Petition for Writ of Certiorari — Henry E. Gossage, Petitioner v. Merit Systems Protection Board

No.

In the

SUPREME COURT

OF THE UNITED STATES

HENRY E. GOSSAGE,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD (MSPB),

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

Henry E. Gossage

Petitioner, Pro Se

9421 Johnson Pt. Lp. NE

Olympia, WA 98516

(360) 951-7826

hegossage@gmail.com

QUESTIONS PRESENTED

Given every appellate court has a special obligation to satisfy itself not only of

its jurisdiction but also that of the lower courts in a cause under review and the

Constitution is the paramount law. The Federal Circuit has jurisdiction to review all

aspects of Petitioner’s Constitutional claims and under 5 U.S.C. §§’s 702, 704,

7701, 7703; 28 U.S.C. § 1295(a)(9); 5 CFR § 300.104, 5 C.F.R. § 731.501, 5 C.F.R. §

1201 et seq., and Federal Rules of Civil Procedure 60.

This petition centers on the Lower Court’s Jurisdiction, based on newly

discovered evidence from Office of Personnel Management (OPM) Lead Suitability

Specialist Kimberly Truckley’s December 27, 2004, new and final Amended

decision, Overturning and Vacating Karen McCue’s May 16, 2001, initial negative

suitability determination.

The Questions presented:

1. Whether Petitioner has standing to correct a jurisdictional error

before the Lower Courts for “want of jurisdiction” or “jurisdiction on

the merits”, based on OPM’s December 27, 2004, final decision?

2. Whether the Federal Circuit has Jurisdiction from the Clerk of the

Merit Systems Protection Board decision, “Mr. Gossage had no further

right to review in those matters”, based on OPM’s final decision?

3. Whether the Federal Circuit has Jurisdiction or “lacks jurisdiction” to

determine its original and lower court’s jurisdiction in OPM

Investigation Case 01-904-277 and its December 27, 2004 final

decision, vacating/overturning OPM’s May 16, 2001, initial decision?

4. Whether Due Process is violated, when Petitioner is denied the right to

appeal, based on new and material evidence, removing the Lower

Court’s 5 C.F.R. § 1201.3 jurisdiction?

ii

PARTIES TO THE PROCEEDINGS

Petitioner, Henry E. Gossage was the Petitioner in the Merit Systems

Protection Board in OPM Investigation Case No. 01-904-277 and MSPB appeals in

SE-0731-01-0261-1-2 SE-0731-01-0261-I-2, SE-0731-01-0261-I-3, SE-0731-01-02611-4 , SE-0731-01-0261-1-5, SE-0731-01-0261-M-1; and in the U.S. Court of Appeals

for the Federal Circuit in USCA Case No. 2005-3155, 2018-1970, and 2020-2171.

The Merit Systems Protection Board and the Office of Personnel

Management were the Respondent in the same cases and actions noted above. No

other relevant parties are represented in the instant matter.

TABLE OF CONTENTS

Page

Questions Presented

Parties to the Proceedings

Table of Contents

Table of Authorities

Opinions below

Jurisdiction

Statutory provisions involved

Statement

Reasons for granting the petition

Conclusion

Appendix Index

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

i

n

n

m

1

1

2

2

21

34

A-l

A-2

A-9

A-27

A-38

A-40

iii

TABLE OF AUTHORITIES

Accardi v. Shaughnessy, 347 U.S. 260 (1954)

10

Adamek v. U.S.P.S., 13 M.S.P.R. 224 (1982)

3

Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001)

11

Anderson v. U.S.P.S., 24 M.S.P.R. 488 (1984)

affd, 776 F.2d 1060 (F.Cir. 1985) (Table);

3

Bellecourt v. United States, 994 F.2d 427 (CA8 1993)

8

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986)

9

Billy G. Asberry v. U.S.P.S., 692 F.2d 1378 (F.Cir.1982)

8

Brazos Elec. Power Coop. u. United States, 144 F.3d 784 (F.Cir. 1998)

10

Brown v. Keene, 33 U.S. 112 (1834)

7

Califano v. Sanders, 430 U.S. 99 (1977)

11

Callen v. Pennsylvania Railroad Co., 332 U.S. 625 (1948)

8

Camreta v. Greene, 563 U.S. 692 (2011)

12

Cf. Romano v. Oklahoma, 512 U.S. 1 (1994).

10

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971).

8

Cleveland Bd. of Educ. v Loudermill, 470 U.S. 532, 541, 546 (1985).

10

Consolidation Coal Co. v. United States, 351 F.3d 1374 (F.Cir.2003);

11

Cushman v. Shinseke, 576 F.3d 1290, 1300 (F. Cir. 2009)

3

Earth Island Institute v. Madeleine K. Albright, 147 F.3d 1352 (F. Cir. 1998)

12

Gonzales & Gonzales Bonds and Insurance Agency v. Dept. Of Homeland Security,

490 F.3d 940, 944 (F.Cir. 2007)

11

iv

Haines v. Kerner, 404 U.S. 519 (1972)

12

Hazel-Atlas Co. v. Hartford Co., 322 U.S. 238 (1944)

8, 9

In the Matter of the Fee Agreement of Bruce Tyler Wicke v. Jesse Brown,

Secretary of Veterans Affairs, 40 F.3d 367 (Fed. Cir. 1994)

11-12

Kyles v. Whitley, 514 U.S. 419 (1995)

10

Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379 (1884)

8

Matthews v. United States, 13-5109 (Fed. Cir. 2014)

11

Motor Vehicle Ass'n v. State Farm Auto. Ins. Co., 463 U.S. 29 (1983).

9, 10

Perry v. Merit Systems Protection Bd., Docket 16-399; 2017 U.S. LEXIS, 4044

12

Richardson v. Perales, 402 U.S. 389, 401-02 (1971)

10

Roche v. United States Postal Serv., 828 F.2d 1555, 1558 (F.Cir. 1987)

11

Standard Oil Co. v. United States, 429 U.S. 17, 19 (1976) (per curiam)

12

Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (1998)

7, 11

United States v. Munsingwear, Inc., 340 U.S. 36 (1950)

12

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010)

8

Vesser v. Office of Personnel Management, 67 M.S.P.R. 239,

aff'd, 73 F.3d 381 (F. Cir. 1995)

12

V

FEDERAL STATUTES and REGULATIONS (2000)

United States Constitution V

passim

5 U.S.C. § 702

1, 2, 11

5U.S.C. §704

1,2

5 U.S.C. § 706

1

5 U.S.C. § 2302

1, 2, 10

5 U.S.C. §3318

1, 4-6

5 U.S.C. § 3330a

1

5 U.S.C. § 7701

1, 2, 12

5 U.S.C. § 7702

1

5 U.S.C. § 7703

1-3, 8, 11

28 U.S.C. § 1254

1

28 U.S.C. § 1295

1,3

28 U.S.C. Appendix - Rules of Civil Procedure

1, 2, 12

38 U.S.C. §4311

1

38 U.S.C. § 4324

1,2

5 C.F.R. § 300.103 (2001)

1

5 C.F.R. § 300.104 (2001)

2

5 C.F.R. § 731 et seq.

passim

5 C.F.R. § 731.202

5 C.F.R. § 731.404

5 C.F.R. § 731.501

5 C.F.R. § 1201 et seq.

5 C.F.R. § 1201.3

5 C.F.R. § 1201.117

3-5

5

2-4, 8-11

passim

2,8

11, 12

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Henry Eugene Gossage respectfully petitions for a writ of certiorari to

review “lack of jurisdiction”, the judgment of the United States Court of Appeals for

the Federal Circuit.

OPINIONS BELOW

The Mandate and Orders of the United States Court of Appeals for the Federal

Circuit (Appendix A 1-3) is unreported. The MSPB Western Regional Office May 8,

2020 Letter is unreported (Appendix B-3). The September 27, 2004, Merit Systems

Protection Board (“Board”) Order is reported, 97 M.S.P.R. 366, and the April 22,

2002, Administrative decision is unreported (Appendix B 1-2).

JURISDICTION

The Order of the Court of Appeals dismissed was entered on February 18, 2020,

stating “the court does not have jurisdiction”. The petition for a writ of certiorari

was filed on April 20, 2020. The jurisdiction of this Court rests on 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

See Appendix, infra, for pertinent text of statutes and regulations are reproduced at

Petitioner’s Appendix E. U.S. Constitution V; 5 U.S.C. §§’s 702, 704, 1204, 2302(b),

7701-7703; 28 U.S.C. §§’s 1254, 1295, 2106, Appendix (FRCP 60); 5 U.S.C. §§’s 3318;

3330a (a)(1)(A); 38 U.S.C. §§’s 4311, 4324; 5 C.F.R. § 300.103-104, 5 C.F.R. §

332.406, 5 C.F.R. §§’s 731, 1201, 1208 et seq.

2

I.

STATEMENT

This petition is about Petitioner’s U.S. Constitutional Due Process rights in

Office of Personnel Management (OPM) Investigation Case 01-904-277 and OPM’s

Lead Suitability Specialist Kimberly Truckley’s (Appendix C, p. A 28, 33) December

27, 2004, final decision and the Lower Court’s Jurisdiction. The MSPB and Federal

Circuit long-standing refusal to acknowledge OPM’s December 27, 2004, Final 5

C.F.R. § 731.501 OPM decision, Overturning and Vacating Karen McCue’s May 16,

2001 (Appendix D-l, p. 35), initial negative suitability decision, removing 5 C.F.R. §

1201.3(a)(7) appellate jurisdiction. The Lower Court’s may not substitute its

Judgment for that of the agency. The Courts Original Jurisdiction attaches at the

time an appeal is filed and remains open throughout the litigation.

Petitioner filed a new and independent appeal to MSPB on May 6, 2020.

Petitioner appealed, OPM’s December 27, 2004, Final 5 C.F.R. § 731 et seq.

decision, Employment Practices, FRCP 60, 5 C.F.R. § 300.104; Prohibited Personnel

Practices, 5 U.S.C. § 2302, VEOA, and USERRA MSPB on May 6, 2020. Petitioner

has the right to judicial review and this Court and Lower Courts have jurisdiction.

See U.S. Constitution, 5 U.S.C. § 702, § 704, § 706, § 7701, § 7703, Federal Rules of

Civil Procedure 60, 5 U.S.C. § 4324, 5 C.F.R. § 1201 et seq.

Pro se Petitioner raises a question of bias from the Court below when the

Lower Court have predicated all of its decisions on OPM recommendations. In the

FIRST instance, OPM substituted a VACATED agency decision (App. D-l, p. A-38)

in Federal Circuit 2005-3155 to obtain a favorable judgment,

3

“thus we agree with OPM that remand is now appropriate, for

determination of whether OPM's May 2001 decision was an appealable

constructive negative suitability determination and, if so, whether OPM's

decision is supported by substantial evidence.”

In the SECOND instance, Pro se Petitioner submitted OPM’s December 27, 2004,

new and material final decision (App. C, p. A 28, 33), Vacating the agency’s May 16,

2001 (App. D, p. A 35), 5 C.F.R. § 731.202(b) charges and initial decision

establishing Petitioner’s actual innocence. For the SECOND time, the Court of

Appeals was in agreement with OPM’s recommendation,

“we agree with OPM petitioner has not shown the court has

Jurisdiction over his petition”,

in OPM Investigation Case 01-904-277 and Lead suitability Specialist Kimberly

Truckley’s December 27, 2004, final OPM decision. The Federal Circuit’s

inconsistency in its jurisdiction and pro agency bias towards the pro se litigants,

used a claim processing procedure under 5 U.S.C. § 7703(b)(1), 28 U.S.C. §

1295(a)(9), and Fed. R. App. P. 25(a)(2)(A) to circumvent Review Jurisdiction of the

Appellate Court and Lower Court’s in this cause of action, is in direct conflict with

Petitioner Constitutional 5th Amendment due process rights.

This Court has jurisdiction to review the 5 C.F.R. § 1201 et seq. jurisdiction

at every level of the lower court’s from OPM’s Kimberly Truckley’s December 27,

2004, final 5 C.F.R. § 731.501 decision (App. C, p. A 31, 36) in OPM Investigation

Case 01-904-277, Federal Rules of Civil Procedure 60, and Petitioner’s 5th

Amendment due process violations. See Cushman u. Shinseki, 576 F.3d 1290 (F.

Cir. 2009).

4

OPM subjected Gossage to double punishment (1998 and 2001) for the same

5 C.F.R. § 731.202 charges and 5 C.F.R. § 731.501 suitability determination in OPM

Investigation Cases (97-900-648 and 01-904-277). OPM imposed disciplinary or

adverse action more than once for the same misconduct, Petitioner’s 1992

conviction. Anderson v. U.S.P.S., 24 M.S.P.R. 488, 491 (1984), affd, 776 F.2d 1060

(Fed. Cir. 1985} (Table); Adamek v. U.S.P.S., 13 M.S.P.R. 224, 226 (1982).

II.

FACTUAL AND LEGAL BACKGROUD

A. November 27, 2019, Letter - MSPB SE-0731-01-0261-I-2

Henry E. Gossage is an honorably discharged, service-connected disabled

Vietnam Era veteran with a 1992 felony conviction. On January 27, 1998, OPM

(OPM Case 97-900-648) disqualified and debarred Gossage until July 2000, from

federal employment for (5 C.F.R. § 731.202) the 1992 conviction. After serving

OPM’s 1998 debarment, Petitioner reapplied for initial federal employment with

OSHA. OPM’s Suitability Specialist Karen McCue notified Petitioner (5 U.S.C. §

3318, 5 C.F.R. § 731.404, OPM Case 01-904-277, Appendix D, p. A 35-40) on May

16, 2001, was disqualified and debarred for a second time from federal employment

on May 16, 2001, on the same 1992 conviction and 1998 OPM charges.

Petitioner appealed OPM’s May 16, 2001 (5 C.F.R. § 731.501), negative

suitability determination to the MSPB (SE-0731-01-0261-I-1). MSPB SE-0731-010261-1-2 (Appendix B 1-2, p. A 6-22) initial decision on April 22, 2002. The MSPB’s

initial decision became the split Board final decision on September 27, 2004.

5

ON April 21, 2011, Petitioner submitted a second Freedom of Information Act

Request (FOIA) to OPM (Appendix C). On May 25, 2011, OPM Supervisory FOIA

Specialist released new evidence, OPM Lead Suitability Specialist Kimberly

Truckley (Appendix C, p. A 24-34) December 27, 2004, VACATED OPM’s Karen

McCue’s May 16, 2001, initial negative suitability determination.

OPM’s Lead Suitability Specialist Kimberly Truckley amended (Appendix C;

p. A 28, 33) Suitability Specialist Karen McCue’s May 16, 2001, 5 C.F.R. § 731.404

initial decision (Appendix D-l, p. A 35). The agency concealed Kimberly Truckley’s

December 27, 2004, amended 5 C.F.R. § 731.404 and final OPM determination, “Do

Not Disclose Outside of OPM” (Appendix C, p. A 29, 34).

Truckley’s new and final OPM suitability decision was discovered through

Petitioner’s April 21, 2011, Freedom of Information Act Request (FOIA) to OPM. On

May 25, 2011, OPM Supervisory FOIA Specialist released OPM Lead Suitability

Specialist Kimberly Truckley (Appendix C-l, p. A 24-29) amended OPM’s Karen

McCue’s Investigation Record, included “DO NOT DISCLOSE OUTSIDE OF OPM”.

Truckley amended OPM’s McCue’s May 16, 2001, 5 C.F.R. § 731 et seq. suitability

determination, vacating its two 5 C.F.R. § 731.202 charges. OPM DID NOT provide

Petitioner with 5 C.F.R. § 731.404 or 5 U.S.C. § 3318 notification of Truckley’s

December 27, 2004, new and final suitability determination:

a. OPM December 27, 2004, new suitability determination for OSH-OO-87

and OSH-00-87-S-1 (Appendix C-l, p. A 24-29):

i.

ii.

iii.

Final Determination Acceptable

Eligibility reinstated during MSPB appeal

Debarment rescinded during MSPB appeal

6

b. OPM notified OSHA on December 27, 2004, of OPM’s Truckley’s new

and final OPM determination (Appendix C-2, p. A 30-34):

i.

ii.

iii.

Vacating Karen McCue’s May 16, 2001, negative suitability

decision and reinstating eligibility to all federal employment;

Vacating OPM’s Mark Enterline’s November 30, 2000, pass over;

Vacating OSHA November 17, 2000, request to pass over

Gossage, a preference eligible veteran, 5 U.S.C. § 3318.

Petitioner filed a new and independent MSPB appeal on December 5, 2020,

based on OPM Lead Suitability Specialist December 27, 2004, final decision,

vacating OPM’s Karen McCue’s May 16, 2001, initial negative suitability decision in

OPM Investigation Case 01-904-277. On November 27, 2020, the Clerk of the Board

Letter (Appendix B-3) was appealed to the Federal Circuit on December 5, 2020.

The Federal Circuit stated, “The Court does not have jurisdiction” (Appendix A-1).

B. September 27, 2004 - MSPB SE-0731-01-0261-1-212

Petitioner appealed OPM’s May 16, 2001, initial negative suitability

determination to the MSPB (SE-0731-01-0261-I-1). MSPB SE-0731-01-0261-I-2

1 OPM December 27, 2004, Final decision was concealed by OPM and OSHA and

unavailable at the time OPM’s May 16, 2001, decision was pending appeal.

Lead Suitability Specialist Kimberly Truckley’s New and Final OPM decision was

discovered through Petitioner’s April 21, 2011, Freedom of Information Act Request

(FOIA) to OPM. On May 25, 2011, OPM Supervisory FOIA Specialist released

OPM’s December 27, 2004, Amended New and Final Decision, VACATING and

reinstating Petitioner’s Eligibility to all federal employment, including OSHA

position OSH-OO-87, and “DO NOT DISCLOSE OUTSIDE OF OPM”. See Appendix

C-l, p. A 24-29. OPM notified OSHA of its final December 27, 2004, VACATING

Karen McCue’s May 16, negative suitability decision.

2 Lower Court Decision are all based on Karen McCue’s VACATED May 16, 2001,

initial negative suitability decision.

7

(Appendix B 1-2) initial decision on April 22, 2002, became the split board MSPB

final decision on September 27, 2004, this decision was appealed to the United

States District Court Western District of Washington at Tacoma on October 8, 2004

(04-5669RJB).

OPM argued and submitted to the USDCWWa, Karen McCue’s May 16, 2001,

in support of its 5 C.F.R. § 1201 et seq. jurisdiction transfer USDCWWa case to the

Federal Circuit (2005-3155) on March 24, 2005.

On January 25, 2006, in abeyance with OPM’s request, The Federal Circuit

Court of Appeals stated, “we agree that remand of this appeal is appropriate. The

dismissal is vacated and the case is remanded to the MSPB for further proceedings

consistent with this opinion”.1’2

On July 8, 2008, on remand from the Federal Circuit, the MSPB entered

judgment affirming OPM’s Karen McCue’s May 16, 2001, VACATED1’2 negative

suitability determination, SE-0731-01-0261-I-5. The Board affirmed on March 24,

2009, stating, “we conclude that there is NO NEW, previously unavailable evidence”

and affirmed the initial decision.1’2

REASONS FOR GRANTING THE PETITION

“It is the essential criterion of appellate jurisdiction, that it revises and.

corrects the proceedings in a cause already instituted, and does not create that

cause”. Marbury v. Madison, 5 U.S. 137, 175 (1803); Brown v. Keene, 33 U.S. 112

(1834). OPM’s usurpation of power of the Lower Court’s through trickery,

deception, or fraud by substituting a vacated decision to obtain a favorable

r

8

judgment that is void. United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260

(2010).

Jurisdiction is a threshold issue before the court and thus has broader

power to decide its own right to hear the case than it has when the merits of the

case are reached. Bellecourt v. United States, 994 F.2d 427, 430 (CA 8 1993). The

federal appellate court has a special obligation to "satisfy itself not only of its own

jurisdiction, but also that of the lower courts in a cause under review”. “We are

obliged to examine standing sua sponte where standing has erroneously been

assumed below.” Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 95

(1998); Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884). If the record

discloses that the lower courts was without 5 C.F.R. § 731.5011’2 jurisdictions, this

court will notice the defect.

The Lower Court’s waived and did not raise or consider 5 C.F.R. §

1201.3(a)(7) (2001) subject matter jurisdiction in its dismissal. The Lower Courts

Jurisdiction DEFECTS3 remain, violating Petitioner’s due process rights.

This court has jurisdiction to "set aside any agency action", 5 U.S.C. §

7703(c). Billy G. Asberry v. U.S.P.S., 692 F.2d 1378 (F.Cir. 1982). Concealment of

may not confer subject matter jurisdiction upon the federal courts by

stipulation, and lack of subject matter jurisdiction cannot be waived by the

parties or ignored by the court." Pacific Nat'l Ins. Co. v. Transport Ins. Co., 341

F.2d_514, 516 (CA8), cert, denied, 381 U.S. 912, 85 S. Ct. 1536, 14 L. Ed.

2d 434 (1965). See also Pennsylvania v. Union Gas Co., 491_U.S._1, 25, (1989)

(Stevens, J., concurring) ("may not waive a defect in subject-matter jurisdiction or

invoke federal jurisdiction simply by consent," Mitchell v. Maurer, 293 U.S. 237,

244, (1934).invoke federal jurisdiction simply by consent," Mitchell v. Maurer, 293

U.S. 237, 244, (1934).

3 «

9

material evidence by the prevailing party, OPM’s Truckley’s December 27, 2004,

final decision, resulting in a Judgment tainted by fraud, Callen v. Penn. Railroad

Co., 332 U.S. 625, 630 (1948); Hazel-Atlas Co. v. Hartford Co., 322 U.S. 238 (1944).

IF the Lower Courts DID NOT had knowledge of OPM’s December 27, 2004,

5 C.F.R. § 731.501 Final Decision, THEN OPM’s “inequitable conduct” perpetrated

Fraud on the Court. Therasense, Inc. v. Becton, Dickinson and Co., 649 F.3d

1276 (F.Cir. 2011). The “Inequitable Conduct Doctrine” was developed by this

Court, where OPM acted knowingly and deliberately with the purpose of

defrauding the Petitioner and the Lower Courts. See Precision, 324 U.S. 806, 81516 (1945) (assertion of patent known to be tainted by perjury); Hazel-Atlas, 322

U.S. 238, 245 (1944) (a "deliberately planned and carefully executed scheme to

defraud" the PTO involving both bribery and perjury); Keystone, 290 U.S. 240,

246-47 (1933), (bribery and suppression of evidence).

IF the Lower Court had. knowledge of OPM’s December 27, 2004, 5 C.F.R. §

731.501 decision, then the Lower Courts are in error in substituting its judgment

for that of the agency. The Lower Court, “may not supply a reasoned basis for the

agency’s action that the agency itself has not given .’’Motor Vehicle Mfrs. Ass'n v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (quoting SEC v. Chenery Corp., 332

U.S. 194, 196 (1947)). The reviewing court MAY NOT “substitute its judgment for

that of the agency.” Due Process is violated, when the Court substituted its

judgment for OPM’s Lead Suitability Specialist Kimberly Truckley’s December 27

10

2004, 5 C.F.R. § 731.501 decision. Citizens to Preserve Overton Park v. Volpe, 401

U.S. 402, 416 (1971).

The Appellate Court failed to consider ALL bases for Federal Circuit,

MSPB and USDC jurisdiction or lack thereof, resulting from OPM’s December 27,

2004 decision. Consolidation Coal Co. v. United States, 351 F.3d 1374, 1378

(F.Cir.2003); Bender v. William,sport Area Sch. Dist., 475 U.S. 534, 541 (1986);

“we must be satisfied that the transferee court has jurisdiction to hear the case”

Gonzales & Gonzales Bonds and Insurance Agency v. Dept. Of Homeland Security,

490 F.3d 940, 944 (F.Cir. 2007). The Appellate Court erred in failing to look

beyond the inartful substance in Pro se pleadings to circumvent jurisdiction.

Brazos Elec. Power Coop. v. United States, 144 F.3d 784, 787 (F.Cir. 1998).

This Court strongly implied that certain due process protections apply to the

adjudicative administrative proceedings, Richardson v. Perales, 402 U.S. 389, 40102 (1971). The Lower Courts unexplained inconsistency between its OPM’s McCue’s

May 16, 2001, and OPM’s Truckley’s December 27, 2004 decisions is an arbitrary

and capricious change from agency practice under the Administrative Procedure

Act. see Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 4657 (1983). OPM is bound to follow and abide by its regulations. Accardi v.

Shaughnessy, 347 U.S. 260, 267 (1954).

Due process is violated when altered evidence is submitted in a proceeding

where it infects the jurisdiction and proceedings with fundamental unfairness is

supported, “Do Not Disclose Outside of OPM”, 5 U.S.C. § 2302(b)(13). Concealment

11

evidence is sufficient to take a second look at Henry Gossage’s administrative

records and judgment of the Lower Court in OPM Investigation 01-907-277 and 98900-645. Kyles u. Whitley, 514 U.S. 419, 434 (1995); Cushman v. Shinseke, 576 F.3d

1290, 1300 (F. Cir. 2009). Cleveland Bd. of Educ. v Loudermill, 470 U.S. 532, 541,

546 (1985).

A fundamentally fair adjudication within 5 C.F.R. § 731 et seq. framework is

constitutionally required in all cases, and not just in the large majority. Cf. Romano

v. Oklahoma, 512 U.S. 1, 12-13 (1994).

The Lower Courts Denying Petitioner’s Constitutional “Right to review”

(5 U.S.C. § 702) and Reopen (5 C.F.R. § 1201.117-118, 5 U.S.C. § 7703(c)) OPM’s

Kimberly Truckley’s December 27, 2004, 5 C.F.R. § 731.501 decision.

Califano v. Sanders, 430 U.S. 99, 109 (1977). This is not one of those rare instances

where the Lower Courts denial of an appeal is challenged on jurisdiction and

constitutional grounds.

CONCLUSION

“We are obliged to examine standing sua sponte where standing has

erroneously been assumed below.” See Steel Co. v. Citizens for Better

Environment, 523 U.S. 83, 95 (1998).

A cursory review of the jurisdiction in the Lower Court’s Judgment has NO

mention of OPM’s December 27, 2004, final suitability decision. The Lower Courts

basis for its jurisdiction was OPM’s May 16, 2001, initial determination, VACATED

by OPM. The Appellate Court has a special obligation to notice defects in the

jurisdiction from the Lower Courts. "If the record discloses that the lower court

12

was without jurisdiction this court will notice the DEFECT. When the Lower

Federal Court lack[s] jurisdiction, we have jurisdiction on appeal, not of the

merits but merely for the purpose of correcting the error of the lower court in

entertaining the suit." United States v. Corrick, 298 U.S. 435, 440 (1936);

Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001); In the Matter of the Fee

Agre.em.ent of Bruce Tyler Wick v. Jesse Brown, Secretary of Veterans Affairs, 40 F.3d

367 (F. Cir. 1994); Earth Island Institute v. Madeleine K. Albright, 147 F.3d

1352 (F. Cir. 1998). Every federal appellate court has a special obligation to

"satisfy itself not only of its own jurisdiction but also that of the lower courts in a

cause under review”, Mitchell v. Maurer, 293 U.S. 237, 244 (1934).

See Juidice v. Vail, 430 U.S. 327, 331-332 (1977) (standing).

In considering Writ for Certiorari, procedural latitude is appropriate in Pro

se Veteran pleading are held “to less stringent standards than formal pleadings

drafted by lawyers.” Matthews v. United States, 13-5109 (F. Cir. 2014); Roche v.

United States Postal Serv., 828 F.2d 1555, 1558 (F. Cir. 1987) ("Pro se petitioners

are not expected to frame issues with the precision of a common-law pleading.");

Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Federal Circuit jurisdiction

conflicts with this Court’s recent decision Perry v. Merit Systems Protection Bd..,

Docket 16-399; 2017 U.S. LEXIS, 4044.

This Court has jurisdiction to review or reopen any Lower Court decision at

any time, see FRCP 60(b), 5 U.S.C. § 7701(e)(1)(B), 5 C.F.R. § 1201.117-120 (2000).

Vesser v. Office of Personnel Management, 67 M.S.P.R. 239, 242, 244, aff'd, 73 F.3d

13

381 (F. Cir.1995). The Lower Courts previous affirmance does not preclude

consideration of Kimberly Truckley’s December 27, 2004, final decision showing

OPM perpetrated a fraud, where reopening, or reconsideration is appropriate.

Standard Oil Co. v. United States, 429 U.S. 17, 19 (1976) (per curiam).

The established practice of the Court in dealing with a civil case from a court

in the federal system which has become moot while on its way here or pending our

decision on the merits is to reverse or vacate the judgment below and remand with

a direction to dismiss. United States u. Munsingwear, Inc., 340 U.S. 36 (1950);

Camreta v. Greene, 563 U.S. 692 (2011); Bancorp v. U.S. Bonner Mall, 513 U.S. 18

(1994).

For the foregoing reasons, the petition for a writ of certiorari should be

granted.

April 22, 2021

Respectfully submitted,

a

C.

f

t

Henry Eugene Gossage

Pro se Veteran