Petition for Writ of Certiorari — Joseph H. Martin, Petitioner v. Department of Homeland Security

20 No.

“91

20-

FILED

JUL 0 6 2020

MjPf?FEMEFOn{u3TL^K

In the

Supreme Court of the United States

Joseph H. Martin,

Petitioner,

V.

Department of Homeland Security,

Respondent,

On Petition for a Writ of Certiorari to the

United States Court of Appeals

For the Federal Circut

PETITION FOR WRIT OF CERTIORARI

Joseph H. Martin Pro Se

1810 East Blacklidge Drive APT# 813

Tucson, AZ. 85719

RECEIVED

JUL 1 4 2020

i

QUESTIONS PRESENTED

Weather the 4th amendment to the constitution

of the United States protects speech in my

personally rented hotel room; my home for the

period of rental time.

Weather the United States Labor Management

Relation Statute (5USC71) protects all Federal

Bargaining Unit Employee Members speech

during a Union meeting, including the speech

of their Elected Union Officials.

Weather the 1st amendment to the constitution

of the United States protects opinionated

speech in my personally rented hotel room; my

home for the period of rental time.

Weather the United States Federal Circuit

Court of Appeals Violated its own long standing

precedent setting case decisions that now

requires this court to exercise its supervisory

powers.

2

Weather the United States Federal Circuit

Court of Appeals Violated this courts’ long

standing precedent setting case decisions that

now

requires

this

supervisory powers.

3

court

to

exercise

its

PARTIES TO THE PROCEEDINGS

Joseph H. Martin, Petitioner here, was the

petitioner in the court of appeals.

Department of Homeland Security here, was

the respondent in the court of appeals.

4

TABLE OF CONTENTS

QUESTIONS PRESENTED

2,3

PARTIES TO PROCEEDINGS

4

TABLE OF AUTHORITIES

6,7

OPINIONS BELOW

8

JURISDICTION

9

INTRODUCTION

9

STATEMENT

11

REASON FOR GRANTING THE PETITION

24

APPENDIX A—Court of appeals En Banc Ruling

(June 12, 2020)

la

APPENDIX B—Court of Appeals Panel Ruling (April

20, 2020)

3a

APPENDIX C—Administrative Law Judge’s Final

Decision (November 28, 2018)

5

12a

TABLE OF AUTHORITIES

CASES

O’Keefe V US. Postal Service, United States Court

of Appeals, Federal Circuit, 318 F. 3d 1310 (Fed. Cir.

2002)

12,16,19

Brook v. Corrado, 999 F.2d523, 526*27 (Fed. Cir.

1993)

12,16,19

Lachance v. Merit Sys. Prot. Bd., 147 F. 3d 1367,

1371

(Fed. Cir. 1998)

12,16,19

Mclntire v. Fed. Emergency Mgmt. Agency, 55

M.S.P.R. 578, 583 n. 4 (1992)

12,16,19

Riley v. Dep’t of the Army, 53 M.S.P.R. 683, 688

(1992)

12,16,19

Shaw v. Dep’t of the Air Force, 80 M.S.P.R. 98, 106*

07 (1998)

12,16,20

Gottlieb v. Veterans Admin., 39 M.S.P.R. 606, 609*10

(1989)

20

Katz V. United States, U.S. Supreme Court., 389 U.S.

347.

12,13,16,18,25

6

Douglas vs Veterans Administration et al, 5 MSPB

313 (1981)

13,16,24

7

In The

Supreme Court of the United States

Joseph H. Martin,

Petitioner,

V.

Department of Homeland Security,

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

Joseph H. Martin respectfully petitions for a writ of

certiorari to review the decisions of the United States

Court of appeals for the Federal Circuit in this case.

OPINIONS BELOW

The Federal Circuit’s En Banc decision reported at

Appendix la.

The Federal Circuit’s Panel decision

reported at Appendix 3a. The Merit System Protection

Board (MSPB) Administrative Judge final decision

reported at Appendix 12a.

8

JURSIDICTION

The en Banc Federal Circuit Court of Appeals

entered its Decision on June 12, 20205 Petition at

Appendix la.

This Courts Jurisdiction is invoked

under 28 U.S.C 1254(l)

INTERDU CTION

In my case, the United States Federal Circuit

Court of Appeals denied my petition for a Rehearing

En Banc (la), thereby the court violated both their

long standing case precedent law, as well as

case

precedent setting law from this Court, with the

courts’ initial decision (3a) on my appeal from the

Merit System Protection Board (MSPB) termination

decision in my case (12a).

Therefore, their actions

beg for this court to exercise its

supervisory

authority.

The Questions presented are of extreme importance

to all citizens of the United States and all Unions,

especially the Federal sector Unions. Their decisions,

9

if not reversed, will deprive all United States Citizens

of their 1st and 4th amendment protections while in

their personal residence! in my case — my personally

rented Hotel room, and will directly affect all Federal

Employees rights to due process, as well as seriously

erode all Unions’ ability to hold confidential union

meetings with their members, without Government

interceptiong and/or intrusion, as well as advocate for

their Bargaining Unit members.

This Courts

intervention is essential to restore constitutional and

statutory rights that were eviscerated by the Federal

Circuit Court of Appeals in their decision on my case

and their subsequent denial of my petition for a

Rehearding En Banc (la) and (12a).

For

these

reasons,

granted.

10

Certiorari

should be

A. STATEMENT

The Federal Circuit Court of Appeals Panel

violated its own rules under rule 35 C when it denied

my request for a Rehearing En Banc (la), as the

Panels’ initial decision (3a) conflicted with Supreme

Court

Law

and

moreover,

failed

to

maintain

uniformity of previous Fedeal Circuit Court of

Appeals decisions.

The Civil Service Reform Act (CSRA) of 1978

protects Federal Employees from illegally imposed

administrative actions and allows Federal Employees

the ability to appeal any adverse action to the Merit

System Protection Board (MSPB), where the MSPB is

required to uphold the CSRA and reverse any

adverse action taken against a Federal Employee

that is not in accordance with the CSRA, Federal or

State Law.

In my case, the MSPB Administrative

Judge (AJ) did not follow the MSPB’s own case law

and deliberately deviated from the CSRA when the

MSPB AJ upheld my termination from the US

11

Department of Homeland Security (DHS) (12a).

Aside from “not” allowing illegally obtained evidence;

which the MSPB AJ did in mu case, the MSPB AJ’s

decision must be based solely on the charge alleged

within the Agency’s

Notice of Action, and the AJ

cannot substitute what the AJ considers to be a

better basis for a charge! which the MSPB AJ did in

my case. Furthermore, the Federal Circuit Court of

Appeals panel (The Panel), in their denial of my

MSPB case decision appeal (3a), merely regurgitated

the MSPB AJ’s decision wordage (12a); including

wordage that was “not” sustained by the MSPB AJ;

concerning “providing sexual favors for Union

Representation”, and without conducting any level of

case record analysis and review, thereby also

violating their long standing Federal Circuit case law

(3a) (see O’Keefe V. US. Postal Service, United

States Court of Appeals, Federal Circuit, 318 F 3d

1310 (Fed. Cir. 2002), Brook v. Corrado, 999 F. 2d

523 (Fed.Cir. 1993) Lachance v. Merit Sys. Prot.

Bd., 147 F.3d 1367, 1371 (Fed.Cir.1998) Mclntire v.

12

Fed. Emergency Mgmt. Agency 55 M.S.P.R. 578, 583

n. 4 (1992), Riley v. Dep't of the Army 53 M.S.P.R.

683, 688 (1992), Shaw v. Dep't of the Air Force, 80

M.S.P.R. 98, 106-07 (1998) and U.S. Supreme Court.

Katz V. United States, 389 U.S. 347 and Douglas vs

Veterans Administration et al, 5 MSPB 313 (1981).

The Panel also failed to properly address my

constitutional violation of my First (1st) and Fourth

(4th) amendment protections claim, by improperly

stating in their initial decision (3a), that the

conversations

recorded

by

the

Government

Investigators, through the utilization of a Bargaining

Unit Employee as an “cooperating witness”, occurred

in a “hotel room” when in fact, as I presented in my

Petition

for

Rehearding

En

Banc

(3a),

the

Government recorded conversations I had with this

“cooperating witness”, as the Union President, was in

fact with this Bargaining Unit member during a

Union Meeting in my personally rented hotel room;

which the record reflects the Government had several

days prior knowledge that this Union meeting was to

13

be held. Therefore, the Panels’ decision violated long

standing Supreme Court Law (3a). (See. Katz V.

United States, 389 US. 347. U.S. Supreme Court)

Further, the Panel’s decision (3a) also errored in

applying the protections afforded Federal Bargaining

Unit employees under the Federal Labor Relations

Statute (The Statute) at 5 USC §7114(b)(6), by

stating that the

Statute only protects Union

Members and not elected Union Officials, which I

was during the illegally intercepted and recorded

video surveillance by the Government investigators

and their cooperator, which was used as evidence to

support my termination of employment with DHS.

B.

FACTUAL

AND

PROCEDURAL

BACK

GROUND.

I was Honorably discharged from the U.S.

Army in June of 1993. I began my employment with

the U.S. Immigration and Naturalization Service in

that same month.

The U.S. Immigration and

Naturalization service was later merged into U.S.

14

Customs and Border Protection under the U.S.

Department of Homeland Security. During my time

as a Federal Employee I served in many capacities

within the Federal Unions of both Agencies. In my

termination case, I was Charged with three charges:

Charge 1 was Conduct Unbecoming a Customs and

Border

Protection

Officer;

of which

only

one

specification was upheld, Charge 2 was Lack Of

Candor, again of which only one specification was

upheld, and Charge 3 was Failure to Follow a NonDisclosure Warning, also where only one specification

was

upheld.

The

decision

by

the

Federal

CircuitCourt of Appeals Panel (3a), as well as their

denial of my request for a Rehearing an En Banc (la),

were entirely in error as I presented, and the record

holds, more than a substantial level of evidence to

support outright vacation of my case in its entirety.

Further, the Federal Circuit Panel’s decision in my

casce was in direct conflict with their own and this

Supreme Court of the United States past precedent

case decisions! Horizontal stare decisi, and involves

15

issues that are of extreme importance to all Federal

Government Employees and in fact, all citizens of the

United States.

In my judgement regarding Charge 2 of Lack of

Candor, the Federal Circuit Panel’s decision is

contrary to the following U.S. Supreme Court, Court

of Appeals for the Federal Circuit and MSPB

precedent cases under:

O’Keefe V

U.S. Postal

Service, United States Court of Appeals, Federal

Circuit, 318 F. 3d 1310 (Fed. Cir. 2002), Brook v.

Corrado, 999 F. 2d 523 (Fed.Cir. 1993) Lachance v.

Merit

Sys.

Prot.

Bd., 147

F.3d

1367,

1371

(Fed.Cir. 1998) Mclntire v. Fed. Emergency Mgmt.

Agency, 55 M.S.P.R. 578, 583 n. 4 (1992), Riley v.

Dep't of the Army, 53 M.S.P.R. 683, 688 (1992), Shaw

v. Dep't of the Air Force, 80 M.S.P.R. 98, 106-07

(1998) and Katz V. United States, U.S. Supreme

Court 389 U.S. 347 and Douglas vs Veterans

Administration et al, 5 MSPB 313 (1981).

16

It is my judgement that the Federal Circuit Court of

Appeals and the MSPB AJ [the Board] abused their

discretion under Charge 1, Conduct Unbecoming a

Customs and Border Protection Officer (CBPO). The

conversation that was video recorded and used as

evidence

to

sustain

Charge

1

took

place

in

my personally rented hotel room, my home for the

evening, and therefore any activity within my home,

as long as it is not criminal in nature! and the record

show in my case there was “zero” criminal behavior

on mv part throughout my entire Hotel room stay on

July 8,

2015, is fully protected by my U.S.

Constitutional Rights under the First (1st) and

Fourth (4th) Amendments to the U.S. Constitution, as

I had a reasonable expectation of privacy and am free

to voice my personal opinion on any matter. Neither

the Federal Circuit nor the MSPB A.J. addressed the

issues

properly because both

referred to

the

conversation as taking place in a hotel room!

implying someone else’s room or even implying in a

public area of the Hotel, which was not the case at

17

all.

Further, the Agency investigator in charge;

Department of Homeland Security (DHS) Office of

Inspector General (OIG) Senior Special Agent (SSA)

Sara Arrasmith, admitted under oath during the

MSPB hearing that the Agency did not have a legal

authority to be present in my personally rented Hotel

room and that they did not have a legally executed

search warrant. Further, the record reflects that

SSA Arrasmith, and her cooperating witness, both

knew “days prior” that the meeting being held in my

personally rented hotel room was a Union Meeting,

protected under the Fedeal Labor and Management

Relations Statute (5USC71). I also presented these

same arguments of a violation of my First and Fourth

Amendment Rights and violation of 5USC71 on the

record during my Oral Reply to my proposed

termination on March 28, 2017, and both the Federal

Circuit and the MSPB AJ errored in not fully

reviewing the record and applying these legal

precedents I provided (See . Katz V United States,

389 U.S. 347 U.S. Supreme Court).

18

Under Charge 2, Lack of Candor, and based on my

judgment, the Federal Circuit was required to answer

these closely related and precedent-setting questions

of exceptional importance: The MSPB AJ abused his

discretion and the Federal Circuit errored by

modifying the scope of the sustained Specification, as

written, in both the Notice of Proposed Removal and

the

Removal

Action.

Only

[the

charge]

and

specifications set out in the Notice and Decision may

be used to justify punishment because due process

requires that an employee be given notice of the

charges against him in sufficient detail to allow the

employee to make a fully informed reply.

The

evidence is clear that the specification under Charge

2, that was sustained by the MSPB AJ and upheld by

the Federal Circuit, was a modified Specification and

was not described fully or accurately, as written in

the Notice and Decision Letters removing me. See

O’Keefe V U.S. Postal Service, United States Court

ofAppeals, Federal Circuit, 318 F. 3d 1310 (Fed. Cir.

2002)Brook

v.

Corrado, 999

19

F.2d

523,

526-27

(Fed.Cir. 1993); Lachance v. Merit Sys. Prot. Bd., 147

F.35 1367, 1371 (Fed.Cir. 1998). The Board's review

of the agency's decision is likewise limited solely to

the grounds invoked by the agency. Mclntire v. Fed.

Emergency Mgmt. Agency, 55 M.S.P.R. 578, 583 n. 4

(1992) (stating that the Board will not consider

allegations of misconduct related to the charges

"because they were not specified in the agency's

proposal notice"); Riley v. Dep't of the Army, 53

M.S.P.R.

683,

688

(1992)

(finding

that

the

administrative judge erred by sustaining a charge

that was not specified by the agency). In my case, the

Proposal Notice and Decision differed greatly in

substance (“Should vs Must”), which alone is a

reversible error.

More importantly and relative to

my case, is that the Board may not substitute what it

considers to be a better basis for removal than what

was identified by the Agency and the Panel errored in

Affirming this “modified” Specification. See Shaw v.

Dep’t of the Air Force, 80 M.S.P.R. 98, 106-07 (1998)

("The Board cannot adjudicate an adverse action on

20

the basis of a charge that could have been brought

but was not.

Rather, the Board is required to

adjudicate an appeal solely on the grounds invoked

by the agency, and it may not substitute what it

considers to be a more appropriate charge."; Riley; 53

M.S.P.R. at 688; Gottlieb v.

Veterans Admin., 39

M.S.P.R. 606, 609-10 (1989) (reversing a judge's

adjudication that the agency proved a charge on

different grounds than those stated in the charge

itself). By accusing me of specific misdeeds that were

not specifically identified and within the full scope of

the Notice of Proposed Removal and Removal

Decision, the MSPB AJ [The Board] exceeded the

scope of his authority and the Federal Circuit

Affirmation of the Board’s decision was in error, by

their not following both their own precedent setting

case law, in sustaining Charge 2. Further, the MSPB

AJ and Federal Circuit failed to properly and fully

apply the evidence presented by the Agency in

considering the on the record document evidence and

testimony provided during the Agency case and

21

MSPB Hearing, as there is no evidence whatsoever in

this entire easel Preponderance or Substantial, that

supports the Specification that I “implied” that

female employees should or must “provide [me]

sexual favors in exchange for Union Representation”.

Further, the lack of specificity in the Notice and

Decision as to the full details of the actual questions

directed toward me, and my actual full responses

thereto, indicates that the Agency attempted to use a

General Charge under a Charge and Specification

format, neither of which were supported by the

evidence

at

all,

by

Substantial standards.

either

Preponderance

or

In fact, there is evidence

provided by one undercover cooperating employee,

Mrs. Cynthia DeMara, that she knew my use of

“Brash language” and comments, as described by the

AJ and with which I was not charged, were in fact

“Jokes” and “Joking”, which was and remains

common workplace banter at the location we both

were assigned to, as was also testified to by the

Deciding Official, Hector Mancha, during the MSPB

22

Hearing. Likewise, the MSPB AJ did not apply the

same review standard here, as he did in not

sustaining the two other specifications under Charge

1 which had the exact same language concerning

“providing sexual favors in exchange for Union

Representation”, which leads me to believe that the

AJ deviated from the Specification under Charge 2

deliberately, and the Federal Circuit errored in

affirming the decision, without conducting a full

review of the case evidence.

3) It is my judgement that the MSPB AJ did not

apply all the facts and evidence, and/or failed to

properly apply the facts and evidence, and the

Federal Circuit errored in upholding the Specification

under Charge 3.

The undisputed facts within the

hearing evidence are clear and was admitted to,

under oath, during the MSPB Hearing by the DHS

Senior

Special Agent

in

charge

of my

case

investigation! Sara Arrasmith, that Mr. James Y.

Tong; was involved in and had full knowledge of the

23

Investigation by DHS, and coordinated the schedules

of Cynthia Demara and Zeidy Loyoza for the illegal

surveillance conducted in my personally rented Hotel

room. Thus, just as the other Specifications under

Charge 31 concerning Mr. DiBene and Mr. Perez were

not upheld by the MSPB AJ, neither should the

Specification concerning Jimmy Tong be upheld, as

the MSPB AJ and the Federal Circuit both errored by

not applying the evidence and law equally to all the

Specifications under Charge 3 (See Douglas vs

Veterans Administration et al, 5 MSPB 313 (1981).

REASONS FOR GRANTING THE PETITION

In summation, I would like to add the fact that the

record evidence is clear, from the date of the illegal

surveillance in my personal Hotel room on July 8,

2015 and up until I received my Notice of proposed

removal in February 2017, the Respondent never lost

trust in me as I performed the full range of duties of

my position as a CBPO Prosecutions Officer, where I

took oath affirmations, signed sworn affidavits and

24

presented and testified in criminal cases on behalf of

the Government [Agency], within the District of

Arizona (See Douglas vs Veterans Administration et

al, 5 MSPB 313 (1981).

Further, it is also my

judgement that the Supreme Court should grant this

petition because, in addition to the aforementioned

issues, this case presents several questions of

exceptional importance regarding the Constitutional

over-reach by investigative entities, Federal Agency

Managers

and

“undercover”

Bargaining

Unit

Employees, as well as several serious harmful errors,

due process violations and abuse of authority by the

MSPB AJ, affirmed by the Federal Circuit Court of

Appeals.

These questions of have resulted in a

severe, exceptional and direct impact; and is now

highly important to every Federal employee within

the U.S. Government; numbering in the hundreds of

thousands (See. Katz V United States, 389 U.S. 347

U.S. Supreme Court)

25

DATED this 7h day of July 2020.

Josepn H. Martin, Petitioner, Pro Se

Attachment (la)

Court of Appeals for The Federal Circuit Decision

Denying a Rehearing En Banc under Case Number

2019-1578 (Joseph H. Martin v Department of

Homeland Security), Dated June 12, 2020.

Attachment (3a)

Court of Appeals for The Federal Circuit Decision

under Case Number 2019-1578 (Joseph H. Martin v

Department of Homeland Security), Dated April 20,

2020.

26

Attachment (12a)

Final Decision of the Merit System Protection Board

(MSPB) Administrative Law Judge (AJ) upholding

my termination from the Department of Homeland

Security (DHS), under Case Number 2019-1578

(Joseph H. Martin v Department of Homeland

Security), Dated November 28, 2018.

27