Petition for Writ of Certiorari — C. Holmes, Petitioner v. Anne Milgram, Administrator, Drug Enforcement Administration

Supreme Court briefFeb 12, 2024

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23-1205, 23-1591, 23-1749

(USDC-SC 2:22-cv-03758-BHH)

IN THE

SUPREME COURT OF THE UNITED STAT

filed

FEB 1 2 2024

C. Holmes, MD,

Petitioner,

Anne Milgram,

Administrator of DEA,

in official capacity and

individually,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

U.S. COURT OF APPEALS FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

C. Holmes, MD

PO Box 187

Sullivans Island, SC 29482-0187

843.883.3010

QUESTIONS PRESENTED

1. Whether the lower appellate court misapprehends appealability and/or

overlooks the request an'd denial in the district court for certification of appeal and

motion for stay pending appeal of denial of substantial rights incapable of

vindication on appeal.

2. Whether denial of the substantial right of de novo determination by Article III

judicial Officer without Report and Recommendation (R&R) on dispositive matters,

hereafter coerced R&R, impermissibly denies/diminishes substantial rights

including but not limited to, judicial review through change in the standard of

review with R&R and/or diminished time to file objections/appeal of R&R with

potential loss of full, fair, and meaningful review if deemed untimely.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

RELATED CASES

None

TABLE OF CONTENTS

Opinions Below

Jurisdiction

Constitutional and Statutory Provisions Involved...

Facts

Reasons for Granting the Writ

Conclusion

INDEX TO APPENDICES

Appendix A

US COA for the Fourth Circuit decision.

Appendix B

USDC-SC Charleston Division decision.

Appendix C

US COA correspondence.

TABLE OF AUTHORITIES

CASES

Accident, Injury & Rehab., PC v. Azar,

336 F.Supp.3d 599 (D. S.C. 2018)

27,30,35,38

Banks v. United States,

614 F.2d 95 (6th Cir.1980)

Beacon Theatres, Inc. v. Westover, 3

59 U.S. 500 (1959)...................

Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co.,

550 F.2d 189 (4th Cir. 1977)................

Branch v. Umphenour, 936 F.3d 994

(9th Cir. 2019).........................

Brown v. Felsen, 442 U.S. 127,131 (1979)....

CAB i/. Carefree Travel, Inc.,

513 F.2d 375 (CA2 1975)

Calderon \/. Waco Lighthouse for the Blind,

630 F.2d 352 (5th Cir.1980)..............

Callum v. CVS Health Corp.,

137 F.Supp.3d 817 (D.S.C. 2015)

Centro Tepeyac v. Montgomery County,

722 F.3d 184 (4th Cir. 2013).........

19,30,36

Cohen v. Beneficial Industrial Loan Corp.

337 U.S. 541 (1949).......................

7,8,26

Coleman v. Labor & Indus. Review

Comm'n, 860 F.3d 461(7th Cir. 2017)..

21,25

Commodity Futures Trading Commission \/.

Schor Conticommodity Services, Inc v.

Schor, 478 U.S. 833 (1986).........................

9,10

Coolidge v. Schooner California,

637 F.2d 1321 (1983).......

Cooter & GelI v. Hartmarx Corp.,

496 U.S. 384 (1990)..........

31,36

County of Sacramento v. Lewis,

523 U.S. 833 (1998)........

DeCosta v. Columbia Broadcasting System,

Inc., 520 F.2d 499 (1st Cir.1975)......

Denton v. Hernandez, 504 U.S. 25 (1992)....

31,34

Direx Israel, Ltd. i/. Breakthrough Medical Corp.,

952 F.2d 802 (4th Cir. 1992)...............

33,40

Fidrych V. Marriott Int'l, Inc., 952 F.3d 124

(4th Cir. 2020)...................................

18,19

Flowers v. Crouch-Walker Corp.,

507 F.2d 1378 (7th Cir. 1975)

Ford v. Estelle, 740 F.2d 374 (5th Cir.1984)..

Fuentes v. Shevin, 407 U.S. 67 (1972)

Giovani Carandola Ltd. i/. Bason ,

303 F.3d 507 (4th Cir. 2002)

19,32,35,36

Graham Allen Enters., LLC v. Nine Line

Apparel, Inc. (D. S.C. 2017).........

Granny Goose Foods, Inc i/. Brotherhood of

Teamsters Auto Truck Drivers Local

No 70 of Alameda County 8212 1566,

415 U.S. 423 (1974)............................

Hagood i/. Sommerville,

362 S.C. 191 (2005)

Hill v. Jenkins,

603 F.2d 1256 (7th Cir. 1979)

Hilton v. Bra unskill, 481 U.S. 770 (1987)

Holiday v. Johnston, 313 U.S. 342 (1941)

Hughes Network Sys. \/. Interdigital Com me'ns

Corp., 17 F.3d 691 (4th Cir. 1994)......

32,35

Ingram v. Richardson,

471 F.2d 1268 (6th Cir. 1972)

INS v. Chadha, 462 U.S. 919 (1983)

Kimberly v. Arms, 129 U.S. 512(1889)

Koby v. ARS Nat'l Servs., Inc.,

846 F.3d 1071(9th Cir. 2017)

Leaders of A Beautiful Struggle v. Balt. Police

Dep't, 979 F.3d 219 (4th Cir. 2020).....

19,30,36

League of Women Voters of N. Carolina v.

N. C., 769 F.3d 224 (4th Cir. 2014)...

18,34

Marvel v. United States,

719 F.2d 1507 (10th Cir.1983)

Mathews v. Weber, 423 U.S. 261 (1976)

11,12

Mathews v. Eldridge, 424 U.S. 319

38,41

McAdams v. Robinson, 26 F.4th 149

(4th Cir. 2022).........................

8,10

Md. Shall Issue, Inc. v. Hogan,

971 F.3d 199 (4th Cir. 2020)

Merrill Lynch, Pierce, Fenner and Smith v. Bradley,

756 F.2d 1048 (4th Cir.1985)...............

Moore v. Moore, 657 S.E.2d 743 (2008)

Muhich v. Allen,

603 F.2d 1247, 1251 (7th Cir.1979)

Multi-Channel TV Cable Co. v. Charlottesville

Quality Cable Operating Co.,

22 F.3d 546 (4th Cir. 1994)...................

Neitzke v. Williams,

490 U.S. 319, 328 (1989)

Northern Pipeline Const. Co. v. Marathon

Pipeline Co., 458 U.S. 50 (1982)....

Nutramax Labs., Inc. v. Pure Supplements Ltd.,

No. 0:17-CV-01260-JMC,

2017 WL 2772485, at *4

(D.S.C. June 27, 2017).........................

O' Donoghue i/. United States,

289 U.S. 516, 53 S.Ct. 740,

77 L.Ed. 1356 (1933).........

Orpiano v. Johnson, 687 F.2d 44

(4th Cir. 1982).................

15,16,24

Pacemaker Diagnostic Clinic of America, Inc.

v. Instromedix, Inc. , 725 F.2d 537

(9th Cir. 1984) (en banc).....................

Pa I more v. United States,

411 U.S. 389 (1983)

Pashby i/. Delia,

709 F.3d 307 (4th Cir. 2013)

Phelps and Asso., LLC, v. Galloway,

492 F.3d 532 (4th Cir. 2007)..

Pillay v. INS, 45 F.3d 14 (2nd Cir. 1995)

Planned Parenthood S. Atl \/. Baker,

941 F.3d 687 (4th Cir. 2019)..

19,39

Planned Parenthood South Atlantic i/. Kerr,

27 F.4th 945 (4th Cir. 2022)..............

Rainha v. Cassidy,

454 F.2d 207 (1st Cir., 1972)

Real Truth About Obama, Inc. i/. Fed. Election Comm'n,

575 F.3d 342 (4th Cir. 2009.................

Reed v. Board of Election Comm'rs,

459 F.2d 121 (CA1 1972)......

11,13

Rfce v. McKenzie, 581 F.2d 1114

(4th Cir. 1978)..................

19,20

Roell i/. Withrow, 538 U.S. 580 (2003)

10,22,23

‘ ■

Russell v. Lane, 890 F.2d 947

(7th Cir. 1989).............

Samson v. Murray, 415 U.S. 61 (1974)

Synthes USA i/. Davis,

2017 WL 5972705, at *3

Thomas v. United States, 4:22-2638-JD-TER,

3 (D.S.C. Aug. 17, 2022)......................

31,34

Thornton v. Alford, 260 S.E.2d 179 (1979)....

TPO, Inc. v. McMillen, 460 F.2d 348 (7th Cir. 1972).

(7th Cir. 1972)......................................

9,11,13

Ex Parte United States, 242 U.S. 27,

37 S.Ct. 72, 61 L.Ed. 129 (1916)

United States v. Barber, 865 F.3d837

(5th Cir. 2017)...........................

United States v. Johnson, 48 F.3d 806

(4th Cir. 1995)...........................

23,24

United States v. Raddatz,

447 U.S. 667 (1980)

10,11,14,15,24

United States v. Shiraz, unpublished

(4th Cir., filed August 13, 2019)

Walton v. Lindler, 972 F.2d 344

(4th Cir., 1992)...............

Wharton-Thomas v. U.S.,

721 F.2d 922 (3rd Cir. 1983)

10,11,15

Willie James Glover, Plaintiff-Appellee

Cross-Appellant, v. Alabama Board of

Corrections, EtAI., Defendants, James

Towns, Defendant-Appellant

Cross-Appellee., 660 F.2d 120

(5th Cir. 1981)......................................

Wimmer v. Cook, 774 F.2d68

(4th Cir., 1985).............

Wingo v. Wedding, 418 U.S. 461 (1974)

16,22,23

13,16

Winter v. Natural Resources Council, Inc.

555 U.S. 7 (2008)...........................

18,34

Wolff v. McDonnell, 418 U.S. 539 (1974)

STATUTES AND RULES

21 C.F.R. 1301.13(e)

27,34,37-41

L.C.R. 73.02

12,17,21,22

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a

writ of certiorari issue to review the judgment below.

OPINIONS BELOW

The unpublished opinion of the United States court of appeals appears at

Appendix A to the petition.

The opinion of the United States district court appears at Appendix B to the

petition.

JURISDICTION

Jurisdiction is invoked under 28 U.S.C. § 1254(1). Denial of petition for

rehearing was filed January 23, 2024.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Amendment I

Religion and Expression

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble, and to petition the

Government for a redress of grievances. No Soldier shall, in time of peace be

quartered in any house, without the consent of the Owner, nor in time of war, but

in a manner to be prescribed by law.

Amendment V

From the Bill of Rights

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the Militia, when in actual service in time

of War or public danger; nor shall any person be subject for the same offense to

be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property be taken for public use,

without just compensation.

FACTS

The petitioner respectfully submits Petition for a Writ of Certiorari. The

following facts are pertinent to the petition herein. This matter involves arbitrary

governmental acts and conflicting healthcare law causing harm to the petitioner,

a practicing physician, and petitioner's established and prospective patients. The

defendant failed to renew without just cause despite multiple routine renewals in

the past with no interim change. The defendant failed to comply with statutory

requirements for renewal despite evidence establishing timely receipt of renewal

application and the usual and customary statutory payment per 21 C.F.R.

1301.13(e). Attempts to reach out to defendant to resolve the matter were

ignored or rebuffed. This matter was timely filed in the district court with

unambiguous non-consent to a magistrate.

The petitioner timely filed motion for hearing and disposition by the district

court requesting the substantial right of de novo determination by Article III

Judicial Officer without Report and Recommendation (R&R) on dispositive matters.

This matter is wrongfully referred to a magistrate who denied the motions citing a

local rule as authority. Timely amended verified complaint was filed. The district

court overlooked the timely amended verified complaint and made no

determination on the merits. As such, there is no factual basis in the record for

the district court's orders. Timely appeal, certification of appeal, and motion for

stay pending appeal were filed. Timely appeal to the court of appeals was refused

per correspondence found at App. C which is challenged based on, including but

not limited to, Constitutional Amendments I and V. Thereafter, appeal and

petition for rehearing were denied. Petition for Writ of Certiorari is timely filed.

INTRODUCTION

The Great Statesman, Rep. Elijah Cummings, may he rest in peace,

observed, "When we're dancing with the angels, the question will be asked, in

2024, what did we do to make sure we kept our democracy intact?" Emphasis

supplied. Along with Rep. John Lewis, may God rest his soul, it is fitting to

remember these lifetimes of steadfast bravery and unremitting courage. It is

fitting, as well, to remember the beginnings of that democracy. The framers of

our State and Federal Constitutions risked life, limb, and liberty to escape abuses

by the British government.

Both State and Federal Constitutions were deliberately crafted to foreclose

those abuses here. The framers did not need computers, tablets, or cell phones

to discern the basic tenets of fundamental fairness and due process. An impartial

decision-maker was seen as a non-negotiable requirement for preventing such

abuses. The letter and spirit of our cherished Constitution categorically prohibit

deprivation of life, liberty, or property without due process of law, nor shall any

person be denied equal protection of the laws. The right of trial by jury shall be

preserved inviolate. As a corollary, another requirement, deemed mandatory and

prohibitory, is that no single individual, whether British monarch or government

official shall have absolute authority over a citizen's life, liberty, or property

without being subject to the right of appeal with meaningful judicial review.

Accordingly, non-consensual Report & Recommendation (R&R) cannot pass

constitutional muster.

In the instant case, petitioner timely reserves, preserves, does not waive,

and expressly requests fundamental fairness and substantial rights including but

not limited to, meaningful opportunity to be heard at a meaningful time and full

and fair trial by jury. There are examples of pro se filings subjected to a separate

second-class system of so-called justice, where the Local Rules of Court, including

Local Civil Rule 73.02(B), USDC-SC, are gleefully and cavalierly used as a trap for

the unwary. Significantly and materially, there is an abundant body of law

decisively declaring separate is never equal. The acknowledged systemic

institutional biases against minorities and/or pro se litigants threaten our

democracy and feed the appearance of the proverbial "rigged" system. In the pro

se setting, this issue is of exceptional importance as it is capable of repetition,

capable of evading judicial review, and incapable of adequate remedy on appeal.

The following inscription is found at the Four Corners of Law: Where the rule of law

ends, tyranny begins. The Judge J. Waties Waring Judicial Center is named for the

renowned crafter of divine dissents lying in repose in Charleston, who must be

turning over in his grave at the historically persistent lawlessness of the Four

Corners of Law where his name is prominently displayed. As set forth more fully

below, it is respectfully submitted our democracy depends on the basic tenets of

fundamental fairness and due process just as much, if not more so, in this age of

cell phones, tablets, computers, and extraordinary and unprecedented public

health and affiliated economic emergencies ongoing and still unfolding.

To the extent pro se civil litigants are disproportionately affected, these

important public issues involving substantial rights are less likely to come before

this Honorable Court, which supports review.

REASONS FOR GRANTING THE PETITION

1. Whether the lower appellate court misapprehends appealability and/or

overlooks the request and denial in the district court for certification of appeal and

motion for stay pending appeal of denial of substantial rights incapable of

vindication on appeal.

Each assertion set forth in this document that is consistent with the

following is incorporated herein by reference as if here set forth verbatim. This

Court should remand because the lower appellate court misapprehends

appealability herein, overlooks the district court's failure to consider the timely

served and filed amended complaint, and/or overlooks the request and denial in

the district court for certification of appeal and motion for stay pending appeal of

denial of substantial rights incapable of vindication on appeal. To the extent a

district court could or would take advantage of the lower appellate court's lack of

a formal record on appeal (ROA) in the court of appeals, any consent to

magistrate R&R contained in that ROA is falsified. The record establishes coerced

R&R, if not sham consent R&R. To the extent imprecise district court docketing

could or would mislead a lower appellate court, the petitioner's request filed

January 22, 2021, is timely for certification of appeal with stay pending resolution

of the appeal of denial of substantial rights incapable of vindication on appeal.

The lower appellate court decision overlooks or misapprehends that request.

The lower appellate court misapprehends petitioner's appeal based on 28

U.S.C. § 1292(b). It is respectfully submitted that under 28 U.S.C. § 1292(b), the

order is appealable because certification by the district court is untenable,

unreasonable, and/or futile when a basis for the appeal is that the overworked and

underpaid district court judge is not a neutral decision-maker in the request for

the substantial right of de novo determination by Article III Judicial Officer without

Report & Recommendation (R&R) on dispositive matters, for the substantial right

of judicial review which is not impermissibly diminished by R&R without consent,

and/or other questions of exceptional importance. Accordingly, reversal or

remand to the lower appellate court is respectfully requested.

The lower appellate court misapprehends the case of Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541, 546-47 (1949), which recognizes the collateral

order doctrine. The collateral order doctrine states an appellate court will treat a

prejudgment order as essentially "final" if it conclusively resolves an important

issue independent of the merits of the case, and the order is effectively

unreviewable on appeal due to the irreversible effects of the decision, id.

Specifically, the unpublished opinion herein overlooks the material fact that the

petitioner petitions under the collateral order doctrine regarding the request for

the substantial right of de novo determination by Article III Judicial Officer without

R&R, for the substantial right of judicial review which is not impermissibly

diminished by R&R without consent, and/or other questions of exceptional

importance. In addition, these important questions involve substantial rights

incapable of vindication on appeal which must be appealed immediately or be

waived. Further, this petition raises novel issues of great public importance which

support jurisdiction and review. Moreover, the record herein is evidence in itself

that the issues surrounding coerced R&R are capable of and have escaped

multiple timely requests for lower appellate court review thereby establishing

appealability. The record evidences arbitrary governmental acts as well as denial

of meaningful right to petition the government for a redress which establishes

appealability. Accordingly, the case of Cohen, supra, the collateral order doctrine,

discretionary review, inherent authority, original, and/or other jurisdiction support

appealability.

2. Whether denial of the substantial right of de novo determination by Article III

Judicial Officer without Report and Recommendation (R&R) on dispositive matters,

hereafter coerced R&R, impermissibly denies/diminishes substantial rights

including but not limited to, judicial review through change in the standard of

review with R&R and/or diminished time to file objections/appeal of R&R with

potential loss of full, fair, and meaningful review if deemed untimely.

Each assertion set forth in this document that is consistent with the

following is incorporated herein by reference as if here set forth verbatim. The

recent McAdams case provides, "There's no dispute that the magistrate judge

could approve the class action and enter judgment only by consent of the parties.

28 U.S.C. § 636(c)." McAdams v. Robinson, 26 F.4th 149 (4th Cir. 2022). Given that

the record herein reflects timely unambiguous non-consent to a magistrate, this

appeal includes Fifth Amendment due process challenges, it includes challenges

to the propriety of referring to a magistrate a substantive/dispositive matter

despite express request for de novo determination by Article III Judicial Officer

without R&R on substantive/dispositive matters, it includes challenges to referral

of substantive/dispositive matters to a magistrate without consent, and it asserts

lack of statutory authority for magistrates under the facts regarding, including but

not limited to, 28 U.S.C. § 636(b). Under similar circumstances, the Seventh

Circuit found an appeal from a final judgment would provide a wholly inadequate

remedy and held that magistrates have no power, under the Magistrates Act to

decide motions to dismiss or motions for summary judgment, and district judges

have no power to delegate such duties to magistrates. TPO, Inc. v. McMillen, 460

F.2d 348 (7th Cir. 1972). For the reasons stated and for substantial justice

affecting substantial rights, the petitioner respectfully requests reversal.

By way of introduction, the Schorcase observed the following imprecisions

under our carefully considered form of government:

As we explained in INS v. Chadha, 462 U.S. 919, 959, 103 S.Ct. 2764 2788, 77

L.Ed.2d 317 (1983):

"The choices we discern as having been made in the Constitutional

Convention impose burdens on governmental processes that often seem clumsy,

inefficient, even unworkable, but those hard choices were consciously made by

men who had lived under a form of government that permitted arbitrary

governmental acts to go unchecked. . . . With all the obvious flaws of delay [and]

untidiness . . ., we have not yet found a better way to preserve freedom than by

making the exercise of power subject to the carefully crafted restraints spelled out

in the Constitution."

Commodity Futures Trading Commission v. Schor Conticommodity Services, Inc v.

Schor, 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986).

Significantly and materially, the Framers of our cherished Constitution

intended Article Ill's protections to benefit individual litigants:

The Framers also understood that a principal benefit of the separation of the

judicial power from the legislative and executive powers would be the protection

of individual litigants from decisionmakers susceptible to majoritarian pressures.

Article Ill's salary and tenure provisions promote impartial adjudication by placing

the judicial power of the United States "in a body of judges insulated from

majoritarian pressures and thus able to enforce [federal law] without fear of

reprisal or public rebuke." United States v. Raddatz, 447 U.S. 667, 704, 100 S.Ct.

2406 2427, 65 L.Ed.2d 424 (1980).

The following Ninth Circuit case which parallels McAdams, supra, states:

Article III grants judges who wield the judicial power of the United States life

tenure during good behavior and a guaranteed salary that may not be diminished.

These protections are designed to ensure the independence and impartiality of

the judicial officers authorized to decide the merits of a litigant's case. The

Supreme Court has held that litigants in federal court have a personal

right, conferred by Article III, to insist upon adjudication of their claims

by a judge who enjoys the salary and tenure protections afforded by

Article III—protections that magistrate judges lack. Commodity Futures

Trading Commission i/. Schor, 478 U.S. 833, 848, 106 S.Ct. 3245, 92 L.Ed.2d 675

(1986) ; see Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, inc. , 725

F.2d 537, 542 (9th Cir. 1984) (en banc). Roell v. Withrow, 538 U.S. 580, 590, 123

S.Ct. 1696, 155 L.Ed.2d 775 (2003)....

Barring unusual circumstances, the named plaintiffs will have as strong an

interest as the absent class members in having their claims adjudicated by an

independent and impartial decisionmaker.

Koby i/. ARS Nat'l Servs., Inc., 846 F.3d 1071, 1078 (9th Cir. 2017) (emphasis

supplied).

Accordingly, the petitioner requests the protections afforded by Article III which

magistrate judges lack.

Historically, precedent required consent for appointment of a special master

on substantive/dispositive matters:

In Kimberly v. Arms, 129 U.S. 512, 9 S.Ct. 355, 32 L.Ed. 764 (1889), the parties

consented to the appointment of a special master "to hear the evidence and

decide all the issues between" them. Id. at 516, 9 S.Ct. at 356. In concluding that

the court had erred in failing to treat the master's findings of fact and law as

presumptively correct, the Court noted that "[i]t [was] not within the

general province of a master to pass upon all issues." Id. at 524, 9 S.Ct. at

359. However, "when the parties consent to the reference of a case to a

master or other officer to hear and decide all the issues

the master is

clothed with very different powers from those which he exercises upon

ordinary references, without such consent." Id.

Wharton-Thomas v. U.S., 721 F.2d 922 (3rd Cir. 1983) (emphasis supplied).

••■I

;

The case of Banks v. United States, 614 F.2d 95, 97 (6th Cir.1980) found that

"absent consent, the magistrate cannot conduct the trial itself. ... Except for

prisoner's cases, the Federal Magistrate Act does not permit the magistrate to

perform fact-finding on the merits of a case. That is the exclusive function of a

district judge." Id. The cases of Mathews v. Weber, 423 U.S. 261 (1976), United

States v. Raddatz, 447 U.S. 667 (1980), and Northern Pipeline Const. Co. v.

Marathon Pipeline Co., 458 U.S. 50 (1982), can be read as establishing that the

decision making power must remain in the Article III district court when the

parties have not consented to a determination by a non-Article III officer. WhartonThomas v. U.S., 721 F.2d 922 (3rd Cir. 1983).

The Federal Magistrate Act caused concern among some members of

Congress:

Congress manifested concern as well as enthusiasm, however, in

considering the Act. Several witnesses, including the Director of the

Administrative Office and representatives of the Justice Department, expressed

some fear that Congress might improperly delegate to magistrates duties

reserved by the Constitution to Article III judges. Senate Hearings 107-128, 241n;

House Hearings 123-128. [Fn. 5 - Some courts have manifested a like concern.

See TPO, Inc. v. McMillen, 460 F.2d 348 (CA7 1972); Reed v. Board of Election

Comm'rs, 459 F.2d 121 (CA1 1972). But cf. Palmore v. United States, 411 U.S. 389

93 S.Ct. 1670, 36 L.Ed.2d 342 (1973).]

The hearings and committee reports indicate that in § 636(b) Congress met

this problem in two ways. First, Congress restricted the range of matters that may

be referred to a magistrate to those where referral is "not inconsistent with the

Constitution and laws of the United States. . . Second, Congress limited the

magistrate's role in cases referred to him under § 636(b). The Act's sponsors made

it quite clear that the magistrate acts "under the supervision of the district

judges" when he accepts a referral, and that authority for making final decisions

remains at all times with the district judge. Senate Report 12. "(A) district judge

would retain ultimate responsibility for decision making in every instance in which

a magistrate might exercise additional duties jurisdiction." House Hearings 73

(testimony of Sen. Tydings). See also id., at 127 (testimony of the Asst. Deputy

Atty. Gen. Finley).

Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976) (emphasis

supplied).

Notably in Weber, supra, the Supreme Court suggested that even certain social

security appeals should be sent directly to the district judge due to issues of

statutory interpretation that require separate treatment. Id. at fn. 6. Additionally,

the Weber case states, "We express no opinion with respect to either the wisdom

or the validity of automatic referral in other types of cases." Id. At 274. Under the

facts, the Local Civil Rule 73.02 for automatic assignment/referral and the lack of

order of reference is challenged. Specifically, under the facts, the lack of order of

reference in essence denied the litigant the right to object at a meaningful time

and denied the opportunity to appeal an order of reference. See attached

correspondence denying petitioner's timely appeal which confirms issues that are

capable of repetition, capable of evading judicial review, and incapable of

vindication on appeal.

From the Seventh Circuit, the Flowers case provides, "We start with the

undoubted proposition that there is no constitutional provision, no specific statute,

and no rule approved by the Supreme Court of the United States, or indeed by this

court, which authorizes the assignment of cases by clerks of court to

magistrates." Flowers v. Crouch-Walker Corp., 507 F.2d 1378 (7th Cir. 1975). To

the extent a Local Civil Rule (LCR) for automatic assignment of cases by clerks of

court to magistrates is used herein and the record reflects that it is, petitioner

challenges it. Under these facts, the record reflects there is no order of reference

which is hereby challenged. To the extent there is no determination after

unambiguous non-consent by the district court of appropriateness for the

magistrate and the record reflects there is none, that practice is challenged under

the facts and does not comply with statutory and/or constitutional provisions. The

First Circuit raised Article III considerations in the Reedcase stating, "To the extent

that the court's blanket approval of the magistrate's order purported to be a

decision on the merits, particularly a final decision involving findings of fact

without even notice and opportunity to be heard by a judge, it was what we have

previously described as "a laying on of hands," Rainha v. Cassidy, 454 F.2d 207

(1st Cir., 1972), and an abnegation of judicial authority by the court entirely

contrary to the provisions of Article III. Reed v. Board of Election Comm'rs of City

of Cambridge, 459 F.2d 121 (1st Cir. 1972) (emphasis supplied). Further, in

affirming reference to a special master "in accordance with the provisions of

Fed.R.Civ.P. 53," the Second Circuit opined:

Questions have been raised, to be sure, about the use of magistrates in ultimate

decision making such as ruling on a motion to dismiss or a motion for summary

judgment. The Seventh Circuit, for example, has held that district courts have no

power to delegate such duties to magistrates. TPO, Inc. v. McMil/en, 460 F.2d 348

(1972). In addition, with specific reference to the provision of § 636(b) permitting

a magistrate to be assigned to serve as a special master in an appropriate civil

action under the Federal Rules of Civil Procedure, the Report of the Senate

Committee on the Judiciary on S. 945, S.Rep.No.371, 25-27 (June 28, 1967),

U.S.Code Cong. & Admin.News, p. 4252 points out that the "exception and not the

rule" and the "exceptional circumstances" language of Rule 53(b) was very

carefully incorporated by reference into the Federal Magistrates Act. The Senate

Committee said that "These conditions which in essence reflect the rule laid down

by the Supreme Court in LaBuy v. Howes Leather Company. . . protect against

any abdication of the decisionmaking responsibility that is properly that of the

district courts." Finally, we recently have had the guidance of Wingo v. Wedding

418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974), where the Court,

incorporating the holding in Holiday v. Johnston, 313 U.S. 342, 352-54, 61 S.Ct.

1015, 85 L.Ed. 1392 (1941), held that the Act did not change the requirements of

28 U.S.C. § 2243 that federal judges personally conduct habeas corpus evidentiary

hearings. The Court there once again emphasized that in the Federal Magistrates

Act "Congress carefully circumscribed the permissible scope of assignment to only

'such additional duties as are not inconsistent with the Constitution and laws of

the United States.1 28 U.S.C. § 636(b) (emphasis added)." 418 U.S. at 470, 94 S.Ct.

at 2848.

CAB v. Carefree Travel, Inc., 513 F.2d 375, 381 (CA2 1975).

Accordingly, the Federal Magistrates Act incorporates the mandates of the

"Constitution and laws of the United States." 28 U.S.C. § 636(b).

In the Ingram case, from the Sixth Circuit, Footnote 1 states: No order of

reference appears in the appendix; it must have been made verbally. A formal

order of reference should have been made to authorize the Magistrate to act, and

so as to afford the litigants an opportunity to object to the reference. A Magistrate

is not an Article III court. Ingram v. Richardson, 471 F.2d 1268, fn. 1 (6th Cir.

1972). There is no order of reference in the instant case and petitioner is

prejudiced thereby. But for wrongful referral, the outcome should and likely would

be in petitioner's favor. The propriety of referral to a magistrate under the facts is

challenged and purported statutory authority for the magistrate under the facts is

challenged.

In Raddatz, the Supreme Court raised another concern which supports

petitioner's position: Neither the statute nor its legislative history reveals any

specific consideration of the situation where a district judge after reviewing the

record in the process of making a de novo "determination" has doubts concerning

the credibility findings of the magistrate. The issue is not before us, but we

assume it is unlikely that a district judge would reject a magistrate's proposed

findings on credibility when those findings are dispositive and substitute the

judge's own appraisal; to do so without seeing and hearing the witness or

witnesses whose credibility is in question could well give rise to serious questions

which we do not reach. United States i/. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65

L.Ed.2d 424 (1980). In this case, the petitioner's timely request for hearing was

ignored or rebuffed.

Other concerns include the following:

We do not deny that there may be basis for concern about the wisdom of

large scale delegation of adjudication to magistrates. Wholesale reference of

cases even by consent does pose dangers to the district courts as now organized.

As the practice continues and becomes more wide spread, it will tend to become

routine. Pressure will naturally follow to increase the number of magistrates rather

than encounter the slow and often frustrating process of securing congressional

action to add the needed numbers of district judgeships, as well as the more

probing inquiries by the attorney general and in the Senate confirmation and

approval of nominees for federal district judgeships.

Overworked district judges are unlikely to oppose the addition of more

magistrates and may in fact initiate such requests. The possibility of large scale

dilutions of district courts to the point where magistrates would outnumber district

judges is not inconceivable. Whether such a rearrangement of the federal system

is desirable is, to say the least, highly debatable.

Wharton-Thomas v. U.S., 721 F.2d 922 (3rd Cir. 1983)

Moreover, this Honorable Court noted, "On these facts (in Hill v. Jenkins) the

Seventh Circuit held that the district court erred in referring the case to a

magistrate without the consent of the parties because the hearing before the

magistrate was, for all intents and purposes, a civil trial." Orpiano v. Johnson, 687

F.2d 44 (4th Cir. 1982) (citing Hill v .Jenkins, 603 F.2d 1256 (7th Cir. 1979)).

Further, a ruling on petitioner's specific objections to the magistrate's proposed

factual findings in that case required a de novo determination by the district

court. "The fact that Orpiano was acting pro se should have encouraged the

district court to read his objections broadly rather than in the narrow manner in

which it did. Failure to review the evidence presented to the magistrate and failure

even to have a transcript filed with the district court in that case was reversible

error." Orpiano v. Johnson, 687 F.2d 44 (4th Cir. 1982).

Importantly, the following observation from the Wimmer case is noted:

Between 1976 and 1979, a number of courts, however, had begun to delegate to

magistrates but always with the consent of the parties the authority to

conduct hearings, to hold trials with or without juries, and to make final

determinations. Marvel v. United States, 719 F.2d 1507, 1511-12 (10th Cir.1983)

(decided under the 1976 amendments); Coolidge v. Schooner California, 637 F.2d

1321, 1325 (9th Cir.) (1976 amendments), cert, denied, 451 U.S. 1020, 101 S.Ct.

3011, 69 L.Ed.2d 392 (1981); Calderon v. Waco Lighthouse for the Blind, 630 F.2d

352, 355 n. 3 (5th Cir.1980); Muhich v. Allen, 603 F.2d 1247, 1251 (7th Cir.1979);

DeCosta v. Columbia Broadcasting System, Inc., 520 F.2d 499, 507-08

(1st Cir.1975), cert, denied, 423 U.S. 1073, 96 S.Ct. 856, 47 L.Ed.2d 83 (1976).

Wimmer v. Cook, 774 F.2d 68, 72 (4th Cir. 1985) (emphasis supplied).

Also, the Wimmer, supra, case noted the following:

The circuit court held that under its construction of this language of the

subsection, the power to conduct an evidentiary hearing in a habeas proceeding

was not conferred on a magistrate. That decision of the circuit court was affirmed

by the Supreme Court in Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41

L.Ed.2d 879 (1974). In its decision, however, the Supreme Court added this

footnote: "We indicate no views as to the validity of investing such authority in a

magistrate or other officer 'outside the pale of Article III of the Constitution.' " 418

U.S. at 467 n. 4, 94 S.Ct. at 2847 n. 4 (quoting Wedding v. Wingo, 413 F.2d at

1133 n. 1). Wimmer v. Cook, 11A F.2d 68, 71 (4th Cir. 1985).

Wimmer held when the reference to the magistrate is under § 636(b) there

can be no jury trial and no final disposition either as a result of a jury verdict in a

trial before the magistrate or by the magistrate himself; the constitutional

provisions of Article III of the Constitution foreclose such power as well as the

terms of the statute itself. See Ford v. Estelle, 740 F.2d 374, 379-80 (5th Cir.1984).

Wimmer v. Cook, 11A F.2d 68, 74 (4th Cir. 1985).

Under the facts herein, petitioner objects including there is no referral by

the district court despite timely unambiguous non-consent to a magistrate and a

clerk's assignment/referral despite timely unambiguous non-consent to a

magistrate is untenable, unsupportable, and unauthorized. To the extent a Local

Civil Rule (LCR) provides for automatic assignment to a magistrate by clerks of

court, to the extent a LCR for automatic assignment by clerks of court is being

used for automatic referral, to the extent a LCR is ambiguous regarding referral to

a magistrate, or to the extent the LCR is adversely impacting substantive

consequences when consent is withheld including but not limited to, unreasonable

delay herein, petitioner is prejudiced thereby and takes exception. Under the

facts, the constitutional provisions of Article III of the Constitution foreclose such

automatic assignment and/or automatic referral as well as the terms of the

statute, § 636(b), itself which anticipate a specific order of reference in a case of

timely unambiguous non-consent to a magistrate and a determination by the

district court judge whether such a delegation is appropriate in that case. Under

the facts, there is no compliance with the statutory requirements including no

such determination of appropriateness, no order of reference, no authorization for

automatic assignments to a magistrate by clerks of court given timely

unambiguous non-consent to a magistrate, and no authorization for automatic

referrals. Accordingly, under these facts, without statutory compliance, there is

no statutory authorization and there is no lawful designation or jurisdiction for a

magistrate.

Moreover, pursuant to the applicable legal standard, petitioner satisfies the

following four factors for administrative and lower court stay: (1) petitioner is

likely to succeed on the merits, (2) petitioner is likely to suffer irreparable harm in

the absence of relief, (3) the harm will outweigh any harm opposing parties will

suffer if the stay is granted, and (4) the stay is in the public interest. See Hilton v.

Braunskill, 481 U.S. 770 (1987) (The four-part test for a stay: (1) whether the stay

applicant has made a strong showing of success on the merits; (2) whether the

applicant will be irreparably injured absent a stay; (3) whether issuance of the

stay will substantially injure other parties; and (4) where the public interest lies.);

League of Women Voters ofN. Carolina v. N. Carolina, 769 F.3d 224, 236 (4th Cir.

2014) (citing Winter, 555 U.S. 7, 20 (2008)). For the reasons stated herein and for

good cause, petitioner has met the burden of proof on likelihood of success.

Petitioner makes a clear showing of irreparable harm. "When the failure to grant

preliminary relief creates the possibility of permanent loss of customers to a

competitor or the loss of goodwill, the irreparable injury prong is satisfied. Merrill

Lynch, Pierce, Fenner and Smith v. Bradley, 756 F.2d 1048, 1055 (4th Cir.1985)."

Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d

546 (4th Cir. 1994). The balance of equities also tips in the petitioner's favor. Rea!

Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346-47 (4th Cir.

2009), vacated on other grounds, 559 U.S. 1089 (2010), reissued in part, 607 F.3d

355 (4th Cir. 2010), overruling Blackwelder Furniture Co. of Statesville v. Seilig

Mfg. Co., 550 F.2d 189 (4th Cir. 1977). Moreover, the balance of equities favors

petitioner because of, including but not limited to, ongoing constitutional

violations: "Precedent counsels that ‘defendants in no way harmed by issuance

of a stay which prevents /tfrom enforcing restrictions likely to be found

unconstitutional.

Centro Tepeyac v. Montgomery County, 722 F.3d 184, 191

(4th Cir. 2013) (emphasis supplied) (quoting Giovani Carandola Ltd. v. Bason , 303

F.3d 507, 521 (4th Cir. 2002)). "If anything, the system is improved by such an

injunction which is in the public interestLeaders of A Beautiful Struggle v. Balt.

Police Dep't, 979 F.3d 219 (4th Cir. 2020) (emphasis supplied) (quoting Giovani

Carandola Ltd. i/. Bason , 303 F.3d 507, 521 (4th Cir. 2002)). In addition, relief

herein is in the public interest to preserve the status quo and to remedy

defendant's wrongdoing which arbitrarily and capriciously diminishes "access to

high-quality health care" and interferes with established and prospective doctorpatient relationships unrelated to professional competency and without just

cause. Planned Parenthood S. At! v. Baker, 941 F.3d 687 (4th Cir. 2019).

Accordingly, petitioner has met the burden of proof on all four factors for

administrative and lower court stay.

Moreover, petitioner respectfully appeals the lower court's failure to provide

adequate explanation for meaningful review. See, e.g., Fidrych v. Marriott Int'l,

Inc., 952 F.3d 124, 146 (4th Cir. 2020) (remanded for lack of adequate explanation

for meaningful review: "As indicated above, the district court's analysis ... was

quite abbreviated, and the court disposed of the substance of the issue in a single

sentence. See J.A. 252. We need more explanation to conduct meaningful

appellate review of the court's disposition of the motion."). Coerced Report and

Recommendation (R&R) despite timely unambiguous non-consent to a magistrate,

denial of substantial rights including but not limited to, de novo determination by

Article III Judicial Officer without consent to magistrate R&R on

substantive/dispositive matters, and/or retaliation such as unreasonable delay for

asserting substantial rights akin to mode of trial must be raised or waived. Timely

non-consent to a magistrate on substantive/dispositive matters was submitted

with the complaint. As a practical matter, under the facts, the overworked and

underpaid district court judge may not be a neutral decision-maker in the decision

to deny the substantial right of de novo determination by Article III Judicial Officer

without R&R on substantive/dispositive matters, thereby, signaling code for

dispensing a separate second class system of so-called justice without consent.

An abundant body of law has decisively determined separate is never equal.

Moreover, R&R coerced by the referring district court judge may bias or

predetermine the outcome by the magistrate with R&R then appealed to the

conflicted district court judge thereby denying meaningful judicial review.

Petitioner asserts lack of authorization/jurisdiction for, including but not limited to,

automatic assignment/referral to a magistrate and/or R&R without consent on

dispositive/substantive matters such as in this case. See 28 USC § 636 generally

and 28 USC § 636(b). Specifically, petitioner asserts violations of 28 USC § 636

including 636(b) which provides the following protections for litigants who are the

intended beneficiaries:

A [magistrate judge] may be assigned such additional duties as are not

inconsistent with the Constitution and laws of the United States." 28 USC § 636(b)

(3).

Also:

"If a [magistrate judge] is designated to exercise civil jurisdiction under paragraph

(1) of this subsection, the clerk of court shall, at the time the action is filed, notify

the parties of the availability of a [magistrate judge) to exercise such jurisdiction.

The decision of the parties shall be communicated to the clerk of court.

Thereafter, either the district court judge or the magistrate judge) may again

advise the parties of the availability of the [magistrate judge), but in so doing, shall

also advise the parties that they are free to withhold consent without adverse

substantive consequences. Rules of court for the reference of civil matters

to magistrate judges shall include procedures to protect the

voluntariness of the parties' consent. 28 USC § 636(c)(2)(emphasis supplied).

The record establishes the reference herein is without consent, it is coerced, and it

lacks statutory authorization. Reliance on the local rule cited and on 28 USC §

636(b)(1)(B) is misplaced. The local civil rule cited applies to assignment, not

referrals for disposition on substantive/dispositive matters without consent which

diminishes/denies constitutional and statutory mandates and protections of

substantial rights including but not limited to, diminished time to object to R&R

with loss of appeal rights if untimely and/or less burdensome standard of review.

To the extent there is ambiguity, the rule of lenity supports petitioner's position.

Further, it is respectfully submitted under these facts, coerced R&R without

consent on substantive/dispositive matters cannot pass constitutional muster.

See Coleman v. Labor & Indus. Review Comm'n, 860 F.3d 461, 475 (7th Cir. 2017)

(holding that a magistrate judge cannot "resolve the case finally" "unless all

parties to the action have consented to the magistrate judge's authority." The

Seventh Circuit remanded: A petitioner's consent alone cannot give a magistrate

the necessary authority to resolve a case on the basis that the complaint fails to

state a claim upon which relief can be granted, in a case that otherwise requires

RECEIVED

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an Article III judge. The lesson we draw is that something as important as

the choice between a state court and a federal court, or between an

Article I and an Article III judge, cannot be resolved against a party

without bringing the party into the case through formal service of

process (emphasis supplied)). In the instant action, neither party consented.

Even assuming, though denying, authorization/jurisdiction for R&R, there is clear

error of material fact and law. Brown v. Felsen, 442 U.S. 127,131 (1979).

Further, there is conflict with decisions of other courts and the U.S. Supreme

Court which calls for review herein. Specifically, petitioner respectfully appeals

unauthorized, non-responsive, arbitrary, and/or capricious denial of substantial

rights. Wimmer v. Cook, 774 F.2d 68 (4th Cir., 1985); Roell v. Withrow, 538 U.S.

580 (2003). There is no consent, much less express, voluntary consent to coerced

R&R on dispositive/substantive matters. Jurisdiction cannot be waived. 28 U.S.C. §

636(b)(3). Further, without consent, there is no jurisdiction for magistrate R&R on

dispositive/substantive matters herein. To the extent a litigant's right to an Article

III Judicial Officer is thwarted/denied by impermissible delegation and/or wrongful

R&R without consent, the interpretation and/or application of the statute and/or

the Local Rule 73.02 (B)(2)(d), D.S.C. cited, cannot pass constitutional muster.

The framers of the constitution intended litigants to be the beneficiaries of

the substantial right to an Article III Judicial Officer. Conflict is resolved in favor of

the intended beneficiaries of that constitutionally protected substantial right. The

substantial right of de novo determination by an Article III Judicial Officer without

R&R on dispositive/substantive matters is not forfeited nor voluntarily and

expressly waived but is timely reserved and not waived. Wimmer v. Cook, 774

F.2d 68 (4th Cir., 1985); Roell v. Withrow, 538 U.S. 580 (2003). It is respectfully

submitted that overworked and underpaid district court judges may not be neutral

decision-makers in the request for de novo determination by an Article III Judicial

Officer without R&R on substantive/dispositive matters.

Pursuant to 28 U.S.C. § 636(b)(3), a magistrate may be assigned such

additional duties as are not inconsistent with the Constitution and laws of the

United States. The denial of a litigant's timely express request for de novo

determination by an Article III Judicial Officer without R&R on

dispositive/substantive matters is inconsistent with the Constitution and laws of

the United States. "The Supreme Court has stated that the Constitution requires

that the judicial power of the United States be vested in courts having judges with

life tenure and undiminishable compensation in order to protect judicial acts from

executive or legislative coercion. O' Donoghue i/. United States, 289 U.S. 516, 531

53 S.Ct. 740, 743, 77 L.Ed. 1356 (1933). A decision without consent by a

magistrate, a non-Article III judge, would undermine this objective of the

Constitution and might violate the rights of the parties. Willie James Glover,

Plaintiff-Appellee Cross-Appellant, v. Alabama Board of Corrections, EtAI.,

Defendants, James Towns, Defendant-Appellant Cross-Appellee., 660 F.2d 120 (5th

Cir. 1981). See Wimmer v. Cook, 774 F.2d 68 (4th Cir., 1985); Roell v. Withrow,

538 U.S. 580 (2003); United States v. Johnson, 48 F.3d 806, 808-09 (4th Cir. 1995)

(citing Ex Parte United States, 242 U.S. 27, 41, 37 S.Ct. 72, 61 L.Ed. 129 (1916)).

"De novo review of a magistrate judge's determinations by an Article III judge is

not only required by statute, see Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir.

1982), but is indispensable to the constitutionality of the Magistrate Judge's Act.

See United States v. Raddatz, 447 U.S. 667, 681-82 (1980)." Walton i/. Lindler, 972

F.2d 344 (4th Cir., 1992) (unpublished). The record suggests predetermined

outcome, impermissible delegation, undue influence, favoritism/bias, and/or other

unconstitutional factor. Ambiguity regarding impermissible delegation without

consent is reversible error. Similarly, lack of neutral decision-maker, application of

the improper/diminished legal standard of review with coerced R&R, and/or

ambiguity regarding the proper legal standard is reversible error. To the extent

there is ambiguity, the rule of lenity supports petitioner's position.

The propriety of referring dispositive/substantive matters to a magistrate

under the facts is challenged. As a threshold matter, the magistrate would have

no authority over the district court judge to enforce non-consent to a magistrate

and the Local Rule cited and relied upon does not authorize such referral for

disposition without consent. Further, by wrongful referral to a magistrate, the

district court judge thereby signals, biases, or predetermines adverse substantive

consequences including unreasonable delay herein, by refusal to grant the

meritorious and protected substantial right of de novo determination by an Article

III Judicial Officer without R&R on dispositive/substantive matters. Coerced R&R on

substantive/dispositive matters prejudices the case for a second class system of

so-called justice dispensed by a non-Article III Judge with diminished standard of

review on appeal, diminished appeal rights, and/or diminished time to

appeal/object to the R&R without consent with loss of appeal rights if untimely.

The wrongful referral to a magistrate smacks of retaliation for requesting a

substantial right akin to the right to a particular mode of trial. The record reflects

no party has given consent. The magistrate has no authority and no jurisdiction

without consent on dispositive/substantive matters. But for coerced R&R herein,

the outcome should and would be different in the petitioner's favor. The

petitioner asserts prejudicial error and requests administrative stay pending a

determination on the merits.

In addition, the unpublished case of Shiraz addresses impermissible

delegation. United States v. Shiraz, (4th Cir., filed August 13, 2019). From that

case, "core judicial functions cannot be delegated....Such delegation violates

Article III of the Constitution. United States v. Johnson, 48 F.3d 806, 808-09 (4th

Cir. 1995)." id., p.4. Similarly, ambiguity as to whether the district court

impermissibly delegated authority is reversible error. Id., p.5 (citing United States

v. Barber, 865 F.3d 837, 840 (5th Cir. 2017). Moreover, the 9th Circuit has ruled

that without the party's consent, the magistrate lacked jurisdiction. Branch v.

Umphenour, 936 F.3d 994 (9th Cir. 2019). See Coleman v. Labor & Indus. Review

Comm'n, 860 F.3d 461, 475 (7th Cir. 2017) (holding that a magistrate judge

cannot "resolve the case finally" "unless all parties to the action have consented

to the magistrate judge's authority."). To the extent a litigant's right to an Article

III Judicial Officer is thwarted/denied by impermissible delegation and/or coerced

R&R on dispositive/substantive matters, the interpretation and/or application of

the statute and/or local rule cannot pass constitutional muster. Coerced R&R

jeopardizes/impairs litigants' substantial rights. To the extent a substantial right,

including full and fair, meaningful review, is diminished for pro se litigants by

coerced R&R, magistrate R&R on dispositive/substantive matters without consent

cannot pass constitutional muster. Without Constitutional and statutory authority,

the magistrate order is a nullity lacking jurisdiction. Jurisdiction can be raised at

any time and jurisdiction cannot be waived. The substantial right of de novo

determination without R&R under these facts by an Article III Judicial Officer on

dispositive/substantive matters is respectfully requested. Accordingly, there is

conflict with decisions of other courts and the U. S. Supreme Court which supports

petitioner's position. This issue is of exceptional importance, it is capable of being

and has been repeated, it is capable of evading and has evaded judicial review,

and it is incapable of vindication on appeal.

An expedited administrative stay pending appeal should and would

materially advance the ultimate termination of the litigation. Under these facts,

the issue involves "coerced R&R on dispositive/substantive matters" and/or denial

of substantial rights which are closely related to the right to a particular mode of

trial, a well-established substantial right. To the extent substantial rights could be

waived and/or vindication on appeal is insufficient, the order must be immediately

appealed with stay which is hereby requested. Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541, 546-47 (1949); Hagood v. Sommerville, 362 S.C. 191, 607

S.E.2d 707 (2005). In sum, petitioner respectfully submits the burden of proof

(BOP) has been met on all four requirements for granting administrative stay

pending appeal, including wrongful referral without consent for coerced R&R on

dispositive/substantive matters to the same magistrate who recommended

summary dismissal before service Report & Recommendation (R&R) based on

affirmative defense, if any, required to be raised or waived by defendant. See

USDC-SC 2:20-cv-01748.

Significantly and materially, the amended complaint makes a clear showing

of irreparable harm to the practicing physician petitioner. The plain language of

the complaint establishes that the physician in this case requires preservation of

the status quo regarding ability to practice one's profession without unreasonable

interference, to maintain established physician-patient relationships, to meet on

going operating expenses, and/or to earn support for one's family. Defendant

violates Constitutional and statutory law including but not limited to, 21 C.F.R.

1301.13(e) and/or 31 U.S.C. § 5103, by arbitrarily and capriciously failing and

refusing to accept the usual and customary 21 C.F.R. 1301.13(e) payment or legal

tender for renewal of license fees. The request for escrow establishes timely

proffer of payment for the renewal fee. Petitioner respectfully requested order for

escrow of $888.00 for the renewal fee pending resolution. See Pashby v. Delia ,

709 F.3d 307, 332 (4th Cir. 2013) (The district court retains the discretion to set

the bond amount as it sees fit or waive the security requirement.); Accident,

injury & Rehab., PC v. Azar, 336 F.Supp.3d 599 (D. S.C. 2018). Failure to exercise

that discretion herein is an abuse of discretion. Petitioner's complaint establishes

defendant's unreasonable interference with the physician's ability to practice

medicine including but not limited to, continuity of care for established and

prospective patients. After diligently completing four years of college, four years

of demanding medical school, one year of intensive internship, three years of

rigorous residency training, and multiple routine renewals without change in the

interim, defendant's refusal, without just cause, to accept the usual and

customary statutory payment/legal tender for renewal fees is unreasonable and

disproportionately adversely impacts the physician's patients, the physician's

practice, and the physician petitioner. Defendant's wrongdoing is in direct conflict

with and violates rules and regulations by and between other healthcare

agencies/departments which unreasonably interferes with the physician's ability

to practice medicine and disproportionately adversely impacts the petitioner and

small provider herein and the M.D.'s patients. Moreover, addressing defendant's

violations of Constitutional and statutory law is in the public interest regarding

patients' access to their established physicians, including the petitioner, and

patients' access to their physicians of choice. Pursuant to 21 C.F.R. 1301.13(e)

defendant has accepted the same timely payment of fees for multiple routine

renewals in the past. Further, the record reflects evidence, including timely Return

Receipt, of abundant efforts which were made to address this matter with

defendant in the greater Washington, DC, area office, the regional office in Atlanta

as well as the Columbia, SC, office to no avail. Petitioner's reasonable efforts to

reach out to defendant were rebuffed or ignored, leaving no other alternative.

Defendant cannot in good faith deny receiving timely payment and renewal

application as documented in the Return Receipt. Defendant has unclean hands.

"The motion for a preliminary injunction shall be set for hearing at the earliest

possible time." Granny Goose Foods, Inc v. Brotherhood of Teamsters Auto Truck

Drivers Local No 70 of Alameda County 8212 1566, 415 U.S. 423, 443, 94 S.Ct.

1113, 39 L.Ed.2d 435 (1974) (emphasis Supplied). "The touchstone of due process

is protection of the individual against arbitrary action of government," Wolff v.

McDonnell, 418 U.S. 539, 558 (1974), or denial of fundamental procedural

fairness, see, e.g., Fuentes i/. Shevin, 407 U.S. 67, 82 (1972) (the procedural due

process guarantee protects against "arbitrary takings"). County of Sacramento v.

Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). See Moore v.

Moore, 376 S.C. 467, 657 S.E.2d 743 (2008) (procedural due process requires (1)

adequate notice; (2) adequate opportunity for a hearing; (3) the right to introduce

evidence; and (4) the right to confront and cross-examine witnesses). U.S. Const.,

generally and Article III; U.S. Const, amend. I, V, VI, VIII.

The lower court errs and elevates form over substance. The complaint

provides written certification of notice to defendant timely submitted including

copy of RRR. The undersigned asserts the timely amended verified complaint

makes a clear showing of irreparable harm, however, the distirct court failed and

refused to consider the timely amended verified complaint: Because the district

court's order is based on the original complaint which is superseded by the timely

amended verified complaint, the district court order is reversible as a matter of

law due to lack of support in the record. As such, the district court order is

unsupported and unsustainable and should be vacated which is respectfully

requested. The plain language of the complaint establishes that the practicing

physician herein requests preservation of the status quo including ability to

practice one's profession without unreasonable interference in order to meet

ongoing operating expenses and to earn support for one's family. The copy of the

Return Receipt is attached. Defendant cannot in good faith deny receiving timely

application with the usual and customary statutory payment. But for failure to

timely grant the meritorious 14-day TRO, the matter should and likely would be

resolved. By analogy, the forum state limits ex parte TROs to those "rare

occasions when no adverse interest exists or when exigent circumstances dictate

that action be taken prematurely." See Thornton v. Alford, 71A S.C. 1, 3, 260

S.E.2d 179, 180 (1979). In the instant case, the defendant has minimal or no

adverse interest, is protected by proffer of escrow, and the disproportionately

adverse impact on a small practitioner constitutes exigent circumstances.

Notably, "precedent counsels that ‘defendantis in no way harmed by issuance of

a preliminary injunction which prevents the defendant from enforcing restrictions

likely to be found in violation of constitutional and/or statutory law.' " See Centro

Tepeyac v. Montgomery County, 722 F.3d 184, 191 (4th Cir. 2013) (emphasis

supplied) (quoting Giovani Carandola Ltd. v. Bason , 303 F.3d 507, 521 (4th Cir.

2002) ) ("If anything, the system is improved by such an injunction."); Leaders of

A Beautiful Struggle v. Bait. Police Dep't, 979 F.3d 219 (4th Cir. 2020). The

petitioner's proffer of escrow in the amount of the renewal fee is one of several

reasons why notice is not required wherein defendant's interest is protected and

there is minimal, if any, adverse impact on defendant. Moreover, analogous to

the district court's discretion to waive security or bond, there is good cause for

waiver herein under the facts. "See Pashby v. Delia , 709 F.3d 307, 332 (4th Cir.

2013) C[T]he district court retains the discretion to set the bond amount as it sees

fit or waive the security requirement.’..." Accident, Injury & Rehab., PC v. Azar, 336

F.Supp.3d 599 (D. S.C. 2018). To the extent there is ambiguity, the rule of lenity

supports the petitioner's position. Importantly, a recent case provides: The law is

well-settled that when making a determination based on the pleadings, a court is

bound "to accept without question the truth of the petitioner's allegations.

Denton, 504 U.S. 25, 32." Thomas v. United States, 4:22-2638-JD-TER, 3 (D.S.C.

Aug. 17, 2022). In addition, the Denton case provides further support stating, "(A)

complaint may not be dismissed....simply because the court finds the petitioner’s

allegations unlikely." Denton v. Hernandez, 504 U.S. 25,32 (1992). It is respectfully

submitted there is precedent wherein the district court overruled the same

magistrate's overreaching attempts at a finding of frivolity in the prior case of

USDC-SC 2:20-cv-01748. In that case, the same magistrate made a frivolous

finding of frivolity while recommending summary dismissal before service based

on affirmative defense, if any, required to be raised or waived by defendant which

is material to review herein. To the extent there is a pattern and now practice of

this magistrate's overreaching attempts to delay/dismiss nonfrivolous claims and

to deny full and fair consideration on the merits, the case of Cooter & Gell is

pertinent and provides further support for petitioner's timely Notice of NonConsent to the Magistrate. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402

110 S.Ct. 2447, 110 L.Ed.2d 359, 58 USLW 4763 (1990)(the lack of any legal

requirement other than the talismanic recitation of ‘“frivolous' will foreclose

meaningful review (emphasis supplied)).

The purpose of an administrative stay pending appeal is to preserve the

relative positions of the parties until a trial on the merits can be held. As such, it is

customarily granted on the basis of procedures that are less formal and evidence

that is less complete than in a trial on the merits. A party is not required to prove

his case in full. The element of "balancing the harm" is an important if not

dispositive factor. See Hughes Network Sys. v. Interdigital Commc'ns Corp., 17

F.3d 691, 693 (4th Cir. 1994).

Defendant is in no way harmed by issuance of a

preliminary injunction which prevents it from enforcing restrictions likely to be

found in violation of Constitutional and/or statutory law. If anything, the system is

improved by such an injunction.' Carandola, 147 F.Supp.2d at 395." Giovani

Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002) (emphasis supplied). See

Planned Parenthood South Atlantic v. Kerr, 27 F.4th 945 (4th Cir. 2022) ("The

individual petitioner had demonstrated that she was likely to succeed on her

Medicaid Act claim since the free-choice-of-provider provision conferred a private

right enforceable under 42 U.S.C. 1983 and South Carolina had violated that

provision by terminating Planned Parenthood's Medicaid provider agreement.").

The individual petitioner herein has demonstrated a likelihood of success on the

merits including but not limited to, the claim of unfair discrimination provided

under the ACA to the petitioner as a member of a protected class for intentional

and/or disparate impact discrimination based on 42 U.S.C. 6101, etseq., in

violation of Section 1557 of the Patient Protection and Affordable Care Act, 42

U.S.C. § 18001, etseq., and defendant has violated that provision by arbitrary and

capricious failure and refusal despite notice to comply with 21 C.F.R. 1301.13(e),

31 U.S.C. § 5103, and/or other constitutional and statutory laws. See Callum v.

CVS Health Corp., 137 F.Supp.3d 817, 848 (D.S.C. 2015). The Direx case supports

petitioner's position herein and provides "(t)he basis of injunctive relief in the

federal courts has always been irreparable harm and inadequacy of legal

remedies.1 Samson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 951-52, 39 L.Ed.2d

166 (1974) (citing Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07, 79

S.Ct. 948, 954-55, 3 L.Ed.2d 988 (1959))." Direx Israel, Ltd. v. Breakthrough

Medical Corp., 952 F.2d 802 (4th Cir. 1992). By analogy, the Phelps case is a

"Phelps and Asso., LLC, v. Galloway, 492 F.3d 532 (4th Cir. 2007)." That case

provides support for petitioner's position by supporting a presumption of

irreparable harm after diligently completing four years of college, four years of

demanding medical school, one year of intensive internship, three years of

rigorous residency training in order to obtain the license and after multiple

essentially routine renewals with no changes in the interim. In addition, that case

further supports the physician's position because the Fourth Circuit remanded for

reconsideration of equitable relief. Defendant's refusal herein, without just cause,

to comply with 21 C.F.R. 1301.13(e) and 31 U.S.C. § 5103, and/or to accept the

usual and customary 21 C.F.R. 1301.13(e) payment for renewal fees without

interim change is unreasonable and disproportionately adversely impacts the

plaintiff, a practicing small provider, at a time when physician shortages abound

with predictions of increased shortages.

The record reflects petitioner has met the burden of proof on all four

requirements for equitable/injunctive relief which overlaps with requirements set

forth above. The lower court must examine the merits of the underlying case only

to the extent necessary to determine whether the petitioner has made a sufficient

prima facie showing of entitlement to relief. Synthes USA v. Davis, 2017 WL

5972705, at *3. The law is well-settled that when making a determination based

on the pleadings, as in this case, a lower court is bound "to accept without

question the truth of the petitioner's allegations. Denton, 504 U.S. 25, 32."

Thomas v. United States, 4:22-2638-JD-TER, 3 (D.S.C. Aug. 17, 2022). In the

instant matter, the petitioner has met the burden of proof on the following four

factors:

(1) petitioner is likely to succeed on the merits,

(2) petitioner is likely to suffer irreparable harm in the absence of relief,

(3) there is minimal, if any, legal prejudice or adverse impact on defendant and

the balance of equities tips in the petitioner's favor, and

(4) there is no disservice to and/or there is benefit to the public interest. League

of Women Voters of N. Carolina v. N. Carolina, 769 F.3d 224, 236 (4th Cir. 2014)

(citing Winter v. Nat Ref Def. Council, Inc., 555 U.S. 7, 20 (2008)).

Defendant's arbitrary and capricious failure to comply with 21 C.F.R. § 1301.13(e)

and 31 U.S.C. § 5103 as well as failure to accept the usual and customary 21

C.F.R. § 1301.13(e) payment for renewal fees without interim change is

unreasonable and disproportionately adversely impacts the physician's

established and prospective patients, the physician's practice, and the physician

herein. Defendant willfully neglected, without just cause, to comply with 21 C.F.R.

§ 1301.13(e) and 31 U.S.C. § 5103 and/or to accept the usual and customary

payment/legal tender for renewal fees causing irreparable harm to the petitioner

and petitioner's practice and unreasonably interfering with the petitioner's ability

to practice petitioner's profession, to meet on-going operating expenses, and to

earn support for one's family as well as unreasonable interference with

established and prospective doctor-patient relationships, with patients' access to

continuity of care, and with patients' access to their physician of choice. If

anything, it benefits the public interest because "the system is improved by such

relief." Giovani Carandola Ltd. v. Bason , 303 F.3d 507, 521 (4th Cir. 2002)

(emphasis supplied). Moreover, resolving defendant's violations of conflicting

statutes and regulations by and between differing healthcare agencies serves the

public interest and/or promotes high quality, cost-effective, individualized,

compassionate healthcare in the public interest.

The record reflects the petitioner makes a clear showing of the likelihood of

success on the merits, although certainty of success is not required. See Accident,

injury & Rehab., PC v. Azar, 336 F. Supp. 3d 599, 604-05 (D.S.C. 2018); Nutramax

Labs., Inc. v. Pure Supplements Ltd., No. 0:17-CV-01260-JMC, 2017 WL 2772485,

at *4 (D.S.C. June 27, 2017). The element of "balancing the harm" is the most

important factor. Hughes Network Sys. v. Interdigital Commc'ns Corp., 17 F.3d

691, 693 (4th Cir. 1994). In addition, the balance of the equities favors petitioner

because petitioner has established an ongoing constitutional violation. By

contrast, "precedent counsels that ‘defendants in no way harmed by issuance of

a preliminary injunction which prevents it from enforcing restrictions likely to be

found unconstitutional. /

See Centro Tepeyac v. Montgomery County, 722 F.3d

184, 191 (4th Cir. 2013) (quoting Giovani Carandola Ltd. v. Bason , 303 F.3d 507

521 (4th Cir. 2002) ) (emphasis supplied) ("If anything, the system is improved by

such an injunction."). Leaders of A Beautiful Struggle v. Balt. Police Dep't, 979

F.3d 219 (4th Cir. 2020).

Under the facts, the lower court should be reversed based on clear error of

material fact, clear misapprehension with error of law, clear error in overlooking

significant evidence, and/or clear error with overreaching attempts to

delay/dismiss nonfrivolous claims and deny full and fair consideration on the

merits. See Centro Tepeyac v. Montgomery County, 722 F.3d 184, 188 (4th Cir.

2013). In an immigration case and by analogy, Pillay articulated these caveats:

No overreaching attempts to dismiss nonfrivolous claims and deny full and fair

consideration on the merits See Neitzke v. Williams, 490 U.S. 319, 328 (1989)

('When a complaint raises an arguable question of law, which the court ultimately

finds is correctly resolved against the petitioner,' the complaint may fail to state a

claim but is not frivolous.). Because there is an arguable basis in governing law

herein, there is no frivolity. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,

402, 110 S.Ct. 2447, 110 L.Ed.2d 359, 58 USLW 4763 (1990)(the lack of any legal

requirement other than the talismanic recitation of “‘frivolous’ will foreclose

meaningful review (emphasis supplied)). Petitioner asserts ongoing constitutional

violations and violations of constitutional and statutory law because defendant,

despite timely notice and without just cause, refused timely payment in the usual

and customary form of a personal check made payable to defendant as required

by 21 C.F.R. § 1301.13(e) and defendant wrongfully refused to comply with 31

U.S.C. § 5103 as well. The petitioner's causes of action include but are not limited

to, these three:

(1) denial of procedural due process - These factors determine whether a

procedural due process violation has occurred and the undersigned'asserts that it

has: a) the private interest that will be affected by the official action. The

petitioner herein has a private interest, individual interest, and property interest

that affects the petitioner's practice, petitioner's patients, and financial stability;

b) the risk of an erroneous deprivation of such interest through the procedures

used - The risk of erroneous deprivation of the private interests is great: After

diligently completing four years of college, four years of demanding medical

school, one year of intensive internship, three years of rigorous residency training,

and multiple routine renewals, defendant's refusal, without just cause, to comply

with 21 C.F.R. § 1301.13(e) and/or 31 U.S.C. § 5103 and refusal to accept the

timely usual and customary authorized payment/legal tender for renewal fees is

unreasonable and disproportionately adversely impacts the physician herein.

Defendant's wrongdoing triggers monetary and non-monetary penalties as well as

adverse impacts including, for example, on state licensing. Defendant's

wrongdoing violates rules and regulations by and between differing healthcare

agencies/departments which unreasonably interferes with the physician's ability

to practice medicine and disproportionately adversely impacts the petitioner's

patients, the petitioner's practice, and the petitioner; and c) the probable value, if

any, of additional or substitute procedural safeguards - There is minimal, if any,

administrative or financial burden to defendant herein, the defendant is protected

by proffer of escrow, and the petitioner seeks to preserve the status quo pending

resolution. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18

(1976).

(2) ultra vires - Petitioner asserts the actions taken by defendant exceed the

scope of power given to defendant under the law including but not limited to,

violations of 21 C.F.R. § 1301.13(e) and 31 U.S.C. § 5103 as well as deprivation of,

including but not limited to, substantial rights as well as individual and property

interests. Defendant acted ultra vires in violation of including but not limited to,

21 C.F.R. § 1301.13(e) and 31 U.S.C. § 5103 by exceeding its authority including

rulemaking authority in violating 21 C.F.R. § 1301.13(e) and 31 U.S.C. § 5103

and/or promulgating without required compliance certain changes. Defendant's

wrongdoing includes imposing additional requirements without just cause, without

due process, and/or without authority. Md. Shall Issue, Inc. v. Hogan, 971 F.3d 199

(4th Cir. 2020).

(3) violation of the Administrative Procedures Act (APA) - The petitioner claims

violations of the APA and implementing rules. Petitioner has pled a colorable

claim, including but not limited to, raising a federal question based on the APA

and its application with likelihood of success on the merits though certainty of

success is not required. See Accident, Injury & Rehab., PC v. Azar, 336 F. Supp. 3d

599, 604-05 (D.S.C. 2018).

Specifically, petitioner alleges likelihood of success on one or more claims

and is irreparably harmed by defendant's wrongful refusal to comply with 21 C.F.R.

§ 1301.13(e) and 31 U.S.C. § 5103. Petitioner submitted timely payment in the

usual and customary authorized form of a personal check made payable to the

Drug Enforcement Administration for the full amount ($888.00) pursuant to 21

C.F.R. § 1301.13(e). The Return Receipt establishes the renewal application with

payment was timely received. Without just cause, defendant wrongfully refused

timely 21 C.F.R. § 1301.13(e) payment. The complaint herein is timely filed. State

license renewal may be adversely affected without just cause. Defendant's

wrongdoing threatens the petitioner's practice and adversely affects employment

opportunities. A recent case, Planned Parenthood 5. At! v. Baker, 941 F.3d 687 (4th

Cir. 2019), supports petitioner's claims and establishes irreparable harm where

failure to renew herein is not based on professional competency, where patients'

access to continuity of care is diminished or denied, and where defendant's

wrongdoing adversely affects existing and prospective doctor-patient

relationships. Planned Parenthood S. At! v. Baker, 941 F.3d 687 (4th Cir. 2019);

Planned Parenthood South Atlantic v. Kerr, 27 F.4th 945 (4th Cir. 2022). In

addition, that case supports the petitioner's private right of action granted in,

including but not limited to, the ACA to the petitioner as a member of a protected

class for intentional and/or disparate impact discrimination based on 42 U.S.C.

6101, et seq., in violation of Section 1557 of the Patient Protection and Affordable

Care Act 42 U.S.C. § 18001, et seq. and other. See Callum v. CVS Health Corp., 137

F.Supp,3d 817, 848 (D.S.C. 2015). Petitioner asserts a cause of action for

intentional and/or disparate discrimination based on 42 U.S.C. 6101, et seq., in

violation of Section 1557 of the Patient Protection and Affordable Care Act, 42

U.S.C. § 18001, etseq., toward a member of a protected class. Section 1557 of

the Patient Protection and Affordable Care Act (ACA), 42 U.S.C. § 18001, etseq.,

provides that an individual shall not be excluded from participation in, be denied

the benefits of, or be subjected to discrimination including on the grounds

prohibited toward a minority and/or age discrimination including the Age

Discrimination Act of 1975 (ADA) under any health program or activity, any part of

which is receiving federal financial assistance, or under any program or activity

that is administered by an Executive Agency or any entity established under Title I

of the Affordable Care Act or its amendments. "The court is mindful of the

procedural status of this case, and that Defendants have not yet had an

opportunity to respond to the motion forTRO. However, upon the strength of the

representations made by Allen, the court is satisfied that Allen has established

that he is likely to suffer irreparable harm as a result of the Defendants' actions."

Graham Alien Enters., LLC v. Nine Line Apparel, Inc. (D. S.C. 2017). See Direx

Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 8Q2, 811 (4th Cir. 1992).

The petitioner asserts the burden of proof on the balance of equities has

been met. Specifically, the balance of equities tips in the petitioner's favor

including the following:

i) The petitioner herein has a private interest, individual interest, and property

interest and defendant's wrongdoing adversely affects the petitioner's interests,

practice, and financial stability; ii) The risk of erroneous deprivation of this private

interest is great. After diligently completing four years of college, four years of

demanding medical school, one year of intensive internship, three years of

rigorous residency training, and multiple renewals, defendant's refusal, without

just cause, to accept the usual and customary payment/legal tender for renewal

fees in violation of 21 C.F.R. § 1301.13(e) and 31 U.S.C. § 5103 is unreasonable

and disproportionately adversely impacts the physician herein. Defendant's

wrongdoing triggers monetary and non-monetary penalties and adverse impacts.

Defendant's wrongdoing violates conflicting rules and regulations by and between

differing healthcare agencies/departments and unreasonably interferes with the

physician's ability to practice medicine and disproportionately adversely impacts

the petitioner's patients, the petitioner's practice, and the petitioner; and iii)

There is minimal, if any, administrative or financial burden to defendant herein,

petitioner's proffer of escrow for the full fee of $888.00 protects the defendant's

interest, and the petitioner seeks to preserve the status quo pending appeal.

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

Accordingly, as set forth herein, the burden of proof on all four requirements

has been met.

CONCLUSION

WHEREFORE petitioner respectfully requests this Court grant the petition for

a writ of certiorari.

Respectfully submitted,

(Q^UrllTles^-'^

POB 187

Sullivans Island,)SC 29482-0187

843.883.3010 /

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