Petition for Writ of Certiorari — Mike Webb, Petitioner v. James Christian Kimmel, et al.

Supreme Court briefNov 28, 2023

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Supreme Court of tfje SKntteb States!

MAJOR MIKE WEBB, D/B/A FRIENDS FOR MIKE

WEBB (C0059153;7), AIKJA MAJOR MIKE WEBB FOR

CONGRESS (H8iA08167), A/K/A MAJOR MIKE FOR

VA, A/K/A MIKE WEBB FOR APS BOARD,

Petitioner-Appellant,

JAMES CHRISTIAN KIMMEL, AMERICAN

BROADCAST COMPANY, INC., d/b/a JIMMY KIMMEL

LIVE!, WJLA TV, A/k/a NEWS CHANNEL 8, SINCLAIR

BROADCAST GROjtJP, WUSA9, a/k/a CHANNEL 9, ABC

LEGAL SERVICES, and JANE AND JOHN DOES,

Respondents-Appellee.

Webb v. Kimmel, et al., No. 23-1580 (4th Cir. 2021), on appeal Webb v. Kimmel,

et al., 3:22-cv-00392-MHL (E.D. Va. 2020)

Petition for Writ of Certiorari

Major Mike Webb, Pro Se

Counsel of Record

1210 S. Glebe Road

#40391

Arlington, Virginia

(856) 220-1354

GiveFaithATrv@gmail.com

PETITION FOR A WRIT OF CERTIORARI

Petitioner Major Mike Webb respectfully requests the issuance of a writ of

certiorari to review the judgment of the United States Court of Appeals for the Fourth

Circuit.

QUESTIONS PRESENTED

Whether a plaintiff is entitled under Fed.R.Civ.Pro. 55 to award of a default

judgment after defendants have failed to provide an answer to a complaint

within 21 days, as required under 12(a)(l)(A)(i).

II.

Whether, for purposes of dismissal, under Fed.R.Civ.Pro. 12(b)(6), a civil

remedy exists, under 18 U.S.C. § 1964(c), as a claim to which a plaintiff could

expect a court of competent jurisdiction to award relief.

III.

Whether, for purposes of a final order, treating in disparate treatment a

litigant, vis a vis similarly situated others, it is a denial of equal protection

under 42 U.S.C. § 1981, or, in the alternative, under the Fifth Amendment,

to issue a nonprecedential order applying only to that case and litigant.

PARTIES AND RULE 29.6 STATEMENT

Applicant-Appellant is MAJOR MIKE WEBB, d/b/a FRIENDS FOR MIKE

WEBB (C00591537), a/k/a MAJOR MIKE WEBB FOR CONGRESS (H8VA08167),

a/k/a MAJOR MIKE

FOR VA,

a/k/a MIKE WEBB FOR APS

BOARD.

Applicant/Appellee has no parent corporation, and there is no publicly held

corporation owning 10% of more of its stock.

Appellees include are various, but for the present application, in relevant part,

include JAMES CHRISTIAN KIMMEL, hereinafter referred to as “Kimmel”,

AMERICAN BROADCAST COMPANY, INC., D/B/A JIMMY KIMMEL LIVE!,

hereinafter referred to as “ABC Ty”, WJLA TV, a/k/a NEWS CHANNEL 8, hereinafter

referred to as “WJLA”, SINCLAIR BROADCAST GROUP, WUSA9, a/k/a CHANNEL

-r

9, hereinafter referred to as “WUSA9”, ABC LEGAL SERVICES, hereinafter referred

to as “ABC Legal”, and JANE AND JOHN DOES.

Respondent-Appellants were

Defendants in the United States District Court for the Eastern District of Virginia,

Richmond Division, in an action commenced, pursuant to 18 U.S.C. § 1964(c), on May

23, 2022, for which an Amended Complaint, filed sua sponte, see Fed.R.Civ.Pro. 15, by

Appellant on July 29, 2022, after the matter had languished, for the purpose of

triggering notice under Fed.R.Civ.Pro. 5(d). Despite a grant of permission to proceed

in forma pauperis, under 28 U.S.C. §1915, on October 24, 2022, and service of process

perfected by the U.S. Marshals on all Appellees, Fed.R.Civ.Pro. 4(c)(3), Appellees

WJLA, an ABC News affiliate,: Sinclair and ABC Legal have, in contravention of

Fed.R.Civ.Pro. 12(a)(2), have elected a Fifth Amendment right to remain silent

regarding allegations raised under 18 U.S.C. §§ 1961 and 1962, predicate offenses

arising from violations of state and federal law, having failed to even make an

appearance in the matter, while all other remaining Appellees have only generally

averred that pleadings were inscrutable as an affirmative defense, under

Fed.R.Civ.Pro. 8 and 12, in direct contravention of the rule that “[t]o properly convict,

the government must prove every element of each offense charged beyond a reasonable

doubt”. U.S. v. Kimble, 719 F.2d 1253 (5th Cir. 1983). Appellant is MICHAEL D. WEBB,

a/k/a Major Mike Webb, d/b/a Friends for Mike Webb and Major Mike Webb for

CONGRESS, hereinafter referred to as “Webb”. Appellant was the Petitioner in the U.S.

District Court for the Eastern District of Virginia and was the Appellant in the U.S.

Court of Appeals for the Fourth Circuit. Appellant has no parent corporation, and there

is no publicly held corporation owning 10% of more of its stock.

■li"

DECISIONS BELOW

All decisions in this case in the lower courts are styled Webb v. Kimmel, et al.,

commenced on May 23, 2022. From the Trial Court, docketed at Civil Action No.

3:22cv392, the following orders are attached in the Appendix of Authorities: In forma

pauperis, “IFP Order”, dated Oc;ober 24, 2022 (Exhibit A); “Order to Amend”, dated

January 23, 2023 (Exhibit B); the Service of Process Order, “Service Order”, dated

December 12, 2022 (Exhibit C); the Affidavit Dismissal Order, dated May 3, 2023

(Exhibit D); and the Dismissal C •rder, dated May 18, 2023. No transcript record has

been created, and none have been designated for publication in the Federal

Supplement.

From the Appellate Court, docketed at Record No. 23-1152 and Record No. 231580, the following orders are attached in the Appendix of Authorities: Appellate

Order, dated November 2, 2023 (Exhibit E), and the Mandate Order (Exhibit F).No

transcript record has been created, and none have been designation for publication the

Federal Reporter.

JURISDICTION

The Fourth Circuit entered judgment on November 2, 2023, and this Court’s

jurisdiction is invoked under 28 U.S.C. § 1254.

-in-

Table of Contents

PETITION FOR A WRIT OF CERTIORARI

Questions Presented.................... ,............................................................ ................................

I. Whether a plaintiff is entitled under Fed.R.Civ.Pro. 55 to award of a default

judgment after defendants have failed to provide an answer to a complaint within

21 days, as required under 12(a)(l)(A)(i)........................................................................... 1

II. Whether, for purposes of dismissal, under Fed.R.Civ.Pro. 12(b)(6), a civil

remedy exists, under 18 U.S.C; § 1964(c), as a claim to which a plaintiff could

expect a court of competent jurisdiction to award relief..... ........ .................................

III. Whether, for purposes of a final order, treating in disparate treatment a

litigant, vis a vis similarly situated others, it is a denial of equal protection under

42 U.S.C. § 1981, or, in the alternative, under the Fifth Amendment, to issue a

nonprecedential order applying only to that case and litigant.....................................

Parties and Rule 29.6 Statement

Decisions Below.............................

ill

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

ill

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

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

Petition for Writ of Certiorari.....

-1 -

Statement of the Case

-1 -

Reasons for Granting Certiorari;......................................................................................... -7I. Whether a plaintiff is entitled under Fed.R.Civ.Pro. 55 to award of a default

judgment after defendants have failed to provide an answer to a complaint within

21 days, as required under 12(a)(l)(A)(i).................................................................... - 7 II. Whether, for purposes of dismissal, under Fed.R.Civ.Pro. 12(b)(6), a civil

remedy exists, under 18 U.S.C. § 1964(c), as a claim to which a plaintiff could

expect a court of competent jurisdiction to award relief......................................... - 17!

III. Whether, for purposes ofj a final order, treating in disparate treatment a

litigant, vis a vis similarly situated others, it is a denial of equal protection under

42 U.S.C. § 1981, or, in the alternative, under the Fifth Amendment, to issue a

- 24 nonprecedential order applying only to that case and litigant

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

-iv

- 30-

TABLE OF AUTHORITIES

Cases

- 14 Abourezk v. Reagan, 785 F.2d 1043 (1987)......................................

- 37Anderson v. City of Bessemer City, N.C., 470 U.S. 564 (U.S. 1985)

- 33 -, - 36 Ashcroft u. Iqbal, 556 U.S. 662 (2009)..............................................

Attorney-General of the Government of Israel v. Eichmann, 36 I.L.R. 5 (Supreme

........ - 18Court of Israel, 1961)...............................................

........ - 43 Bd. of Supervisors v. Lerner, 221 Va. 30, 34 (1980)..,

.....passim

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)

.........-30Bishop v. Commonwealth, 275 Va. 9 (2008).............

- 16 -, - 46 Brown v. Payton, 544 U.S. 133 (2005).......................

- 11 Buckley v. Valeo, 424 U.S. 1. N. 58 (1976)...............

- 17 Burkhardt v. U.S., 13 F.2d 841, 842 (6th Cir. 1926)

Buxton v. Murch, No. 2026-03-2, 2004 WL 1091903, at *1-6 (Va. Ct. App. May 18,

2004)......................................... ...................................................................... ........ - 22 Calley v. Callaway, 519 F.2d 184j (5th Cir. 1975)........................................... ........ -28Chambers v. Nasco, Inc., 501 U.S. 32 (1991).................................................. ........ - 39Clark v. Commonwealth, 90 Va. 360 (1893).................................................... ........ - 31 Com. v. Manigo, 2010 WL 46808k (Va.Cir.Ct. 2010)...................................... ........ -38Commonwealth v. Carter, 474 Mass. 624 (2016)............................................ ........ - 35 Commonwealth v. Millsaps, 232 Va. 502 (1987)............................................. ........ -20Conley v. Gibson, 355 U. S. 41, 47 (1957)............. .......................................... - 31 -, - 32 Cty. of Sacramento v. Lewis, 523 U.S. 833 (1998).......................................... .........- 38(2020)Dep’t of Homeland Security v. Regents of University of California, 591 U.S.

44 DLJMortg. Capital, Inc. v. Kontogiannis, 726 F. Supp. 2d 225 (E.D.N.Y. 2010)...- 13 - 25 -, - 26 Dobrich v. Walls, 380 F. Supp. 2d 366 (D. Del. 2005).............................

Doe v. Tangipahoa Par. Sch. Bd.j, 631 F. Supp. 2d 823 (E.D. La. 2009)

......... - 45 ..........-30Eisert v. Town of Hempstead, 918 F. Supp. 601 (E.D.N.Y. 1996).........

..........- 45 Elrod v. Burns, 427 U.S. 347 (19|76)........................................................

......... - 21 Estep v. Ballard, 502 F. App’x 234 (4th Cir. 2012).................................

Ferri v. Berkowitz, 678 F. Supp. bd 66 (E.D.N.Y. 2009).........................

..........- 32 ..........- 13Figueroa Ruiz v. Alegria, 896 F.2d 645, 650 (1st Cir. 1990).................

Government of Israel v. Eichmarin, 36 I.L.R. 5 (Supreme Court of Israel, 1961).- 27 -, 45 - 19 -, - 20 Hecht v. Commerce Clearing House, Inc., 897 F.2d 21 (2d Cir. 1990)

....-39Hensley v. Alcon Labs., Inc., 277 F.3d 535 (4th Cir.2002).................

....-27Hill v. Woodward, 78 Va. 765 (1884)...................................................

....- 21 In re Perry, 423 B.R. 215 (Bankr. S.D. Tex. 2010)..............................

-y-

In re White, No. 2:07CV342, 2013 WL 5295652, at *1-71 (E.D. Va. Sept. 13, 2013) - 47

- 29In re Winship, 397 U.S. 358 (1970)...................

- 45 Iouri v. Ashcroft, 487 F.3d 76 (2d Cir. 2007)....

- 14 Jacobson v. Massachusetts, 197 U.S. 11 (1905)

- 19Jones v. Commonwealth, 279 Va. 295 (2010)....

Jones u. Commonwealth, 293 Va. 29, cert, denied sub nom. Jones v. Virginia, 138 S.

Ct. 81 (2017)............................................................................................................ -35Kewley v. HHS, 153 F.3d 1357 (Fed. Cir. 1998)...................................................... - 7 Kimble v. Carey, 279 Va. 652 (2010)........................................................................ -20Lopez v. Pastrick, No. 205-CV-452, 2007 WL 1042140, at *1-6 (N.D. Ind. Apr. 4,

......... - 25 2007)......................................... ....................................................

......... - 17 Luteran v. U.S., 93 F.2d 395 (8th Cir. 1937).................................

......... - 39Luther v. Borden, 48 U.S. (7 How.) (1849)....................................

......... - 18Marcantonio v. Dudzinski, 155 F. Supp. 3d 619 (W.D. Va. 2015)

......... - 15 Mayhew v. Commonwealth, 20 Va.App. 484 (1995)......................

- 10 -, - 45 Monitor Patriot Co. u. Roy, 401 U.S. 265 (1971)...........................

Oglesby v. U.S.P.S., Docket Number DC-0752-20-0387-1-1 (MSPB May 10, 2022) - 39 ,-46- 22 Pendleton u. R. F. & P. R. Co., 104 Va. 813 (1906)

-30Powers u. Commonwealth, 211 Va. 386 (1970).....

Pyke v. Laughing, No. 92-CV-555, 1996 WL 252660, at *1-16 (N.D.N.Y. May 9, 1996)13 -, - 25 - 7Reid v. MSPB, 508 F.3d 674 (Fed. Cir. 2007)...............................

- 24 -, - 33 Republican Party of N.C. v. Martin, 980 F.2d 943 (4th Cir. 1992)

Roncales v. County of Henrico, Civil Action No. 3:19cv234 (E.D.Va. March 3, 2021).- 7

- 34Saine v. A.I.A., Inc., 582 F. Supp. 1299 (D. Colo. 1984)................

- 30 Savage v. Commonwealth, 84 Va. 582 (1888).................................

- 21 Sieverding v. Colorado Bar Ass’n, 469 F.3d 1340 (10th Cir. 2006)

Solomon v. Am. Web Loan, No. 4:17CV145, 2019 WL 1320790, at *1-22 (E.D. Va.

- 20 Mar. 22, 2019)

Spinelli, Kehiayan-Berkman, S.A. v. Imas Gruner, A.I.A., &Assocs., 602 F. Supp. 372

.... - 29(D. Md. 1985)..................................................................................

.... -46Texas Dept of_ Comm._ Affairs v._ Burdine^ 450. U.S.. 248.(!981).....

.... - 15 U.S. v. Al-Arian, 308 F. Supp. 2d 1322 (M.D. Fla. 2004)..............

-3U.S. v. Anderson, 747 F.3d 51 (2d Cir.2014)...................................

- 30U.S. v. Aulicino, 44 F.3d 1102 (2d Cir. 1995)...................................

-28U.S. v. Calley, 22 U.S.C.M.A. 534 (1973)........................................

- 39U.S. v. Chalk, 441 F.2d 1277 (4th Cir. 1971)..................................

-vi-

U.S. v. Climico, No. S2 11 CR. 974-08 CM, 2014 WL 4230320, at *1-7 (S.D.N.Y. Aug.

-37, 2014)............................................................................................

-4U.S. v. Corinthian Colleges, 655 F.3d 984 (9th Cir. 2011).............

-3U.S. u. Eggleton, 799 F.2d 378 (8th Cir. 1986).................................

- 17 U.S. v. Heard, 709 F.3d 413 (5th Cir. 2013)....................................

U.S. v. Kimble, 719 F.2d 1253 (5th Cir. 1983).................................

- 3 - 34U.S. v. Pungitore, 910 F.2d 1084 (3d Cir. 1990)..............................

-43U.S. u. Salerno, 481 U.S. 739 (1987).................................................

-45U.S. v. Tannenbaum, 764 F. App’x 115, (Mem)-116 (2d Cir. 2019)

- 15 -, - 34 U.S. v. Turkette, 452 U.S. 576 (1981)...............................................

- 37U.S. v. U.S. Gypsum Co., 333 U.S. 364 (1948).................................

- 40 - 41 (2022).....

U.S. v. Vaello Madero, 596 U.S.

- 38Uribe v. Sessions, 855 F.3d 622 (4th Cir. 2017)

Valley Forge Christian College v. Americans United For Separation Of Church And

-26State, Inc., 454 U.S. 464 (1982).................................

- 31 Waggoner v. Waggoner, 111 Va. 325 (1910).................

- 16Webster v. Reprod. Health Servs., 492 U.S. 490 (1989)

- 40 Weinberger v. Wiesenfeld, 420 U.;S. 636, n. 2 (1975)....,

Whitney, Bradley & Brown, Inc. v. Kammermann, 436 F. App’x 257 (4th Cir. 2011) ...34Williams u. Robinson, No. 12-08-00260-CV, 2009 WL 2356268, at *7-8, 2009

Tex.App. LEXIS 5982, at *19 ([Tex.App.-Tyler, July 31, 2009, no pet.)........... - 21 Wright v. Atlantic Coast Line R. Co., 110 Va. 670 (1910)..................................... - 22 -

-vir

PETITION FOR WRIT OF CERTIORARI

Petitioner Major Mike Webb respectfully petitions for a writ of certiorari to

review the judgment of the U.S. Court of Appeals for the Fourth Circuit in No. 23-1580.

STATEMENT OF THE CASE

“Whatever affects one directly, affects all indirectly”, and “I can never be what I

ought to be until you are what you ought to be”, a statement defining “the interrelated

structure of reality.” Martin Luther King, Jr., Strength to Love, June 5, 1963. This case

presents an important issue concerning basic statutory construction, and the disparate

treatment suffered by unrepresented litigants, vis a vis similarly situated others, in

■

the instant case being well-established, corporate defendants, in which the Trial Court,

impugning any sense of impartiality, has positioned itself as a gatekeeper protecting

defendants, and depriving Appellant of a right “to sue, be parties, give evidence, and

to the full and equal benefit of all laws and proceedings for the security of persons and

property as is enjoyed by white citizens.” 42 U.S.C. § 1981.

Appellee Kimmel “grew up worshiping late night TV legends” and “now an

institution himself’, he is credited with “the longest-tenured late night TV host

currently on the air, with 20 years in the game.” Eric Deggans, “Jimmy Kimmel

celebrates 20 years as a (reluctant) late night TV institution,” NPR, January 6, 2023.

Sone say that since his “newborn son faced a devastating health crisis”, “his voice has

started to really carry”, when “the ABC host responded with a tearful monologue

railing against a G.O.P. health-care reform effort that would have stripped away

protections for people with pre-existing conditions.” Laura Bradley, “Jimmy Kimmel Is

a Reluctant Progressive Hero,” Vanity Fair, October 30, 2017.

-- 1 -

“Evidence of a defendant’s flight after a crime has been committed is admissible

to prove his consciousness of guilt.” U.S. v. Pungitore, 910 F.2d 1084 (3d Cir. 1990)

(citing U.S. v. Eggleton, 799 F.2d 378 (8th Cir. 1986). And, “the admissibility of flight

evidence does not depend on whether the flight was triggered by an actual indictment,

as "it is the act of departure that is itself evidential.

Id. (quoting Miles, 468 F.2d, at

482 (quoting 2 Wigmore on Evidence § 276 (3d ed. 1970)).

“[P]ursuant to Federal Rule of Evidence 201, courts may take judicial notice of

“matters of public record,” but not of facts that may be “subject to reasonable dispute”,

U.S. v. Corinthian Colleges, 655 F.3d 984 (9th Cir. 2011) (citing Lee v. City of Los

Angeles, 250 F.3d 668 (9th Cir. 2001)), and, accordingly, it is of at least probative value

that, the usually outspoken, see Abbey White, “Jimmy Kimmel Says He’s Lost Half His

Fan Base Over Trump Criticisms,” The Hollywood Reporter, November 23, 2022, even

while hosting the Academy Awards, Josh Rottenberg, “The Academy has found its next

Oscar host. And no, it’s not Chris Rock,” L.A. Times, November 7, 2022; see also Dan

Heching, “Jimmy Kimmel returning to host 2024 Academy Awards,” CNN, November

15, 2023, has elected a right to remain silent regarding this litigation commenced in

May 2022. But see Ryan Bort, “Jimmy Kimmel Tees Off on ‘Snowflake’ and ‘Sociopath’

Marjorie Taylor Greene for Reporting Joke to Capitol Police,” Rolling Stone, April 8,

2022. But see also Ryan Bort, “Politicians and Porn: 10 Great Internet Fails,” Rolling

Stone, September 14, 2017.

And yet, while Appellant’s notorious late-night talk show appearance, see

generally Steven Primpro, “Mike Webb goes on Jimmy Kimmel Live to talk porn

mixup,” WJLA, May 20, 2016, had been uncompensated, outside the industry norm,

- 2 ■■

Francis, “How Much Do Guests Get Paid on Talk Shows?” Healing Picks, June 13,

2022, it is of at least probative value that former President Barrack Obama, in “at least

his tenth time on late night”, had used his debut appearance on the Appellee Jimmy

Kimmel Live! Platform to “amortize the political costs of his cross-country trip to help

the Democratic National Committee.” Mark Knoller, “Knoller’s numbers: President

Obama's late-night TV appearances,” CBS News, March 12, 2013.

Moreover, as he had in 2015, see German Lopez, “Jimmy Kimmel got doctors to

swear at cameras to convince people to get vaccinated,” Vox Media, March 1, 2015; but

see Vineet D Menachery , et al, A SARS-like cluster of circulating bat coronaviruses

shows potential for human emergence, 21 Nat. Med. 12,1508-1513, November 9, 2015,

corrected November 20, 2015, doi:10.1038/nm.3985; Kristopher M. Curtis, Boyd Yount,

& Ralph S. Baric, Methods for Producing Recombinant Coronavirus, Patent No. US

7,279,327 B2, October 9, 2007, Application No. 10/474,962, April 19, 2002; but see also

Kristopher M. Curtis, Boyd Yount, & Ralph S. Baric, Methods for Producing

Recombinant Coronavirus, Patent No. US 7,279,327 B2, October 9, 2007, Application

No. 10/474,962, April 19, 2002, “Jimmy Kimmel encouraged people to get a COVID-19

vaccine and featured a video of doctors and nurses across the country who talked about

their experiences.” Carolyn Crist, “Jimmy Kimmel Gets Help to Encourage COVID

Vaccinations,” WebMD, May 6, 2021. Further, “ABC late-night host Jimmy Kimmel

took a shot at unvaccinated Americans on air Tuesday, saying they shouldn’t be

admitted to ICU beds.” Alex Mitchell, ‘“Pan-dimwits’: Jimmy Kimmel says the

unvaxxed don’t deserve ICU beds,” New York Post, September 8, 2021.

Diametrically juxtaposed to Appellee Kimmel, of public record, Appellant, has

— 3 --

been identified as a “whistleblower”, Order, Webb v. Dep’t of the Army, Civil Action No.

l:22-cv-02236 (UNA) (D.D.C. Oct. 7, 2022), as well as essentially “a former biological

warfare planner”, Mark Hand, ‘ 2023 Candidate Profile: Major Mike Webb Running

For House District 3,” Patch, October 19, 2023, having been the recipient of a job offer,

for which there is no evidence that he had even applied, for an admitted “expired

mission”, in a Top Secret billet, one of only three persons offered the opportunity, before

the current public health crisis, from the Defense Intelligence Agency (DIA). See Webb

v. Dep’t of the Army, Civil Action l:22-cv-02236 (UNA) (D.D.C. 2022), aff’d Record No.

22-5292 (D.C. Circuit 2022), cert. denied Record No. 22-7394 (U.S. 2022); Webb v. DoD,

Docket Number DC-3443-18-0299-1-1 (MSPB 2018); Webb u. DIA, Civil Case No. 1:23cv-02397 (D.C. 2023).

Notoriously, Appellant h ad been silenced even on Facebook expressly for

“security reasons”, Webb v. Meta Platforms, Inc., Civil Action No. I:2023cv00816 (D.C.

2023), within a reasonable time after the White House had expressed concerns

regarding “problematic accounts”, Steven Nelson, ‘White House ‘flagging’ posts for

Facebook to censor over COVI D ‘misinformation’” New York Post, July 15, 2021,

raising a burden-shifting inference of suspicion that adverse action had, in fact, been

retaliatory. Reid v. MSPB, 508 F.3d 674 (Fed. Cir. 2007).

It is of note, in this regard. that while “Robert F Kennedy Jr, the nephew of John

F Kennedy”, who had “more than 300,000 followers on the platform”, Donie O’Sullivan,

“White House turns up heat on Big Tech’s Covid ‘disinformation dozen’,” CNN, July

16, 2021, would take over a month before it had been announced that “Meta has

permanently removed Facebook and Instagram accounts belonging to Children’s

-4-

Health Defense, the anti-vaccine group led by Robert F. Kennedy, Jr., Meta confirmed

to CNN”, Brian Fung, “Meta suspends anti-vaccine group led by RFK, Jr.,” CNN,

August 19, 2021, Appellant’s account had been permanently disabled within four days

after the White House announcement, and further less than two weeks after he had

commenced COVID-19 countermeasure related litigation against the White House. See

Webb v. Fauci, Civil Action No. 3 2021cv00432 (E.D.Va. 2020), aff’d Record No. No. 212394 (4th Cir. 2022), cert denied Record No. 21-8242, 143 S.Ct. 79 (2022); see also

Record No. 21-6868, 142 S.Ct. 1352 (2022); Webb u. OMB, Civil Action No.

3:2022cv00418 (E.D.Va. 2022), aff’d No. 22-1698 (4th Cir. 2023). See also Gabriel

Rivera, “Facebook took down COVID-19 posts after pressure from the Biden

administration. ‘I can’t see Mark in a million years being comfortable with that,’ an

exec said in newly uncovered emails,” Business Insider, July 29, 2023.

Of public record, Appellarit has been identified as having been “against current

government efforts and recommendations for safety during the COVID-19 pandemic.”

Staff, ‘Mary Kadera: Democrat,” Progressive Voters Guide, September 15, 2021,

identified as a “litigation hobbyist”, see Order, U.S. Navy SEALs v. Biden, Civil Action

No. 4:21-cv-01236-O (N.D.Tex. May 23, 2022); Order, State of Missouri v. Biden, Record

No. 22-30531 (5th Cir. August 1, 2022), with a penchant for “hot-button issues”.

Informal App. Opp. Brief, Webb v. Garland, Record No. 2022-2065(Fed. Cir. 2022), who

has brought the first and longest surviving legal challenges against the lockdowns,

Webb v. Northam, Case No. CL2001624 (Alexandria Cir. 2020), aff’d Record No. 210536

(Va. 2022), cert, denied Record No. 21-8142 (U.S. 2021); Webb v. Porter, Case Number

CL2101829 (Alexandria Cir. 2021), cert, denied, Record No. 220089 (Va. 2021), cert.

-5-

denied Record No. 21-8142 (U.S. 2021); against the nonmedical grade facial coverings,

Webb v. Northam, Civil Action No. 3:20CV497 (E.D.Va. 2020), aff’d Record Number 201968 (4th Cir. 2020), cert, denied Record No. 21-6170 (U.S. 2021); see also Webb v.

McDonough, Civil Action No. I:2023cv01344 (D.C. 2023), and against the COVID-19

countermeasures,

Webb v. Alfred Street, l:2023cv00096 (E.D.Va. 2023), on appeal

Record No. 23-1397 (4th Cir. 2023). See also Webb v. Wilson, Case Number CL21001769

(Alexandria Cir. 2021). But see also U.S. Navy SEALs v. Biden, Civil Action No. 4:21cv-01236-O (N.D.Tex. 2022); State of Missouri v. Biden, Record No. 22-30531 (5th Cir.

August 1, 2022).

Still, “it can hardly be doubted that the constitutional guarantee has its fullest

and most urgent application precisely to the conduct of campaigns for political office”,

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971), and Appellant, of record, has been

throughout the public health crisis a political candidate, engaged in campaign activity,

wherein “a candidate’s expenditure of his personal funds directly facilitates his own

political speech”, Buckley v. Valeo, 424 U.S. 1. N. 58 (1976), yet with an experience

contrary to the constitutional guarantees. See Webb v. FEC, Civil Action No.

3:2022cv00047 (E.D.Va. 2022); Webb v. Dep’t ofTreas., Civil Action No. I:2022cv02034

(D.C. 2022); Webb v. Lopez, Civil Action Number l:2023cv01239, on appeal Record

Number 23-7072 (D.C.C. 2023).

Of public record, Appellant, identified as a “whistleblower”, Order, Civil Action,

Webb v. Dep’t of the Army, No.

:22-cv-02236 (UNA) (D.D.C. Oct. 7, 2022), as well as

essentially a former biological warfare planner and the recipient of a job offer, for which

there is no evidence that he had even applied, for an admitted “expired mission”, in a

-- 6 --

Top Secret billet, one of only three persons offered the opportunity, before the current

public health crisis, from the Defense Intelligence Agency (DIA), see Webb v. Dep’t of

the Army, Civil Action l:22-cv-02236 (UNA) (D.D.C. 2022), affd Record No. 22-5292

(D.C. Circuit 2022), on petition for cert. Record No. 22-7394 (U.S. 2022); see also Webb

v. DoD, Docket Number DC-3443-18-0299-1-1 (MSPB 2018), has been silenced even on

Facebook expressly for “security reasons”, Webb v. Meta Platforms, Inc., Civil Action

No. I:2023cv00816 (D.C. 2023).

REASONS FOR GRANTING CERTIORARI

Whether a plaintiff is entitled

under Fed.R.Civ.Pro. 55 to award of a default

judgment after defendants have failed to provide an answer to a complaint

within 21 days, as required under 12(a)(l)(A)(i).

Jurisdiction is proper where “a United States court of appeals. . . has so far

departed from the accepted and usual course of judicial proceedings, or sanctioned such

a departure by a lower court, as to call for an exercise of this Court’s supervisory

power”. S.Ct.R. 10(a). However, Article III Courts have acknowledged that, “[bjecause

the ‘mere assertion of a RICO claim ... has an almost inevitable stigmatizing effect on

those named as defendants,” suggesting a predisposition against plaintiffs,

Brookhaven Town Conservative Comm., No. 14CV6097JFBARL, 2016 WL 1171583, at

*1—8, “courts have expressed skepticism toward civil RICO claims.” Id. (citing DLJ

Mortg. Capital, Inc. v. Kontogiahnis, 726 F. Supp. 2d 225 (E.D.N.Y. 2010)). Still, as a

rule, of record, “dismissals with prejudice are rare ... [,] because of the formal nature

of the pleading requirements”, Pyke v. Laughing, No. 92-CV-555, 1996 WL 252660, at

*1-16 (N.D.N.Y. May 9, 1996) (citing Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure: Civil 2d §1248 (2d ed. 1990)).

-- 7 --

A. Statutory Construction

“It is emphatically the province and duty of the judicial department to say what

the law is.” Marbury u. Madison, 1 Cranch 137 (1803). Moreover, “no power can be

exerted to that end by the United States unless, ... it be found in some express

delegation of power or in some power to be properly implied therefrom. Jacobson u.

Massachusetts, 197 U.S. 11 (1905) (citing 1 Story’s Const. § 462). And, “’if a statute. . .

has no real or substantial relation to those objects, or is, beyond all question, a plain,

palpable invasion of rights secured by the fundamental law, it is the duty of the courts

to. . give effect to the Constitution’”. Jacobson, 197 U.S., at 11 (citations omitted).

“A familiar canon of statutory construction cautions the court to avoid

interpreting a statute in such a way as to make part of it meaningless”, Abourezk v.

Reagan, 785 F.2d 1043 (1987) (citing 2A N. Singer, Sutherland Statutory Construction

§ 46.06 (4th ed.1984)), while a basic rule of statutory construction dictates that “the

plain meaning rule, [should control unless] the construction caused absurd results.”

U.S. u. Al-Arian, 308 F. Supp. 2d 1322 (M.D. Fla. 2004), and “we are unconvinced by

anything in the legislative history that this definition should be given less than its full

effect.” U.S. v. Turkette, 452 U.S. 576 (1981).

“’Where a particular construction of a statute will result in an absurdity, some

other reasonable construction which will not produce the absurdity will be found’”.

Mayhew v. Commonwealth, 20 Va.App. 484 (1995) (quoting Miller v. Commonwealth,

180 Va. 36 (1942)). And, “a statute should be read to give reasonable effect to the words

used and to promote the ability of the enactment to remedy the mischief at which it is

directed”. Id.

- 8 --

Thus evolved the rule that, “[i]f the plain meaning of a provision is

unambiguous, then this Court’s inquiry is usually complete”, U.S. v. Al-Arian, 308 F.

Supp. 2d 1322 (M.D. Fla. 2004) (citing Jackson v. State Bd. of Pardons and Paroles,

331 F.3d 790 (11th Cir.2003)). And, “the basic rule of statutory construction is to first

seek the legislative intention, and to effectuate it if possible, and the law favors

constructions which harmonize with reason, and which tend to avoid unjust, absurd,

unreasonable or confiscatory results, or oppression’”. Webster u. Reprod. Health Servs.,

492 U.S. 490 (1989) (quoting State ex rel. Stern Brothers & Co. u. Stilley, 337 S.W.2d

934 (Mo.I960)).

In this strict construction, the controlling rule provides that “if the legislature

had meant.. . [any other factor] to be considered.. . , it would have said so explicitly”,

Brown v. Payton, 544 U.S. 133 .(2005), and, in statutory construction, “[m]andatory

words impose a duty; permissive I words grant discretion”, The Writing Center, A Guide

to Reading, Interpreting and Applying Statutes, “Canons of Construction (Antonin

Scalia

Brian

Garner),”

Georgetown

University

Legal

Center

(2017),

https://docslib.org/doc/12918148/a-guide-to-reading-interpreting-and-applyingstatutesl-%C2%A9-2017-the-writing-center-at-gulc (accessed December 30, 2022).

Under the plain word meaning, Fed.R.Civ.Pro. 12(a)(1)(A)(i) provides expressly,

and unambiguously, that “[a] defendant must serve an answer. .. within 21 days after

being served with the summons and complaint”. And yet, the court record unerringly

establishes in fact that Appellees ABC Legal, Sinclair Broadcast Group and WJLA

have neither entered an appearance, nor filed a responsive pleading in answer to the

Amended Complaint. The court record establishes the unassailable fact that, pursuant

-9--

to the Service Order, dated December 12, 2022, Appellant having been granted leave

to proceed in forma pauperis, in accordance with 28 U.S.C. § 1915, the Trial Court had

“order [ed] that service be made by a United States marshal or deputy marshal or by a

person specially appointed by the court.” Fed.R.Civ.Pro. 4(c)(3).

B. Racketeering Conspiracy

“[M]ere acquiescence or silence or failure of an officer to perform a duty does

not make one a participant in a conspiracy unless he acts or fails to act with knowledge

of the purpose of the conspiracy ‘and with the view of protecting and aiding it,” Luteran

v. U.S., 93 F.2d 395 (8th Cir. 1937) (quoting Burkhardt v. U.S., 13 F.2d 841, 842 (6th

Cir. 1926). (emphasis added) Moreover, “a defendant is presumed to continue his

involvement in a conspiracy unless he makes a substantial affirmative showing of

‘withdrawal, abandonment, or defeat of the conspiratorial purpose.”’ U.S. v. Heard, 709

F.3d 413 (5th Cir. 2013)(quoting U.S. v. Mann, 161 F.3d 840 (5th Cir.1998)

(quoting United States v. Puig-Infante, 19 F.3d 929 (5th Cir.1994)). “Mere cessation of

activity in furtherance of the conspiracy is not sufficient to show withdrawal.” Id.

(citing U.S. v. Torres, 114 F.3d 520 (5th Cir. 1997) (citing U.S. v. Phillips, 664 F.2d 971

(5th Cir. Unit B 1981)).

“The distinguishing mark of a ‘manifestly unlawful order’ should fly like a black

flag above the given order, as a warning reading ‘Prohibited!’”, and should display “a

flagrant and manifest breach of the law, certain and necessary illegality appearing on

the face of the order itself.” Attorney-General of the Government of Israel v. Eichmann,

36 I.L.R. 5 (Supreme Court of Israel, 1961) (quoting Chief Military Prosecutor v.

Melinki and others (13 Pesakim Mehoziim, p. 90)). “[T]he clearly criminal character of

-- 10 --

the order or of the acts ordered,” should be sufficient, presenting “an illegality clearly

visible and repulsive to the heart, provided the eye is not blind and the heart is not

stony and corrupt”, and “that is the extent of ‘manifest illegality’ required to release a

soldier from the duty of obediende upon him and make him criminally responsible for

his acts”, Id. (quoting Ibid.)

“Under Virginia law, the elements of a common law civil conspiracy are (i) an

agreement between two or more persons (ii) to accomplish an unlawful purpose or to

accomplish a lawful purpose by unlawful means, which (iii) results in damage to

plaintiff’ through an overt action done pursuant to the agreement”, Marcantonio v.

Dudzinski, 155 F. Supp. 3d 619 (W.D. Va. 2015) (citing William u. AES Corp., 28

F.Supp.3d 553 (E.D.Va.2014)), and “[t]here must also be an underlying tort

committed.” Id. (citing William, 28 F.Supp.3d, at 553). This matter was commenced

under the federal racketeering statute, 18 U.S.C. § 1964(c), and under this provision,

civil liability for injury “may result from a. . . conspiracy”, and yet “a conspiracy—an

agreement to commit predicate! acts—cannot by itself cause any injury”. Hecht v.

Commerce Clearing House, Inc., 897 F.2d 21 (2d Cir. 1990).

However, “although an overt act by itself (whether or not injury ensues) is not a

requisite element of a... criminal conspiracy violation,” Id., (citing U.S. v. Teitler, 802

F.2d 606 (2d Cir. 1986)), an “injury from an overt act is necessary and sufficient to

establish civil standing for a RICO conspiracy violation.” Id. Moreover, “[bjecause of

the nature of the offense, an agreement often may only be established by

circumstantial and indirect evidence including the overt actions of the parties”, Jones

v. Commonwealth, 279 Va. 295; (2010) (citing Floyd u. Commonwealth, 219 Va. 575

-■ 11 --

(1978), and, accordingly, “[pjroof of an agreement to commit the overall objective of the

RICO offense ‘may be established solely by circumstantial evidence.”’ Solomon u. Am.

Web Loan, No. 4:17CV145, 2019 WL 1320790, at *1-22 (E.D. Va. Mar. 22, 2019)

(quoting Hecht, 897 F.2d, at 21).

C. Rescue Doctrine

“The rescue doctrine, sometimes referred to as the humanitarian doctrine, rests

on the premise that “[pjersons are held justified in assuming greater risks in the

protection of human life than would be sustained under other circumstances”, and

“[sjentiments of humanity applaud the act, the law commends it, and, if not extremely

rash and reckless, awards the rescuer redress for injuries received, without weighing

with technical precision the rules of contributory negligence or assumption of risk.”

Kimble v. Carey, 279 Va. 652 (2010) (citing Commonwealth v. Millsaps, 232 Va. 502

(1987) (quoting Southern Ry. Co. v. Baptist, 114 Va. 723 (1913)). However, “[i]t is not

reasonable for a court. . . to speak on behalf of courts in other circuits in the country;

those courts are capable of taking appropriate action on their own”, Sieuerding u.

Colorado Bar Ass’n, 469 F.3d 1340 (10th Cir. 2006), and, when establishing standing,

“[a] party asserting this defense must show that he, and not some third party, has been

injured by the. . . conduct.” In re Perry, 423 B.R. 215 (Bankr. S.D. Tex. 2010) (citing

Williams v. Robinson, No. 12-08-00260-CV, 2009 WL 2356268, at *7-8, 2009 Tex.App.

LEXIS 5982, at *19 (Tex.App.-Tyler, July 31, 2009, no pet.) (quoting Omohundro v.

Matthews, 161 Tex. 367 (I960)).

“Health is a form of public good in that everyone else’s health behaviors improve

the health odds of everyone else”, Jeremy Howard, et al., Face Masks Against COVID- 12 --

19: An Evidence Review, Preprints (May 13, 2020) (citations omitted); however, while

acts of a “Good Samaritan” may provide evidence of character, Estep v. Ballard, 502 F.

App’x 234 (4th Cir. 2012), and ‘the law is well[-]settled that it is not contributory

negligence per se for one voluntarily to risk his own safety or life in attempting to

rescue another from imminent da nger caused by the negligence of the defendant”, such

a party “would not be thereby relieved from the duty of exercising ordinary care for her

own safety.” Wright v. Atlantic Coast Line R. Co., 110 Va. 670 (1910) (citation omitted).

And, of record, Appellee WUSA9 averred that “it is implausible that WUSA9

a CBS affiliate — would conspire with the ABC network and its main late-night

personality on anything”, WUSA9 Motion to Dismiss Second Amended Complaint, and,

contravening their own argument, on behalf, if not behest of the nonresponsive

Appellees ABC Legal, Sinclair broadcast Group and WJLA, codefenants in an action

arising under the federal racketeering statute, 18 U.S.C. § 1964(c), they yet reject that,

pursuant to Fed.R.Civ.Pro. 55(h), “[w]hen a party against whom a judgment for

affirmative relief is sought has failed to plead or otherwise defend, and that failure is

shown by affidavit or otherwise, the clerk must enter the party’s default.”

Clearly, while “the threa: of a sanction should not be used to stifle counsel in

advancing novel legal theories or asserting a client’s rights in a doubtful case”, Buxton

v. Murch, No. 2026-03-2, 2004 ;WL 1091903, at *1-6 (Va. Ct. App. May 18, 2004)

(quoting Tonti v. Akbari, 262 Va . 681 (2001)), “[b]y presenting to the court a pleading,

written motion, or other paper—whether by signing, filing, submitting, or later

advocating it—an attorney or unrepresented party certifies that to the best of the

person’s knowledge, information, and belief, formed after an inquiry reasonable under

-- 13 --

the circumstances: (1) it is not being presented for any improper purpose, such as to

harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the

claims, defenses, and other legal contentions are warranted by existing law or by a

nonfrivolous argument for extending, modifying, or reversing existing law or for

establishing new law; (3) the factual contentions have evidentiary support or, if

specifically so identified, will likely have evidentiary support after a reasonable

opportunity for further investigation or discovery; and (4) the denials of factual

contentions are warranted on the evidence or, if specifically so identified, are

reasonably based on belief or a lack of information.” Fed.R.Civ.Pro. 11(b).

And, of record, such an Affidavit, authorized under Fed.R.Civ.Pro. 55(a), had

been filed with the Trial Court, but to which, upon consideration of Appellee WUSA9’s

fierce objection, Appellant, in clear abuse of discretion, was, therefor, threatened with

sanction for filing any similarly frivolous pleadings.” Affidavit Dismissal Order.

Yet, all Appellees should be aware that, inter alia, in a motion for summary

judgment, “[a] party asserting that a fact cannot be or is genuinely disputed must

support the assertion by. . . citing to particular parts of materials in the record,

including depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials”, Fed.R.Civ.Pro. 56(c)(1)(A),

identified as “Supporting Factual Positions”, and “[a]n affidavit or declaration used to

support or oppose a motion must be made on personal knowledge, set out facts that

would be admissible in evidence, and show that the affiant or declarant is competent

to testify on the matters stated.” Fed.R.Civ.Pro. 56(c)(4). (emphasis added)

-- 14 --

Yet, in a motion to dismiss, still at the preliminary pre-discovery stage, governed

by Fed.R.Civ.Pro. 26 and 34, “[a] motion to dismiss under Rule 12(b)(6) tests [only] the

sufficiency of a complaint; importantly, it does not resolve contests surrounding the

;

facts, the merits of a claim, or thie applicability of defenses”. Republican Party of N.C.

v. Martin, 980 F.2d 943 (4th Cir.1992). (emphasis added) And, hence, prior to the

discovery stage, or a motion for summary judgment, particularly in a matter brought

under the federal racketeering statute, ” “in a multiple party, multiple claims action

such as this”, Laughing, No. 92-CV-555, 1996 WL 252660, at *1-16, in which “Plaintiff

must also adequately identify a RICO enterprise.” Lopez v. Pastrick, No. 205-CV-452,

2007 WL 1042140, at *1-6 (N.D. Ind. Apr. 4, 2007), the rebuttal filed by RespondentAppellee WUSA9 would be analogous to a motion to exclude evidence, at least

prematurely under the controlling rules.

Far more intriguingly, certainly most are certainly aware, or should be aware

that, “[t]o establish standing, the plaintiff must show: (1) an injury in fact, (2) a causal

connection between the injury and the conduct complained of, and (3) that the injury

is not speculative and will likely be redressed by a favorable decision”. Dobrich v. Walls,

380 F. Supp. 2d 366 (D. Del. 2005) Moreover, “[t]o establish an ‘injury in fact,’ the

plaintiff must ‘show that he [or she] personally has suffered some actual or threatened

injury as a result of the putatively illegal conduct of the defendant’,” Id. (quoting

Valley Forge Christian College v. Americans United For Separation Of Church And

State, Inc., 454 U.S. 464 (1982) (citations omitted)).

And yet like the Trial Court, as to the plain and simply stated rule that, “[w]hen

a party against whom a judgment for affirmative relief is sought has failed to plead or

-- 15 --

otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must

enter the party’s default”, Fed .R.Civ.Pro. 55(a) (emphasis added), for unknown

motivating reasons, Appellee WUSA9, acting as a Good Samaritan, “speaking for a

friend”, had taken early and strenuous exception to this well-established rule, with the

Trial Court’s complete acquiescence, as interpreted by Appellant, notwithstanding, the

rule, certainly bounding and restricting Appellant, that “[t]he plaintiff cannot base his

claims on the legal rights or interests of third parties or on ‘generalized grievances’ or

“abstract questions of wide put lie significance.’” Dobrich, 380 F. Supp. 2d, at 366

(quoting Valley Forge Christian College, 454 U.S., at 464).

Clearly, Fed.R.Civ.Pro. 55(a) mandates that “[w]hen a party against whom a

judgment for affirmative relief is sought has failed to plead or otherwise defend, and

that failure is shown by affidavit or otherwise, the clerk must enter the party’s default”,

and the record supports no other conclusion than that Appellees ABC Legal, Sinclair

Broadcast Group and WJLA have yet to have appeared or presented a responsive

pleading. On analogous facts, finding a party having been served notice, “even if not in

the usual way”, Courts of the Commonwealth have found, to prevent a manifest

injustice, that “ [i] t was not only competent for. .. [them] to speak in time and be made

a party if. . . [they] had not been, but it was. . . [their] duty.” Hill v. Woodward, 78 Va.

765 (1884). Finding one notoriously accused who had endeavored, through subterfuge

and disguise to evade capture of a decade and a half, that tribunal had concluded,

“undoubtedly. . . [they] knew the value of the tale about ‘administration of tonics,’ to

which. .. [they] put.. . [their] signature.” Eichmann, 36 I.L.R., at 5.

Clearly, jurisdiction is proper, where “a United States court of appeals has

-- 16--

entered a decision in conflict with the decision of another United States court of appeals

on the same important matter” and/or “has so far departed from the accepted and

usual course of judicial proceedings, or sanctioned such a departure by a lower court,

as to call for an exercise of this Court’s supervisory power”. S.Ct.R. 10(a).

II.

Whether, for purposes of dismissal, under Fed.R.Civ.Pro. 12(b)(6), a civil

remedy exists, under 18 U.S.C. § 1964(c), as a claim to which a plaintiff could

expect a court of competent jurisdiction to award relief.

Jurisdiction is proper where “a United States court of appeals has entered a

decision in conflict with the decision of another United States court of appeals on the

same important matter” and “has so far departed from the accepted and usual course

of judicial proceedings, or sanctioned such a departure by a lower court, as to call for

an exercise of this Court’s supervisory power”. S.Ct.R. 10(a). It is axiomatic that “you

do not kill women and children”, and even a soldier “must use common sense”, such

that “[i]f they have a weapon and are trying to engage you, then you can shoot back,

but you must use common sense.” Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975).

And, at least the law of soldiers dictates a rule that “ [t] he acts of a subordinate

done in compliance with an unlawful order given him by his superior are excused and

impose no criminal liability upon him unless the superior’s order is one which a man

of ordinary sense and understanding would, under the circumstances, know to be

unlawful, or if the order in question is actually known to the accused to be unlawful”,

and “[wjhether Lieutenant Calley was the most ignorant person in the United States

Army in Vietnam, or the most intelligent, he must be presumed to know that he could

not kill the people involved here!” U.S. u. Calley, 22 U.S.C.M.A. 534 (1973).

A. Beyond a Reasonable Doubt

-- 17 --

Courts considering the civil remedies available under the federal racketeering

statute, 18 U.S.C. 1964(c), have suggested that “[a]t least three different standards of

proof are within the realm of possibility: proof beyond a reasonable doubt, proof by

clear and convincing evidence, and proof by a preponderance of evidence”, Spinelli,

Kehiayan-Berkman, S.A. v. Imat Gruner, A.I.A., & Assocs., 602 F. Supp. 372 (D. Md.

1985). The nexus to criminal liability, of necessity invokes those proceedings

contemplated under the Federal Rules of Criminal Procedure, dictating different

tactics and strategies, if only tp avert triggering the rule that “[w]hen the public

interest so requires, the court must order that one or more grand juries be summoned.”

Fed.R.Crim.Pro. 6(a). And, Article III Courts have ruled that “[t]o properly convict, the

government must prove every element of each offense charged beyond a reasonable

doubt”, Kimble, 719 F.2d, at 1253. Yet, “[i]f a matter is not admitted, the answer must

specifically deny it or state in detail why the answering party cannot truthfully admit

or deny it”, Fed.R.Civ.Pro. 34(a)(4) (emphasis added), of imperative importance when

within a civil complaint there exist elements that would require proof beyond a

reasonable doubt.

“[T]he Due Process Clause protects the accused against conviction except upon

proof beyond a reasonable doubt of every fact necessary to constitute the crime with

which he is charged.” In re Winship, 397 U.S. 358 (1970). And, in a criminal matter,

“[i]t is elementary that the burden is on the Commonwealth to prove every essential

element of the offense beyond a reasonable doubt”, Powers u. Commonwealth, 211 Va.

386 (1970), and “[t]his fundamental precept has been the bedrock of Virginia’s criminal

jurisprudence since the inception of this Commonwealth.” Bishop u. Commonwealth,

--18--

275 Va. 9 (2008). Moreover, “[i]n a criminal case, the defendant is entitled to an

acquittal, unless his guilt is established beyond a reasonable doubt.” Savage v.

Commonwealth, 84 Va. 582 (1888).

Accordingly, “in cases where the acts of the defendant or the enterprise were

inherently unlawful, such as murder..., the courts generally have concluded that the

requisite threat of continuity was adequately established by the nature of the activity,

even though the period spanned by the racketeering acts was short.” Eisert v. Town of

Hempstead, 918 F. Supp. 601 (E.b.N.Y. 1996) (citing U.S. v. Aulicino, 44 F.3d 1102 (2d

Cir.1995)).

“’There is no such defect in the law. . . as that the person who intentionally

inflicts a wound calculated to destroy life, and from which death ensues, can throw

responsibility for the act upon either the carelessness or ignorance of his victim, or

shield himself behind the doubt which disagreeing doctors may raise as to the

treatment proper for the case”, Clark v. Commonwealth, 90 Va. 360 (1893) (quoting 3

Greenl. Ev. § 139). Moreover, “[w]here an election is once made by a party bound to

elect, either expressly or impliedly, with full knowledge of all the facts, it binds him

and those who claim under him, although made in ignorance of the law.” Waggoner v.

Waggoner, 111 Va. 325 (1910) (citing Penn v. Guggenheimer, 76 Va. 839 (1882)).

B. Facial Plausibility

Stating a minimum, not a maximum, “Federal Rule of Civil Procedure 8(a)(2)

requires only ‘a short and plain statement of the claim showing that the pleader is

entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and

the grounds upon which it restsj’. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)

.-19-

(quoting Conley u. Gibson, 355 U, S. 41 (1957)). On the other hand, “[w]hile a complaint

attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual

allegations,” Id. (citations omitted), nonetheless, “a complaint should not be dismissed

for failure to state a claim 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.” . Twombly, 550

U.S., at 544 (quoting Gibson, 355 U. S., at 41).

The Trial Court concedes that Appellant’s allegations “rely only on state

violations, others rely on criminal violations which he cannot charge”. Dismissal Order,

and yet “[a] ‘pattern of racketeering activity,’ requires a showing of at least two related

predicate acts of racketeering activity occurring within a ten year period”, Ferri v.

Berkowitz, 678 F. Supp. 2d 66 (E.D.N.Y. 2009) (citing 18 U.S.C, § 1961(5), and

“[predicate acts of racketeering activity include a variety of federal and state criminal

offenses.” Id.

C. Pattern of Racketeering Activity

Like Appellee WUSA9, Appellees American Broadcast Company, James

Christian Kimmel and the Jimmy Kimmel Live! Show concede that “Plaintiff asserts.

. . that the absence of the Kimmel interview video from that particular website” had

occurred, ABC Respondents’ Motion to Dismiss, while yet ignoring averments in the

Amended Complaint at ^H| 83 to 92, brought under 18 U.S.C. § 1519, for spoliation, a

predicate offense under the federal racketeering statute, 18 U.S.C. § 1961(1)(B). And,

, “[a] motion to dismiss. . . does not resolve contests surrounding the facts, the merits

of a claim, or the applicability of defenses”. Republican Party ofN.C., 980 F.2d, at 943.

“To survive a motion to dismiss, a complaint must contain sufficient factual

-- 20 --

matter, accepted as true, to ‘state! a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662 (2009) (citing Twombly, 550 U.S., at 544). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged”, Id. (citing

Ibid.), a standard sufficiently |met to find the nonresponsive Appellees evincing

evidence to raise a reasonable inference of “consciousness of guilt.” Pungitore, 910 F.2d,

at 1084 (citation omitted). “The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id. (citing Ibid.).

D. “Murder Most Foul”1

“The civil RICO statute, which underlies the RICO tort claim at issue here,

provides, in pertinent part, that it is illegal ‘for any person employed by or associated

with any enterprise engaged in, or the activities of which affect, interstate or foreign

commerce, to conduct or participate, directly or indirectly, in the conduct of such

enterprise’s affairs through a pattern of racketeering activity.’” Whitney, Bradley &

Brown, Inc. v. Kammermann, 4.36 F. App’x 257 (4th Cir. 2011) (quoting 18 U.S.C. §

1962(c)). Further, under this provision, a complainant “must prove both the existence

of an ‘enterprise’ and the connected ‘pattern of racketeering activity’”, Turkette, 452

U.S., at 576), while “[a] ‘pattern’ consists of two or more of these predicate acts within

10 years of each other.” Saine v. A.I.A., Inc., 582 F. Supp. 1299 (D. Colo. 1984) (citing

18 U.S.C. § 1961(5)).

William Shakespeare, Hamlet, Act I, Scene 5(1514).

" 21 --

Mindful that“[s]ome constitutional rights remain]] ‘personal rights which... may

not be vicariously asserted”’, including “the Fifth Amendment right against self

incrimination”, Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), as revised

(June 27, 2016) (citing Rakas v. Illinois, 439 U.S. 128 (1978)), and when “not raise[d].

. . in the trial court, may be waived when not expressed during trial”. Jones v.

Commonwealth, 293 Va. 29, cert, denied sub nom. Jones v. Virginia, 138 S. Ct. 81 (2017)

(citing Jones v. Commonwealth, 230 Va. 14 n.l (1985)), Appellees, in demurrer, assert

as inscrutable the words appearing in the Amended Complaint at f 140:

Kimmel, the Kimmel Show and ABC TV, members of an enterprise, as alleged

above, did, individually, jointly or severally, after on or about May 21, 2016, in

violation of 18 U.S.C. § 1961(1)(A), which provides, in relevant part, that

“’racketeering activity’ means. . . any act or threat involving murder, . . . which

is chargeable under State law and punishable by imprisonment for more than

one year”, did attempt the murder of Petitioner, a person known to be afflicted

with a major depressive disorder, demonstrating reckless disregard for human

life, see Commonwealth u. Carter, 474 Mass. 624 (2016), see also Persampieri v.

Commonwealth, 343 Mass. 19 (1961), attempting to incite a person with a

vulnerable mental and emotional condition to suicide, conditions that proved

fatal for one depressed former White House Deputy Counsel General. David

Emery, “Did Vince Foster Shoot Himself ‘Three Times in the Back of the Head’

to Avoid Testifying Against Hillary Clinton?” Snopes, September 20, 2018,

updated September 21, 2018.

“As the Court held in Twombly, 550 U.S. 544, the pleading standard Rule 8

announces does not require ‘detailed factual allegations,’ but it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft, 556 U.S., at

662 (citing Ibid.) (citing Papasan v. Allain, 478 U.S. 265 (1986))”. “A pleading that

offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of

action will not do’”, Id. (quoting Ibid.); “[n]or does a complaint suffice if it tenders

‘naked assertion[s]’ devoid of ‘further factual enhancement”, Id. (quoting Ibid.), a

- 22 --

threshold satisfied in the Amended Complaint. And, “ a court must accept as true all

;

of the allegations contained in a 'complaint”, while “inapplicable to legal conclusions.”

Id. However, “where the well-pleaded facts do not permit the court to infer more than

the mere possibility of misconduct,

the complaint has alleged—but it has not

‘show[tl]’—'that the pleader is entitled to relief.”’ Id. (quoting Fed. Rule Civ. Proc.

8(a)(2)).

Accordingly, even “a wholly conclusory statement of claim would survive a

motion to dismiss whenever the pleadings left open the possibility that a plaintiff might

later establish some ‘set of [undisclosed] facts’ to support recovery”. Twombly, 550

U.S., at 544.

Clearly, 18 U.S.C. § 1964(c) provides that “[a]ny person injured in his business

or property by reason of a violation of section 1962 of this chapter may sue therefor in

any appropriate United States district court and shall recover threefold the damages

he sustains and the cost of the suit, including a reasonable attorney’s fee, except that

no person may rely upon any conduct that would have been actionable as fraud in the

purchase or sale of securities to establish a violation of section 1962.”

Clearly, the Congress hds provided that, without exception, “[a]ny person

injured in his business or property by reason of a violation. . . sue therefor in any

appropriate United States district court”, 18 U.S.C. § 1964(c), while a claim that any

plaintiff, commencing suit under this provision, “rely only on state violations, others

rely on criminal violations whiclj he cannot charge”, Dismissal Order, and “[a] finding

is ‘clearly erroneous’ when. . . thle reviewing court on the entire evidence is left with a

definite and firm conviction that a mistake has been committed’”. Anderson v. City of

-- 23 -i

Bessemer City, N.C., 470 U.S. 564 (U.S. 1985) (quoting U.S. u. U.S. Gypsum Co., 333

U.S. 364 (1948)).

Accordingly, on the record, jurisdiction is proper, where “a United States court

of appeals has entered a decision in conflict with the decision of another United States

court of appeals on the same important matter” and/or “has so far departed from the

accepted and usual course of judicial proceedings, or sanctioned such a departure by a

lower court, as to call for an exercise of this Court’s supervisory power”. S.Ct.R. 10(a).

III.

Whether, for purposes of a final order, treating in disparate treatment a

litigant, vis a vis similarly situated others, it is a denial of equal protection

under 42 U.S.C. § 1981, or, in the alternative, under the Fifth Amendment,

to issue a nonprecedential order applying only to that case and litigant.

“A lie is a lie, no matter what its subject, and, if it is in any way relevant to the

case”. Com. v. Manigo, 2010 WL 468084 (Va.Cir.Ct. 2010). And, where a party to

litigation’s “silence was not the result of guile or a desire to prejudice matters little, ..

. for its impact was the same, preventing, as it did, a trial that could in any real sense

be termed fair.” Id.

“The term ‘moral turpitude’ refers to behavior ‘that shocks the public conscience

as being inherently base, vile, or depraved’,” Uribe u. Sessions, 855 F.3d 622 (4th Cir.

2017) (quoting Mohamed v. Holder, 769 F.3d 885, 888 (4th Cir. 2014)(citations

omitted), and “conduct deliberately intended to injure in some way unjustifiable by any

government interest is the sort of official action most likely to rise to the conscienceshocking level,” rebutting even a claim in defense of sovereign immunity. Cty. of

Sacramento u. Lewis, 523 U.S. 833 (1998). Moreover, the authority in exercise of

inherent powers, is often rather limited to “the extraordinary circumstances where bad

- 24 --

faith or abuse can form a basis for doing so.” Hensley v. Alcon Labs., Inc., 277 F.3d 535

(4th Cir.2002) (citing Chambers v. Nasco, Inc., 501 U.S. 32 (1991)).

“A nonprecedential order is one that... does not add significantly to the body of.

. . case law”, and “[p]arties may cite nonprecedential orders, but such orders have no

precedential value”, such that “judges are not required to follow or distinguish them in

any future decisions”, while “a precedential decision issued as an Opinion and Order

has been identified... as significantly contributing to... case law.” Oglesby v. U.S.P.S.,

Docket Number DC-0752-20-0387-1-1 (MSPB May 10, 2022) (citing 5 C.F.R. §

1201.117(c)). And yet, “’[a]ll power may be abused if placed in unworthy hands’”, but

“’[t]he courts cannot prevent abuse of power, but can sometimes correct it.’” U.S. v.

Chalk, 441 F.2d 1277 (4th Cir. 1971) (quoting Luther v. Borden, 48 U.S. (7 How.)

(1849)).

In a recent decision, Justice Sotomayor had observed that “there is no rational

basis for Congress to treat needy citizens living anywhere in the United States so

differently from others” and had concluded that “[t]o hold otherwise, as the Court does,

is irrational and antithetical to the very nature of the SSI program and the equal

protection of citizens guaranteed by the Constitution.” U.S. v. Vaello Madero, 596 U.S.

__ (2022) (Sotomayor, J. dissenting). This is that case, for no reason has been stated,

other than deeming the complainant’s affidavit frivolous, even though expressly

authorized under Fed.R.Civ.Pro. 55, for treating him in disparate treatment, vis a vis

similarly situated others, to whom a default judgment would be awarded, where a

defendant has failed to provide answer to a complaint, after being brought under the

personal jurisdiction of the Trial Court, especially after service of process being

-- 25 --

perfected by the U.S. Marshal, upon mandate by that court.

In that recent case, Justice Thomas had joined “to address the premise that the

Due Process Clause of the Fifth Amendment contains an equal protection component

whose substance is ‘precisely the same’ as the Equal Protection Clause of the

Fourteenth Amendment”, Id. (quoting Weinberger u. Wiesenfeld, 420 U.S. 636, n. 2

(1975)) (Thomas J. joining). And, considering this question of statutory construction,

Justice Thomas had suggested, regarding the Civil Rights Act of 1866, 42 U.S.C. §

1981, that it had “contained! a citizenship clause similar to the Fourteenth

Amendment’s”, and further had concluded that “[t]he provision immediately

succeeding that citizenship guarantee clarified that ‘such citizens, of every race and

color’ were entitled to ‘the same right, in every State and Territory in the United States,

. . . and to full and equal benefit j of all laws and proceedings for the security of person

and property, as is enjoyed by white citizens, and shall be subject to like punishment,

pains, and penalties, and to none other.” Vaello Madero, 596 U.S.

(quoting 42

U.S.C. § 1981(a)). And, “[fjleshing out the implications of the citizenship declaration,

this clause suggests that the rignt to be free of racial discrimination with respect to the

enjoyment of certain rights is a constituent part of citizenship.”

Clearly, at the founding of an inchoate, democratic republic, we held certain

“truths to be self-evident”, Declaration of Independence, to include the proposition “that

all men are created equal,” and the Civil Rights Act of 1866 had embraced that claim,

guaranteeing an enjoyment of equal protection “to all persons”, 42 U.S.C. § 1981(a),

not just citizens or residents, as had been “endowed by their Creator”, and considered,

accordingly, as “unalienable Rights”. Yet, “to secure these rights, Governments are

-- 26 --

instituted among Men,” even if “deriving their just powers from the consent of the

governed”. Declaration of Independence. And, even then, most knew, as Lord Acton had

observed, “[a]ll power tends to corrupt; absolute power corrupts absolutely”, kentuck,

“Power tends to corrupt and absolute power corrupts absolutely,” Democratic

Underground, June 8, 2018. https://www.democraticunderground.com/1002107Q9299.

In remedy, one Founder had suggested, for checks and balances, and separated

powers, an “extended republic of the United States, and among the great variety of

interests, parties and sects”, and, in that treatise had warned, therefore, that “the

security for civil rights must be the same as for religious rights.” James Madison,

Federalist 51, February 6, 1788. Another Founder had suggested that “[o]ur

Constitution was made only for a moral and religious People” and that “[i]t is wholly

inadequate to the government of any other”. John Adams, Address to the Massachusetts

Militia, October 11, 1798. And yet, in the realm of those things once sacred, as religion,

“we are engaged in a great civil war, testing whether that nation, or any nation so

conceived and so dedicated, can long endure”, Abraham Lincoln, Gettysburg Address,

November 19, 1863, and a contentiously partisan politics where “months of discord

about the coronavirus epidemic have transformed the cloth mask into a potent political

symbol, touted by Democrats as a key part of communal responsibility, labeled by some

GOP leaders as a sign of government overreach and as a scarlet letter pinned on the

weak”, Ben Guarino, Chelsea Janes & Ariana Eunjung Cha, “Spate of new research

supports wearing masks to control coronavirus spread,” Washington Post, June 13,

2020. However, “ [a] house divided against itself cannot stand.” Abraham Lincoln,

House Divided Speech, June 16, 1858.

-- 27 --

Although still “man holds in his mortal hands the power to abolish all forms of

human poverty and all forms of human life”, long past are the days where we “observe

not a victory of party but a celebration of freedom--symbolizing an end as well as a

beginning-signifying renewal as well as change.” John F. Kennedy, Inaugural

Address, January 20, 1961. But, at least that leader advised, “We dare not forget today

that we are the heirs of that first revolution.” Id.

Courts have observed thait “[legislative action is reasonable if the matter in

issue is fairly debatable”, Bd. of Supervisors v. Lerner, 221 Va. 30 (1980), and “[a] facial

challenge to a legislative Act is, of course, the most difficult challenge to mount

successfully, since the challenger must establish that no set of circumstances exists

under which the Act would be valid.” U.S. v. Salerno, 481 U.S. 739 (1987).

Nonetheless, in a well-developed exposition regarding the distinction between a

facial challenge and an as-applied challenge, one aspirational Negro clergymen, oft

quoted, had opined that “[sjometimes a law is just on its face and unjust in its

application”, noting in example that “there is nothing wrong in having an ordinance

which requires a permit for a parade”; however proffering that “ such an ordinance

becomes unjust when it is used to maintain segregation and to deny citizens the FirstAmendment privilege of peaceful assembly and protest.” Martin Luther King, Jr.,

Letter from a Birmingham Jail, April 16, 1963. And, clearly, on the record, this is that

case.

“[A] decent respect to the opinions of mankind requires that they should declare

the causes which impel them to the separation”, Declaration of Independence, and this

Court has promulgated the rule :hat “[i]t is a ‘foundational principle of administrative

-- 28 --

law’ that judicial review of agency action is limited to ‘the grounds that the agency

invoked when it took the action’”, Dep’t of Homeland Security v. Regents of University

of California, 591 U.S.

(2020) (quoting Michigan v. EPA, 576 U.S. 743 (2015)), such

that “[i]f those grounds are inadequate, a court may remand” and “the agency can offer

‘a fuller explanation of the agency’s reasoning at the time of the agency action.’” Id.

(quoting Pension Benefit Guaranty Corporation v. LTV Corp., 496 U.S. 633 (1990). See

also Alpharma, Inc. v. Leavitt, 460 F.3d 1 (CADC 2006) (Garland, J.)).

“[Tjhere is a breakdown in the court’s operations where an administrative board

or body is negligent, acts improperly or unintentionally misleads a party.” Union Elec.

Corp. v. Bd. of Prop. Assessment, 560 Pa. 481 (2000). Accordingly, nunc pro tunc “is a

far-reaching equitable remedy applied in certain exceptional cases, typically aimed at

rectifying any injustice to the parties suffered by them on account of judicial delay.”

Iouri v. Ashcroft, 487 F.3d 76 (2d Cir. 2007) (internal citations and quotation marks

omitted).

And, in an action commenced over a year ago, by a political campaign committed,

about which “it can hardly be doubted that the constitutional guarantee has its fullest

and most urgent application precisely to the conduct of campaigns for political office”,

Monitor Patriot Co., 401 U.S., at 265„ clearly “[t]he loss of First Amendment freedoms,

for even minimal periods of time, unquestionably constitutes irreparable injury”. Doe

v. Tangipahoa Par. Sch. Bd., 6£ 1 F. Supp. 2d 823 (E.D. La. 2009) (quoting Elrod v.

Burns, 427 U.S. 347 (1976)).

“It is to be pointed out here that even the jurists of the Third Reich did not dare

to put on paper that obedience to orders is above all”. Eichmann, 361.L.R., at 5. A court

- 29 -■

of competent jurisdiction and reasonable trier of fact and law would conclude from a

claim that repeals, with the strob e of a pen, the civil remedy in the federal racketeering

statute, on the rationale that it would “not add significantly to the body of... case law”,

or that it had not “been identified. . . as significantly contributing to. . . case law”,

Oglesby, Docket Number DC-0752-20-0387-1-1 (citing 5 C.F.R. § 1201.117(c)), would

conclude that the ‘‘proffered explanation.. is. unworthy. of credence”,.. Texas . Dept., of

Comm.. Affairs. v_._ Burdine.* 450 U. S.. 248 .(1981).

In the case of Brown v. Payton, 544 U.S. 133 (2005), the Court poignantly

observed, “If a prosecutor had stood before a jury and denied that a defendant was

entitled to a presumption of innocence; if the judge refused to correct him and failed to

give any instruction on the presumption of innocence; if the judge’s instructions

affirmatively suggested there might not be a presumption of innocence; would anyone

doubt that there was a reasonable possibility that the jury had been misled?” This is

that case.

Clearly, jurisdiction is proper, where “a United States court of appeals has

entered a decision in conflict withI the decision of another United States court of appeals

o:i the same important matter” and/or “has so far departed from the accepted and

u sual course of judicial proceedings, or sanctioned such a departure by a lower court,

as to call for an exercise of this Court’s supervisory power”. S.Ct.R. 10(a).

CONCLUSION

For the reasons stated in this application, Appellant respectfully requests grant

certiorari on the issues of the grant of default judgment, Fed.R.Civ.Pro. 55, and

continued validity of a civil provision under the federal racketeering statute, 18 U.S.C.

-- 30 --

§ 1964(c), as well as an as-applied challenge to the usage of nonprecdential opinions

used, in this instance, to deprive a litigant of his rights to equal protection and due

process, in derogation of 42 U.S.C. § 1981(a), and, in equity, such relief as this

Honorable Court may deem required to ensure the administration of justice. In re

White, No. 2:07CV342, 2013 WL 5295652, at *1-71 (E.D. Va. Sept. 13, 2013).

CERTIFICATION

I declare under penalty of perjury that the foregoing is true and correct.

Name of Party (Print or Type): Major Mike Webb, 955 S. Columbus Street, Unit #

426, Arlington, Virginia 22204, GiveFaithATrv@gmail.com. 856-220-1354.

Executed on:

Signature of Party

(Date)

Subscribed, acknowledged and sworn to before me, the undersigned Notary

Public in the County of

Virginia, this

the

day of

Commonwealth

, 20.

NOTARY PUBLIC

/iZ/^/IhcH? Registration Number:

My commission expires:

/£•'" KB? \%\

= _ / REG. #7800067 *

| £ MY COMMISSION : S 5

EXPIRES

/2f

\%\ 12/31/2027 / <5§

-- 31 -

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.