student

take at least 9 credit units during their second and third

semester, not counting summer courses.

Given the time conflict and the extensive

commitment

attending

running

his

graduate school,

businesses

while

Fernandez took an

approved leave of absence from Wharton after one

semester to focus on managing his companies.

After taking a leave from Wharton, Fernandez

won several entrepreneurial awards over the next two

years

including

the

Brillante

Award

for

Entrepreneurial Excellence from the National Society

of Hispanic MBAs in 2015.(6)

In 2017, Fernandez decided to finish his

graduate degree from Wharton and re-enrolled in the

MBA program in Fall 2017. Given Fernandez had

previously finished his first semester in 2014, he re

enrolled in Wharton “off-cycle,” beginning his 2nd

semester in Fall 2017.

After re-enrolling at Wharton, Fernandez was

one of the best students in his class earning a GPA of

3.97 in both the 2nd and 3rd semesters and being

awarded 6 A+s.

(6) The National Society of Hispanic MBAs, now known as

Prospanica, a wards the Brillante A ward for Entrepreneurial

Excellence each year at their Annual Conference to an

entrepreneur who exemplifies Hispanic leadership through

their drive and success. Particular attention is given to the

candidate’s vision and passion, the candidate’s leadership

and the candidate’s commitment to social responsibility and

empowering the youth.

A+s at Wharton are discretionary and are only

awarded to the very top academic performers in a

class, sometimes only one or two in a given class of

hundreds.

According

the , University

Pennsylvania policy, A+s carry the same weighting of

4.0 as regular As for the purpose of computing GPA.

A+s denote a “statistically-significantly” higher

level of academic performance and aggregated exam

and test scores in a given course relative to As.

Grading for most courses at the Wharton

Business School are done on a curve and all grades A+

through D- are “relative” performance indicators (i.e.,

they depend on how other students in the class

perform). While it varies by course, A grades are

usually awarded to the top 10% of students in a given

course. A+ grades, however, are awarded to only a

couple to a few students in each class and are

statistically differentiated relative to an A grade.

Wharton does not provide transparent data on

the awarding of A+ grades and specifically how

statistically significant the differential in academic

performance may be for a student like Fernandez who

achieves a remarkably high amount of A+ grades over

two semesters (i.e. 6 A+s in two semesters) vs.

students who just receive an equivalent A.

The Awarding of the Academic Excellence

Fellowship

Given his high marks, Fernandez sent an email

to Amy Miller in the Academic Affairs department at

Wharton on January 25, 2019 expressing his desire to

be considered for the Academic Excellence Fellowship,

awarded to the top student or student(s) at Wharton

over the 2nd and 3rd semesters as determined by

their cumulative and weighted GPAs.

On February 5, 2019, Plaintiff Fernandez

received a rushed email from Defendant Miller, only

moments before an official announcement was

scheduled to be sent out, stating that Fernandez "was

considered for the scholarship," however, two other

students

were

the

selected

recipients

of the

Fellowship. Defendant Amy Miller also represented to

Fernandez that the margin of differential was only .01

for both students.

Suspicious of the rushed and insensitive nature

of the email, the statistically insignificant "alleged"

margin of differential of .01, the prestige of the

fellowship and the monetary award of $10,000,

Fernandez continued to press Defendant Miller to

provide him with additional details regarding the

calculation and determination of GPA for the award.

Specifically, Fernandez wanted to know (i) how

the GPA was calculated (i.e.

whether it was

appropriately weighted and statistically adjusted for

differentials in course credits and Pass-Fail courses),

(ii) why it was determined that Fernandez should be

benchmarked against the Class of 2019 vs. the Class

of 2016 or 2018 and (iii) how many A+ and A- credits

were earned by his competitors given the "alleged"

insignificant margin of differential in GPA and the

objective rarity of Fernandez's achievement of six A+

credits over two semesters.

Wharton’s behavior became suspicious and

suggestive of deceit. Despite Fernandez's logical and

accurate requests for further information, Defendant

Miller suspiciously refused to provide Fernandez with

any further detail or information even if on an

anonymous

basis.

Her

behavior

and

conduct

suggested that she was being untruthful with

Fernandez,

Given the potentially illegal behavior by

Wharton administrators and given the fact that

discrimination

against

Hispanic Americans

demonstrated by empirical evidence and data)

serious

problem

in American

(as

(7) •

is a

higher-education,

Fernandez warned Defendant Amy Miller about

potential discriminatory liability for the University.

such,

Defendant

Miller

referred

Fernandez's request to take the process more

seriously to Defendant Stephan Dieckmann, Vice

Dean of Academic Affairs.

On February 8, 2019, Defendant Dieckmann

sent an email to Fernandez allegedly representing

that the GPA for the Academic Excellence Award was

calculated correctly, but refusing to provide further

details, tangible evidence or a rational explanation for

Fernandez's requests for further exposition and proof.

(7) The New York Times, August 24, 2017, “Even with

Affirmative

Action,

Hispanics

Are

Underrepresented at Top Colleges than 35 Years Ago.”

According to data compiled by the U.S. Department of

Education’s Office for Civil Rights, despite decades of

Affirmative Action policies at Ivy League Schools, the gap

for minority enrollment at prestigious Ivy League Schools

has actually worsened for Hispanics, with admissions of

Hispanics not growing at a proportional rate to overall

population growth relative to 1980.

However, in the same email that Defendant

Dieckmann alleged that the Award GPA was

calculated correctly, Defendant Dieckmann made a

bad mistake.

Dieckmann intentionally misrepresented to

Fernandez that he would be eligible for a different

academic scholarship, the Palmer Scholarship, which

in reality would be impossible for Fernandez to obtain

if only Dieckmann had looked at his transcript.

This made it apparent to Fernandez that

Dieckmann was lying and that he was intentionally

taunting Fernandez. Such behavior by Dieckmann

regarding something as important as the Academic

Excellence Fellowship signified bias and deceit by

Defendants Miller and Dieckmann.

After this erroneous email sent by Defendant

Dieckmann on February 8, 2019, Fernandez ceased

all contact with the University and signified that he

would be filing a Complaint.

There were also rumors being spread that

Fernandez was being "black-balled" by the University

in retaliation for threatening a lawsuit and that he

was being defamed amongst the faculty, staff and

other students for asserting his legal rights. There

were also defamatory rumors being spread that

Plaintiff Fernandez was "very sick."

As such, Fernandez never received proof or

confirmation that he was being fairly evaluated for

the

Academic

complaint

Excellence

regarding

Fellowship

insensitive,

and

his

discriminatory,

illegal and fraudulent treatment were never escalated

properly

addressed

according to University

policies.

It was later determined through informal

discovery on the two other award winners, that

Wharton was in fact just lying and that at least one of

the award winners did not indeed have a .01 higher

aggregate GPA as he was told.

Procedural History

Given the unethical and defamatory behavior

by Wharton administrators, Fernandez filed Suit in

the Eastern District of Pennsylvania(8) on November

26,

2019 for breach of contract and ethnicity

discrimination under 42 U.S. Code § Section 1981

(8) Fernandez v. The Wharton School et. ah, No. 2'19-cv05574

(RD. FA. 2020).

Despite fulfilling all prosecutorial obligations,

the Suit was suspiciously dismissed in the Eastern

District of Pennsylvania by the Judge right before the

Petitioner was scheduled to conduct discovery. The

staff to the Judge wrote an email to the Petitioner

telling him that he would be allowed to conduct

discovery and that a case management date would be

scheduled.

At the very last minute, the Judge dismissed

the Petitioner’s suit with prejudice right before

discovery was scheduled to take place on May 11, 2020

(see Appendix A-1). It is the Petitioner’s belief that

this unethical behavior may have been influenced by

certain federal intelligence agents as a way to

obstruct justice on his Lawsuit to prevent him from

uncovering the truth through discovery and to

discredit him and make him look bad to cover up his

Qui'Tam Lawsuit.

In May 2019, after Fernandez’s initial Suit was

suspiciously dismissed in the Eastern District of

Pennsylvania right before promised discovery and a

Case Management Conference was scheduled to take

place, Fernandez conducted informal discovery out of

court on the two determined winners of the Academic

Excellence Fellowship to corroborate the information

provided by Wharton administrators. He could tell by

their behavior that Wharton administrators were

acting unethically and lying.

Upon conducting this informal discovery, it was

confirmed to Fernandez on the condition of anonymity

that at least one of the recipients of the Academic

Excellence Fellowship did not in fact have a .01 higher

GPA. Rather, it was confirmed that their cumulative

GPA over these two semesters was the same as

Fernandez’s 3.97 or perhaps even lower.

It was thus determined that Wharton was just

lying and engaging in breach of contract regarding the

awarding of this important Valedictorian Fellowship.

They just robbed Fernandez of the Fellowship and lied

about the GPA of the other winners.

There is also behavioral evidence suggesting

that they influenced or attempted to influence the

Judicial Officer to dismiss Fernandez’s suit to impede

his ability to conduct lawful discovery and expose the

truth.

On June 17, 2020, Fernandez appealed the

ruling of the Eastern District Court of Pennsylvania

to the U.S Court of Appeals for the Third Circuit.

On 9/11, the Court of Appeals issued a briefing

and scheduling order for a brief and appendix to be

filed before October 21, 2020.

On September 17, 2020, Fernandez filed a

Complaint of Felony Torture with the UN Convention

against

Torture

intimidation

persistent

was

experiencing,

witness

including

thoroughly documented force suicide taunts, ordered

federal hate crime assaults (caught on surveillance

video)

and alleged use of chemical toxins as

retaliation for his Federal Qui-Tam Suit. (Appendix

D-3).

On September 18, 2020, the very next day,

Fernandez was arrested on charges of Federal Fraud

for ~$400k from 2018 with evidence of an illegal and

targeted audit, framing and felony tampering with

evidence and billings related to a healthcare practice

used to frame him and his father (a physician) by a

company in India. (See Motion to Dismiss Appendix

D'l). Fernandez has pled not guilty to these charges.

He was held in federal detention for close to two

months, had to be placed in Protective Custody after

receiving “black power” taunts and “stabbing threats”

by organized Blood Gang Members and there is

evidence now that he was tortured in his cell and that

his attorney was tampered with to prolong his

incarceration to obstruct justice. (Appendix D‘2).

Suspiciously, immediately after Fernandez was

arrested on these charges (relatively small when

compared

other

federal

healthcare

fraud

precedents), his Qui-Tam Lawsuit was immediately

unsealed and a deadline for ascertaining new counsel

was set to eliminate his ability to continue to litigate

Effectively,

they misused his arrest and

prolonged his incarceration as a way to obstruct

justice on his Qui-Tam Lawsuit. (See Motion to

Dismiss Appendix D'l), Fernandez is still continuing

to litigate his Qui-Tam case, however.(9)

He was released from detention on November

5, 2020, to find his Wharton Lawsuit was also

dismissed by the Court of Appeals on a procedural

basis for failure to timely prosecute on November 3,

2020, only days before his release. (See Appendix B'l)

(9) See United States ofAmerica ex rel. Keith Fernandez vs.

Freedom Health, Inc., Optimum Healthcare, Inc. and

Physician Partners, LLC, Case no. 8-'18-cv-l959-MSS-JSS.

VI.

REASON FOR GRANTING THE WRIT

This Court’s intervention is needed to

enforce and uphold the integrity of the

Ivy League & monitor the practices,

standards and ethics of the nation’s

Highest Educational Institutions

This Court’s intervention is necessary to

enforce and uphold the integrity of the Ivy League and

to set much needed federal case precedent in

collegiate and post-secondary educational breach of

contract claims.

In general, in order to state a claim for breach

of contract, a plaintiff must establish the existence of

an agreement, performance of the contract by the

plaintiff, breach of contract by the defendant and

damages. Eternity Glob. Master Fund Ltd. v. Morgan

Guar. Tr. Co. ofNY.

(10)

In Gaily v. Columbia University {U), federal

precedent was established to recognize the existence

of an implied contract between a university and its

students. The terms of this contract are outlined in

the

“bulletins,

circulars

and regulations

made

available to the student” and “a student may seek

(10) Eternity Glob. Master Fund v. Morgan Guar. Tr. Co. of

1V. Y., 375F.3d 168, 177 (2d Cir. 2004).

(11) Gaily v. Columbia University, 22 F.Supp.2d 199, 206

(S.D.N.Y. 1998).

redress for alleged breaches by the university.” Id.

. In Reynolds v. University ofPennsylvania

(12)

the Court ruled in favor of the Plaintiff in a breach of

contract claim. In Peretti v. Montana

(13)

, the student

prevailed in a suit for damages when the court

recognized that an implied contract was entered into

between a school and a student under which the

school is required to honor its commitments.

In Chira v. Columbia University

further established that

(14)

it was

educational breach of

contract claims must identify “specific” promises that

were broken by the university (dismissing claims in

which

students

"point[ed]

document

conversation that gives rise to a promise which

Columbia breached"). This precedent was further

established in Baldrige v. State.(l5)

Consistent with case precedent, Fernandez

entered into a contract with Wharton Business School

when he made his tuition payments to the University

over the course of 2017 and 2018. Given this contract,

Wharton was obligated to provide services and to

(12) Reynolds v. The University ofPennsylvania, 684 F. Supp.

2d 621 (E.D. Pa. 2010).

(13) Peretti v. Montana, 464 F. Supp. 784 (D. Mont.

1979).

(14) Chira v. Columbia University, 289F.Supp. 2d 477, 485-86

(S.D.N.Y. 2003).

(15) Baldrige v. State, 293A.D.2d 941, 943 (3dDep't 2002).

make determinations on scholarship and fellowship

awards following the specific criteria set forth in its

policies.

Additionally, in this case, Wharton broke

specific “bulletins, circulars and regulations made

available to the student” and just lied to Fernandez

regarding the GPA of the other award winner(s) to rob

him of the Academic Excellence Fellowship. This is a

very specific breach according to the official published

academic policies of the Wharton MBA Program:

“The student (or students, in the case of a tie) who

achieve the highest academic performance during

their second and third semester of the MBA program

is awarded the Academic Excellence Fellowship, a

grant of $10,000. Academic performance for the

Academic Excellence Fellowship is measured by the

cumulative GPA during those two terms, not

counting summer courses. The GPA is determined by

assigning. the following numerical weights to the

letter grades received in Wharton MBA courses: A=4

points, B=3 points, C=2 points, D=1 point, and F=0

points, with + (plus) increasing the full grade value

by .33 and - (minus) decreasing the full grade value

by .33. A+’s carry a 4.0 point value, a University of

Pennsylvania policy. The Academic Excellence

Fellowship requires that the student take at least 9

credit units during their second and third semester,

not counting summer courses.”

In Joyner v. Albert Merrill School(16), a student

alleged fraudulent misrepresentation and breach of

contract against his school on the basis that they

(16) Joyner v. Albert Merrill School, 97Misc. 2d 568, 411

N.Y.S.2d 988 (1977).

misrepresented or lied about statistics relating to the

certainty of placement in a high paying job upon

graduation. The Court ruled in favor of the Plaintiff

on the basis of the school’s deceptive behavior and

fraudulent

misrepresentations.

Certainly,

Fernandez’s situation where Wharton just lied about

something

important

the

Valedictorian

scholarship,

a breach of contract under their

published anti-fraud policies occurred here given the

defalcation and misappropriation of university funds.

As established in Olsson v. Bd. ofHigher Educ.

(17)

, the “essence” of an implied contract between a

university and student is that the university “must

act in good faith in its dealings with its students.” In

order to plead an actionable breach of contract, the

student must show that the university “acted in bad

faith or in an arbitrary or irrational manner.” See Pell

v. Trustees of Columbia Univ.

Univ. Sch. ofMed.

this

(18)

and Babiker v. Boss

(19)

situation,

clearly

Wharton

administrators acted in “bad faith” towards the

(l 7) Olsson v. Bd. ofHigher Educ., 97 Misc. 2d 568, 411

N.Y.S.2d 988 (1977).

(18) Pell v. Trustees of Columbia University, 1998 WL

19989 (S.D.N. Y. Jan. 21, 1998).

(19) Babiker v. Boss Univ. Sch. of Med, 2000 WL 666342

(S.D.N.Y. May 19, 2000).

student, breaking their own official university policies

in a very “specific manner” and engaging in lies to the

student to defraud him of an important Fellowship.

In Gociman v. Loyola University of Chicago(20),

the District Court dismissed the Complaint finding

the plaintiff failed to allege the University made a

specific promise. In Hassan v. Fordham University

the District Court dismissed the Complaint finding

the plaintiff failed to identify a specific promise.

Moreover, as established in Rodriguez v. NY

Univ.

, “[t]he mere allegation of mistreatment

without identification of a specific breached promise

or obligation does not state a claim upon witch a relief

can be granted.”

In Fernandez v. The Wharton School, the

opposite occurred. The University broke a very

specific promise and the terms of the Fellowship and

just lied to the student. There is. also evidence

suggestive of tampering or influencing of the judicial

officer to prevent the Defendant from conducting

discovery to uncover the truth. This breach of contract

(20) Gociman v. Loyola University Chicago, No. 1-20-cw

03116 (N.D. Ill. 2020).

(21) Hassan v. Fordham University, No. 20-CV-3265 (S.D.

New York. 2021).

(22) Rodriguez v. NY. Univ., No. 05-CV7374, 2007 WL

117775 (S.D.N. Y. 2007)

is egregious and not subjective, with very specific

documented false

statements

and lies

the

correspondence with the student. This resulted in a

loss of $10,000 for the student, loss of the prestige of

the fellowship, loss of future career opportunities and

other serious damages.

This is something very serious that impacts the

integrity of the entire Ivy League and our nation’s

highest important academic institutions.

As established in Mindek v. Rigatti

(23)

“dismissal is a harsh remedy and should only be

resorted to in extreme cases.” As established in Gross

v. German Found Indus. Initiative(24), the Court must

accept the truth of all factual allegations in a

complaint and must draw all reasonable inferences in

favor of the Plaintiff

Furthermore, as established in Conley v.

Gibson

(25)

, a 12(b)(6) motion must be denied “unless

it appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which would

entitle him to relief.”

(23) Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992).

(24) Gross v. German Found Indus. Initiative, 549 F.3d 605,

610 (3d Cir. 2008).

(25) Conley v. Gibson, 355 U.S. 41 (1957).

In this case, it was not beyond doubt that there

were no set of facts that could be procured to support

the claims of the Plaintiff. Certainly, discovery should

have been allowed to occur to determine the truth as

there were false statements in the correspondence

between the student and Wharton administrators.

Under Pennsylvania law, to decide if a contract

is enforceable, it must be determined “(l) whether

both parties manifested an intention to be bound by

the agreement!

(2) whether the terms of the

agreement are sufficiently definite to be enforced; and

(3) whether there was consideration.” See ATACS

Corp. v. Trans World Commc’ns, Inc.

(26)

In this case, the Judge broke ground with

federal case precedent and ruled that a contract was

not set in place relating to “specific and identifiable

promises that the school failed to honor.” Certainly,

the published Official MBA Academic Policies of the

University

are

very

“specific

promises”

and

meet

the

and

identifiable

requirements

of the

“bulletins, circulars and regulations made available to

the student” definition as outlined in the Gaily v.

Columbia University

(27)

precedent.

(26) ATACS Corp. v. Trans World Commc’ns, Inc., 155F.3d

659, 666 (3d Cir. 1998).

(27) Gaily v. Columbia University, 22 FSupp.2d 199, 206

(S.D.N.Y. 1998).

Additionally, the breach of contract behavior in

Fernandez v. The Wharton School was an even more

flagrant

violation

of “specific

and

identifiable

promises” than the Reynolds v. The University of

Pennsylvania

(28)

precedent,

where

the

alleged

misrepresentation related to “subjective matters”

such as “not benefiting from the Wharton brand.”

Furthermore, Reynolds was caught by the

University falsifying actual physical evidence because

his case was so weak, but he was still allowed to

progress with discovery and ultimately prevailed in

his breach of contract claim with the University

receiving substantial compensation.

In Fernandez v. The Wharton School, there are

documented false statements by the Dean of the

school relating to something as important and

prestigious as a Valedictorian Scholarship. Despite

this, Fernandez was not even afforded the opportunity

to conduct discovery, even with this Reynolds

precedent in place.

Furthermore, the Plaintiff was in compliance

with all the terms of the Court. The Plaintiff even

received emailed physical correspondence from the

Judge’s staff stating that a Case Management

(28) Reynolds v. The University ofPennsylvania, 684 F

Supp. 2d 621 (E.D. Pa. 2010).

Conference date would be scheduled and discovery

would be allowed to take place. The Plaintiff was

showing a pro-active willingness to conduct discovery

and attend the Case Management Conference.

Suspiciously and at the very last minute,

without anything changing and without the Plaintiff

violating any order of the Court, the Suit was

dismissed with prejudice by the Judge, suggestive of

some type of outside collusion or influence.

Unlike in Ware v. Rodale Press, Inc.

Pik v. University of Pennsylvania

(30)

(29)

or Jiri

where the

Plaintiffs were allowed to conduct discovery, but

failed to show up or continue to prosecute and conduct

such discovery, the opposite occurred in Fernandez v.

The Wharton School. The Court inappropriately

dismissed

his

Suit

despite

him

showing

pro

activeness in discovery and despite him being in

compliance with all the conditions of the Court. This

is very suspicious.

Additionally, “when ruling on a defendant’s

motion to dismiss, a judge must accept as true all of

the factual allegations contained in the complaint”

(29)

Ware v. Rodale Press, Inc., 322 F 3d 218, 222-23 (3d

Cir. 2003).

(30) Jiri Pik v. The University ofPennsylvania, No. OS5164 (E.D. Pa. 2011).

and allow lawful discovery to occur to corroborate

information and expose new facts. See Erickson v.

Pardus (31) and Dixon v. United States. (32)

Additionally, “[f]or the purpose of resolving [a]

motion to dismiss, the Court...draw[s] all reasonable

inferences in favor of the plaintiff.” See Daniel v. T&M

Prot. Res., Inc. (33) and Koch v. Christie’s Int’l PLC.

(34)

Furthermore, given the Plaintiff proceeded pro se, the

Court must “construe [a Complaint] liberally and

interpret [it] to raise the strongest argument that [it]

suggests.” See Sykes v. Bank of America

Farzan v. Wells Fargo Bank, N.A.

(35)

and

(36)

Even if applying the strict interpretation of

precedent case law established in Bell v. Jendell

that “the liberal treatment afforded to pro se litigants

does not exempt a pro se party from compliance with

relevant rules of procedural and substantive law” or

(31) Erickson v. Pardus, 551 U.S. 89, 94 (2007).

(32) Dixon v. United States, No. 13-CV-2193, 2014 WL

23427, (S.D.N.Y. Jan. 2, 2014).

(33) Daniel v. T&M Prot. Res., Inc., 992 F. Supp. 2d 302,

304 n. 1 (S.D.N. Y. 2014).

(34) Koch v. Christie’s Inti PLC, 699 F.3d 141, 145 (2d

Cir. 2012).

(35) Sykes v. Bank ofAmerica, 723 F. 3d 399, 403 (2d Cir.

2013).

(36) Farzan v. Wells Fargo Bank, N.A., No. 12-CV-1217,

2013 WL 6231615, (S.D.N.Y. Dec. 2, 2013).

(37)

in Caidor v. Onondaga Cty.(38) that “[p]ro se litigants

generally

are

required

inform

themselves

regarding procedural rules and to comply with them,”

the dismissal of the complaint at such an early stage

in Fernandez v.

The Wharton School was not

warranted.

Fernandez was in compliance with the Court at

the time and was showing proactive and diligent

willingness to conduct discovery and abide by court

protocol. Additionally, despite promises made to

Fernandez that he would be able to conduct formal

discovery, his Complaint was suspiciously dismissed

at such an early stage, further impeding his ability to

uncover facts and subpoena testimony from witnesses

to support his case and discover “outside material and

facts.”

As established in Walker v. Schult

(39)

, when

deciding a motion to dismiss a pro se complaint, it is

appropriate to allow discovery to occur to allow a

plaintiff a chance to proceed to trial and additionally

to allow him to introduce “materials outside the

complaint” to further solidify his position and uncover

(37) Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N. Y 2013).

(38) Caidor v. Onondaga. Cty, 517 F. 3d 601, 605 (2d Cir. 2008).

(39) Walker v. Schult, No. 12-1806 (2d Cir. 2003).

the truth in opposition motions (noting that a court

may consider “factual allegations made by a pro se

party in [his] papers opposing the motion”).

For all the above-mentioned reasons, the Court

erred in its 12(b)(6) dismissal of Fernandez v. The

Wharton School of the University of Pennsylvania at

such an early stage in the litigation process and

impeded the ability of the student to conduct

discovery and uncover meaningful facts important to

upholding and preserving the integrity of the Ivy

League.

This Court’s intervention is necessary to

enforce and uphold the integrity of the Ivy League and

to set much needed federal case precedent in the

burden of standard for 12(b)(6) dismissals and in

collegiate and post-secondary educational breach of

contract claims.

VII.

CONCLUSION AND PRAYER FOR RELIEF

There

nothing

important

than

preserving the integrity of the Ivy League and rooting

out unethical and corrupt behavior in post-secondary

education in the United States of America.

When it comes to something as important as a

Valedictorian Fellowship or Scholarship at one of the

nation’s leading institutions of higher education, it is

absolutely critical that the rules are followed, that

tampering is condemned and punished and that the

integrity of the fellowship process is maintained.

This petition for a writ of certiorari should be granted.

DATED this 25th day of March 2021.

Respectfully Submitted,

KEITH M. FERNAN

Counsel of Record, Pro Se

1713 Bridgewater Dr

Lake Mary, Florida 32746

321.666.9000 voice

biblema tthewd. 5@smail. 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.