Petition for Writ of Certiorari — Henry E. Gossage, Petitioner v. Office of Personnel Management

No..

In the

SUPREME COURT

OF THE UNITED STATES

HENRY E. GOSSAGE,

Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT (OPM)

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

i

QUESTIONS PRESENTED

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

of the Federal Circuit jurisdiction but also that of the U.S. District Court Western

Washington, and Merit Systems Protection Board in Office of Personnel

Managements December 27, 2004, 5 C.F.R. § 731.404 cause under review and the

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

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.

On December 27, 2004, the Office of Personnel Management (OPM) amended,

overturned, vacated Karen McCue’s May 16, 2001, initial determination.

The Questions presented:

1. 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 OPM’s December 27, 2004 final

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

2. Whether the Order and Judgments entered after OPM’s December 27,

2004, is Void for lack of Jurisdiction or a legal nullity?

3. Whether the MSPB Judgment entered on September 27, 2004, is

Moot?

4. Whether the Court entered a default judgment by substituting its own

decision for that of the Agency’s (OPM) December 27, 2004 decision?

ii

PARTIES TO THE PROCEEDINGS

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

Protection Board in Office of Personnel Management Investigation Case No. 01-904277, SE-0731-01-0261-I-(l-5); and in the U.S. Court of Appeals for the Federal

Circuit in USCA Cases No. 2020-2178, 2020-2194, 2020-2195.

The Office of Personnel Management was Respondent in the same cases and

actions noted above. No other relevant parties are represented in the instant

matter.

TABLE OF CONTENTS

Page

Opinions below.............................

1

Jurisdiction...................................

1

Statutory provisions involved.....

2

Statement........ ............................

2

Reasons for granting the petition

21

Conclusion....................................

34

Appendix Index................. ..........

a-1

Appendix A........................

a-2

Appendix B........................

a-11

Appendix C........................

a-45

Appendix D........................

a-56

Appendix E........................

a-60

iii

TABLE OF AUTHORITIES

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

14

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

11

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

13

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

12

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

13

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

11

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

11 '

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

12

Camreta u. Greene, 563 U.S. 692 (2011);

16

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

14

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

11, 13

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

14

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

13

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

6, 14

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

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

13

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

15

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

12

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

14

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

11

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

15

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

13, 14

iv

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

15

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

13

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

15

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

16

Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 95 (1998).

11

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

16

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

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

16

FEDERAL STATUTES and REGULATIONS (2000)

United States Constitution V

passim

5 U.S.C. § 702 ,

L 4, 14

5 U.S.C. § 704

1,4

5 U.S.C. § 706

4

5 U.S.C. § 2302

1, 3, 14

5 U.S.C. §3318

1, 6-8

5 U.S.C. § 3330a

1

5 U.S.C. § 7701

1, 2, 12

5 U.S.C. § 7703

1, 3-5, 12, 14

28 U.S.C. § 1254

1

28 U.S.C. § 1295

1,3,5

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

4, 6, 17

38 U.S.C. § 4311

1

38 U.S.C. § 4324

1,4

5 C.F.R. § 300.103 (2001)

5 C.F.R. § 731 et seq.

1

7, 10, 14

V

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, 4, 6, 7

6,7

3, 6, 11-14

4, 6,9

3, 11

14, 16

2

I.

STATEMENT

The Constitutional Questions presented, whether undisclosed new and

material evidence is sufficient for the Lower Court to Reopen or Open as a New and

Independent Appeal for “Want of Jurisdiction” versus “Lack of Jurisdiction” from

the Lower Courts authority to make a judgment in favor of OPM on the Merits,

where the Lower Courts had NO Federal Jurisdiction over the subject matter in

question. These prior judgments in favor of OPM are the product of the agency’s

concealment, fraud, collusion, or misrepresentation that may be set aside. See

Restatement (Second) of Judgments §§ 69-72 (1982); Griffith v. Bank of New

York, 147 F.2d 899, 901 (CA2) (Clark, J.), cert, denied, 325 U.S. 874 (1945).

This petition is about the Initial and Final Federal Jurisdiction of this Court

and the Lower Court’s in OPM Investigation Case 01-904-277, 5 U.S.C. § 3318 PassOver request of a preference eligible veteran1, and OPM’s Two conflicting 5 C.F.R. §

731.3042 decisions, May 16, 20013 and December 27, 20044, resulting in two

separate and distinct “subject matter jurisdiction” scenarios. Federal Jurisdiction

cannot be waived or overcome by an agreement. The Lower Courts failed to reconcile

1(c)(l) When the Office has completed its review of the proposed

pass over, it shall send its findings to the appointing authority and to the preference

eligible. The appointing authority shall comply with the findings of the Office.

2 The decision regarding the final suitability action will be in writing, be dated, and

inform the respondent of the reasons for the decision and that an unfavorable

decision may be appealed in accordance with subpart E of this part. OPM will also

notify the respondent's employing agency of its decision.

3Appendix D-l, Ineligible on Suitability, Cancel all Applications/Eligibilities.

4Appendix C, Eligibility Reinstated and debarment rescinded during MSPB appeal.

Final Determination Acceptable on all Suitability matters. Overturned/Vacated

Cancel all Applications/Eligibilities, Ineligibility on Suitability, and Debarment.

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 United States Court of Appeals for the Federal Circuit October 20, 2020 Order

(Appendix A 1) and February 24, 2021 Rehearing Orders (A 2-4) is unreported. The

Merit Systems Protection Board (“Board”) September 27, 2004, Order is reported at

97 M.S.P.R. 366. AJ Freet April 22, 2002, MSPB decision, and AJ Cassidy July 8,

)

■

2005, MSPB decision (Appendix B 1-3) is unreported. AJ Gutman February 14,

2015 Order forwarding petition is unreported (B 4).

JURISDICTION

The Order of the Court of Appeals dismissed for “lack of jurisdiction” was entered on

October 20, 2020. The Court denied rehearing, rehearing en banc on February 24,

2021. The petition for a writ of certiorari was filed on May 7, 2021. 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.

3

the two OPM decisions, and the relevant facts for the purpose of correcting the Lower

Courts “lack of federal jurisdiction” in entertaining OPM’s unfavorable and favorable

decisions.

Initial Appellate Jurisdiction was based on OPM’s May 16, 20013, 5 C.F.R. §

731.202 charges and 5 C.F.R. § 731.304 unfavorable decision5 was appealed to the

MSPB on June 8, 2001.

OPM notified OSHA of its December 27, 2004, final decision, but DID NOT

notify Petitioner.3.4, “DO NOT DISCLOSE OUTSIDE OF OPM” (App. C, a-50, 55).

OPM did not notify Petitioner of its amended and final employment suitability

decision (Appendix C, p. a-49, a-54) on December 27, 2004, removing Federal

Jurisdiction from the Lower Court’s 5 C.F.R. § 1201.3(7)6, 28 U.S.C. § 1295(9)7.

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. a-56), initial negative

suitability decision, removing 5 C.F.R. § 1201.3(a)(7) appellate jurisdiction. Without

Federal Jurisdiction, Petitioners Constitutional Rights were violated, when the

Lower Courts substituted its Judgment for OPM’s December 27, 2004, Final

55 C.F.R. § 731.501-(a) OPM under this part takes a suitability action against a

person, that person may appeal the action to the MSPB. (c) Appeal procedures. The

procedures for filing an appeal with the Board are found at part 1201 of this title.

6(a) The Board has jurisdiction over appeals (7) Disqualification of an employee or

applicant because of a suitability determination (5 CFR 731.103(d) and 731.501).

5 U.S.C. § 2302(b)(13) implement or enforce any nondisclosure policy, form, or ....

7 (9) Federal Circuit has exclusive jurisdiction of an appeal from a final order or

final decision of the MSPB, pursuant to sections 7703(b)(1) and 7703(d) of title 5.

4

Decision4. The Courts Original (initial) Jurisdiction attached at the time an appeal

was filed and remains open throughout the litigation.

Petitioner filed Three new and independent appeals to the Federal Circuit,

based on OPM’s December 27, 20044, new and material Final suitability decision;

(1) SF-0731-13-0252-I-1 on June 13, 2020, (2) SE-0731-01-0261-I-2 on June 13,

2020, (3) SE-0731-01-0261-I-5 on June 13, 2020.

Petitioner has the Constitutional right to judicial review, “Not on the Merits”,

but on “Want of Federal Jurisdiction” in these causes of action from this Court and

Lower Courts. 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.

A question of judicial bias from the Lower Courts when their judgments have

been predicated on OPM recommendations, its staff attorney, and without

argument. In the FIRST instance, OPM substituted a VACATED agency decision

(App. D-l, p. a-56) in Federal Circuit 2005-3155 to obtain a favorable judgment,

“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. a49, a54), Vacating the agency’s May 16,

2001, 5 C.F.R. § 731.202(b) charges and initial decision establishing Petitioner’s

actual innocence. For the SECOND time, the Federal Circuit 2021-1026 was in

agreement with OPM’s recommendation,

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

Jurisdiction over his petition”,

5

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 towards the pro se litigants, utilizing 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 Jurisdiction Review 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. Review is not on the merits,

Review is on the Question of “Federal Jurisdiction” or “Want of Jurisdiction”, which

cannot be waived.

Petitioner presented a Constitutional due process and jurisdiction question to

the Lower Courts, which failed to develop the relevant facts, based on the OPM’s

illegal conduct. The Lower Courts have a special obligation to NOTICE this

DEFECT in “Federal Jurisdiction”. Valley Forge Christian College v. Americans

United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982).

First and Foremost, when a Constitutional Question over Federal

Jurisdiction has been presented, this Court has a duty to satisfy itself of “subject

matter jurisdiction” and an obligation to notice any DEFECTS in a court of appeals

jurisdiction. This Court emphasized in Valley Forge Christian College v. Americans

United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982)8.

8 " [A]t an irreducible minimum, Art. Ill requires the party who invokes the

court's authority to 'show that he personally has suffered some actual or

threatened injury as a result of the putatively illegal conduct of the

defendant,' Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979), and

6

The Lower Courts failed to review and insured the Courts still had 5 C.F.R. §

1201 et seq. “subject matter jurisdiction” at each level from OPM’s Kimberly

Truckley’s December 27, 2004, final 5 C.F.R. § 731.501 decision (App. C, p. a49, a54)

in OPM Investigation Case 01-904-277, Federal Rules of Civil Procedure 60, and

Petitioner’s 5th Amendment due process violations. See Cushman v. Shinseki, 576

F.3d 1290 (F. Cir. 2009).

II.

FACTUAL AND LEGAL BACKGROUD

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 38-42) 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 OPM’s 1998 suitability 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. all, a24) initial decision on April 22, 2002. The

that the injury 'fairly can be traced to the challenged action' and 'is likely to be

redressed by a favorable decision,' Simon v. Eastern Kentucky Welfare Rights

Org., 426 U.S. 26, 38, 41 (1976).

7

MSPB’s initial decision became the split Board final decision on September 27,

2004.

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 December 27, 2004 (Appendix C, p. a 48-50), VACATING OPM’s Karen

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

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

p. a49, a54) Suitability Specialist Karen McCue’s May 16, 2001, 5 C.F.R. § 731.404

initial decision (Appendix D-l, p. a56). 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. a50, a55).

4

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. a45-50) 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 27-32):

8

i.

ii.

iii.

Final Determination Acceptable

Eligibility reinstated during MSPB appeal

Debarment rescinded during MSPB appeal

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

and final OPM determination (Appendix C-2, p. a51-55):

i.

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.

ii.

iii.

Petitioner filed to reopen and/or a new and independent MSPB appeal based

i

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. Petitioner appealed these decisions to the Federal

Circuit on “Federal Jurisdiction” and not on the underlying Merits.

The Constitutional question is whether “Federal Jurisdiction” takes

precedence over “Jurisdiction on the Merits”?

The Federal Circuit stated, “We agree with OPM that Mr. Gossage has not

shown that this court has jurisdiction over these petition” (Appendix A-l) on the

MERITS and not over “Federal Jurisdiction”.

9

A. September 27, 2004 - MSPB SE-0731-01-0261-I-29 10

July 8, 2008 - MSPB SE-0731-01-0261-I-510

February 14, 2013 - MSPB SF-0731-13-0252-1-1

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

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

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

On January 25, 2006, OPM’s request remand for a second suitability decision,

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

9 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. a45-50. OPM notified OSHA of its final December 27, 2004, VACATING

Karen McCue’s May 16, negative suitability decision.

10 The decisions from the Lower Courts are based on Karen McCue’s VACATED

May 16, 2001, initial negative suitability decision.

10

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. (Appendix B-3). 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

On February 14, 2013, the MSPB transferred the SF-0731-13-0252-I-lto the

Board. (Appendix B-4).

REASONS FOR GRANTING THE PETITION

SE-0731-01-0261-1-2, SE-0731-01-0261-I-5, and SF-0731-13-0252-I-1 is an

independent new or reopen appeal, based on OPM’s December 27, 2004, new and

material final decision, vacating OPM’s May 16, 2001, initial negative suitability

employment decision. In the first instance, Original Jurisdiction is dependent on

the merits of Petitioners’ negative suitability and ineligibility for appointment to

federal employment, 5 C.F.R. § 731 et seq. Without a “negative suitability decision”,

the Lower Courts Lacked subject matter jurisdiction, which can be challenged at

any time. Timeliness jurisdiction is Void, without initial (original) subject matter

jurisdiction. McCarley v. MSPB, 757 F.2d 278 (F.Cir.1985). “We set aside the

MSPB's decision that it had no jurisdiction and remand to the MSPB for further

proceedings.” Clifton L. Goodrich v. U. S. Department of the Navy and Merit Systems

Protection Board, 686 F.2d 169 (3rd Cir. 1982).

“Federal Jurisdiction” or “Want of Jurisdiction” at every stage of litigation

maybe challenged at any time and Jurisdiction cannot be waived. Which

Jurisdiction takes precedence, Federal Subject Matter Jurisdiction, Timeliness

11

Jurisdiction, or Jurisdiction on the Merits? “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 Jurisdiction was obtained

through trickery, deception, or fraud by substituting the agency’s vacated

decision1 to obtain a favorable judgment that is void. United Student Aid Funds,

Inc. v. Espinosa, 559 U.S. 260 (2010).

Federal 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”.

Steel Co. u. 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) Federal subject matter jurisdiction in its dismissal. The Lower

Courts Jurisdictional DEFECTS11 remain, violating Petitioner’s due process rights.

11 "

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

12

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

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 have knowledge of OPM’s December 27, 2004,

5 C.F.R. § 731.501 Final Decision, THEN OPM’s “Inequitable Conduct”

perpetrated Fraud ort 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 Co. v. Automotive

Co., 324, 324 U.S. 806, 815-16 (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 Driller Co. v. General Excavator Co., 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, “niay not supply a reasoned basis for the

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).

13

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 u. 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 Lower Court substituted its

judgment for that of OPM’s Lead Suitability Specialist Kimberly Truckley’s

December 27, 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 Federal 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. Williamsport 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 Federal 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, 2O0l, and OPM’s Truckley’s December 27, 2004 decisions is an arbitrary

and capricious change from agency practice under the Administrative Procedure

14

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

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 v. 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

For all of the above reasons, this Court must assume jurisdiction to decide

whether OPM’s December 27, 2004, decision states a cause of action on which the

15

court can grant relief as well as to determine issues of fact arising in the

controversy. 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

fundamental defects in Federal Jurisdiction from the Lower Courts. "If the record

discloses that the lower court 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). 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 (Fed. Cir. 2014); Roche v.

United States Postal Serv., 828 F.2d 1555, 1558 (Fed. 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.

16

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

381 (F. Cir.1995); Postal Service v. Gregory, 534 U.S. 1 (2001). 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 v. 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.

May 8, 2021

Respectfully submitted,

Hen

Pro se Veteran