Petition for Writ of Certiorari — C. Holmes, Petitioner v. Blue Cross Blue Shield of South Carolina, Inc., et al.

Supreme Court briefMar 18, 2024

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ORIGINAL

23-1043

(USDC-SC 2:20-cv*00004-BHH)

FILED

MAR 1 8 2024

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

C. Holmes, MD,

Petitioner,

Blue Cross Blue Shield

of South Carolina, Inc., et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A 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 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.

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 without

consent including but not limited to, appeal by and through the conflicted district

court judge, diminished standard of review with R&R, denial of full and fair judicial

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

of full, fair, and meaningful review if deemed untimely by the conflicted

overworked and underpaid district court judge.

3. Whether a reasonable person reasonably questions the neutrality of the

overworked and underpaid district court judge on appeal of coerced Report &

Recommendation (R&R) without consent after denial of a citizen's motion for the

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

on dispositive matters.

4. Whether the record reflects lack of factual support for wrongful dismissal, abuse

of discretion by the conflicted overworked and underpaid district court judge,

and/or grounds for disqualification of the conflicted district court judge.

LIST OF PARTIES

The parties in the case are Blue Cross Blue Shield of South Carolina, Inc.,

Scott McCartha, Ms. Shipman, and J. Doe #1 Through J. Doe #X.

RELATED CASES

None

TABLE OF CONTENTS

Opinions Below

Jurisdiction

Constitutional 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 denial of petition for rehearing.

TABLE OF AUTHORITIES

Banks v. United States,

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

Board of Regents of the Univ. of the

State of New York v. Tomanio,

446 U.S. 478 (1980)...............

37,38,42

Branch v. Umphenour, 936 F.3d 994

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

26,32

CAB i/. Carefree Travel, Inc.,

513 F.2d 375 (CA2 1975)

Calderon v. 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)

Cohen v. Beneficial Industrial Loan Corp.,

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

5,16,17,28

Coleman v. Labor & Indus. Review

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

20,32

Commercial Space Management Co., Inc. v.

Boeing Co., Inc.,

193 F.3d 1074 (9th Cir. 1999)..............

Commodity Futures Trading Commission v.

Schor Conticommodity Services, Inc v.

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

7,8

Coolidge v. Schooner California,

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

Cooter & Gell v. Hartmarx Corp.,

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

County of Sacramento v. Lewis,

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

17-19,44

DeCosta v. Columbia Broadcasting System,

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

Erie Railroad Co. v. Tompkins,

304 U.S. 64 (1938)......

34,37

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

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

24,26

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)

17-19,44

Goodwin v. Landquest Dev., LLC, 779

S.E.2d 826 (S.C. App. 2015)....

39,40,42

Hagood i/. Sommerville,

607 S.E.2d 707 (2005)

16,17,28

Hill i/. Jenkins,

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

Hilton v. BraunskiU, 481 U.S. 770 (1987)

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

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'I Servs., Inc.,

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

LaBuy v. Howes Leather Company,

352 U.S. 249 (1957).............

League of Women Voters of N. Carolina v.

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

Leardini v. Charlotte-Mecklenburg Board of

Educ., 2011 WL 1234743

(W;D.N.C. 2011) (unpublished).........

Marex Titanic, Inc. v. The Wrecked and

Abandoned Vessel, 2 F.3d 544

(4th Cir.1993)..............................

38,41

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

9,10

Maxwell v. Genez, 591 S.E.2d 26

(S.C. 2003).....................

39-42

McAdams v. Robinson, 26 F.4th 149

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

6,8

McCall-Bey v. Franzen, 111 F.2d 1178

(7th Cir.1985)............................

40,42

McFarland v. Wells Fargo Bank, N.A.,

810 F.3d 273 (4th Cir. 2016)...

41,42

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

Morrison, Matter of, 468 S.E.2d 651

(S.C. 1996).............................

17-19,44

39,41

Muhich v. Allen,

603 F.2d 1247, 12.51 (7th Cir.1979)...

North American v. Boston Medical, 906 A.2d

1042, 170 Md. App. 128

(Md. App. 2006)..................................

Northern Pipeline Const. Co. v. Marathon

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

O' Donoghue v. United States,

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

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

22,30

Orpiano v. Johnson, 687 F.2d 44

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

13,14,22,30

Pacemaker Diagnostic Clinic of America, Inc.

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

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

Patmore v. United States,

411 U.S. 389 (1983)

Peoples v. Rogers, C/A NO. 8:10-24-CMC-BHFI

(D.S.C. Feb. 1, 2010)

Rainha v. Cassidy,

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

Reed v. Board of Election Comm'rs,

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

9,11

Rice v. McKenzie, 581 F.2d 1114

(4th Cir. 1978)................... ■.

24,25

Roell v. Withrow, 538 U.S. 580 (2003)

Russell v. Lane, 890 F.2d 947

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

Semtek Int'l. Inc. v. Lockheed Martin Corp.,

531 U.S. 497 (2001)..............................

8,21,22,30

35,39-41

Smith v. City of Chicago Heights,

951 F.2d 834 (7th Cir. 1992)..

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

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

7,9,11

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

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

22,30

United States i/. Barber, 865 F.3d 837

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

26,32

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

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

22,26,30,32

United States i/. Raddatz,

447 U.S. 667 (1980)

7,12,13,23,31

United States i/. Shiraz, unpublished

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

26,32

Wade v. Danek Medical, Inc., 182 F.3d 281

(4th Cir. 1999)........................... ...........

34,38,41

Walton v. Lindler, 972 F.2d 344

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

Wharton-Thomas v. U.S.,

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

8,9

Willie James Glover, Plaintiff-Appellee

Cross-Appellant, v. Alabama Board of

Corrections, EtAL, Defendants, James

Towns, Defendant-Appellant

Cross-Appellee., 660 F.2d 120

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

Wimmer v. Cook, 774 F.2d68

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

22,30

14,21,22,29,30

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

11,14

Winter v. Natural Resources Council, Inc.,

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

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

17-19,44

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 November 2, 2023, opinion of the United States court of appeals and all

intermediate orders as well as all district court orders are appealed. 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 February 27, 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 appealing

the November 2, 2023, order and all intermediate orders. The underlying case

involves violations of state and Federal law, including S.C. Code § 38-59-20, et

seq., Improper Claim Practices. Defendants failed to even respond to multiple

reasonable attempts to resolve repeated, ongoing wrongdoing. With no other

recourse, the dispute was filed with the district court.

The following are facts pertinent to the petition herein. Petitioner timely

filed motion for 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, which was wrongfully referred to a

magistrate who denied the motion improperly relying on a local civil rule as

authority and failing and refusing to address the merits. Timely appeal to the

conflicted district court judge, certification of appeal, and motion for stay pending

appeal were denied. Thereafter, timely appeal to the court of appeals and

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

REASONS FOR GRANTING THE WRIT

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, 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 to R&R. To the extent imprecise district court docketing could or

would mislead a lower appellate court, the petitioner respectfully requests appeal

herein with stay pending resolution of the appeal of denial of substantial rights

incapable of vindication on appeal. The petition for writ of certiorari is respectfully

submitted.

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 lower appellate court 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 reflects 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 without

consent including but not limited to, appeal by and through the conflicted district

court judge, diminished standard of review with R&R, denial of full and fair judicial,

review, and/or diminished time to file objection/appeal of R&R with potential loss

of full, fair, and meaningful review if deemed untimely by the conflicted

overworked and underpaid district court judge.

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

petitioner respectfully submits this petition for a writ of certiorari. The recent

McAdams case states, "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 express 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 Schor case 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 litigant?:

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 v. 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). Roe/i 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 v. 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

the master is

master or other officer to hear and decide all the issues

clothed with very different powers from those which he exercises upon

ordinary references, without such consent." Id.

Wharton-Thomas v. U.5., 721 F.2d 922 (3rd Cir. 1983) (emphasis supplied).

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 Flearings 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 i/. 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 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. The petitioner's

timely appeals herein confirm the issues are capable of repetition, capable of

evading judicial review, and incapable of vindication on appeal: Important public

issues have been misapprehended, overlooked, ignored, or rebuffed.

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 \/. 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 by the district

court of appropriateness for referral to 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 Reed case 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. McMillen, 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 Coi ig. & 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.' 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 v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65

L.Ed.2d 424 (1980). Under these facts, the petitioner raises these serious

questions herein.

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 vJenkins) 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 vJenkins, 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 i/. 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, 11A 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 \/. 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 (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 express non-consent to a magistrate. To the

extent a 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 referraf to

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

consequences when consent is withheld, including but not limited.to, the

conflicted district judge's neutrality is thereby seriously questioned, petitioner is

prejudiced 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

anticipates a specific order of reference 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, 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 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 wilLsuffer 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 of

N. 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, the burden

of proof (BOP) is met on all four requirements for granting stay pending appeal of

matters of great public importance and substantial Constitutional rights incapable

of vindication after-the-fact on appeal which must be immediately appealed or be

waived. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47

(1949); Hagoodv. Sommerville, 362 S.C. 191, 607 S.E.2d 707 (2005).

a. Petitioner's Success on the Merits

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

following is incorporated herein by reference. The substantial rights at issue

herein are granted by our cherished Constitution. It is respectfully submitted

petitioner timely requested the substantial right of de novo determination by

Article III Judicial Officer without R&R on dispositive matters. The clerk's

"assignment" to a magistrate per Local Rule does not authorize referrals to and

does not authorize impermissible delegation to a magistrate without consent for

R&R on dispositive matters. Permission to appeal was wrongfully denied.

Overworked and underpaid district court judges may not be neutral decision

makers in ruling on the request for permission to appeal rendering such requests

futile. Accordingly, success on the merits is predicted which supports stay

pending appeal. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 54647 (1949); Hagood v. Sommerville, 362 S.C. 191, 607 S.E.2d 707 (2005). "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 v. 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). See U.S. Const., Article III; U.S. Const, amend. I, IV, V,

VII, and XIV; S.C. Const., Article I, sec. 9 and 10; S.C. Const., Article I, sec. 9 and

10.

b. Irreparable Harm

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

following is incorporated herein by reference. Under these facts, denial of

substantial rights akin to the right to a particular mode of trial must be

immediately appealed or waived. Such orders on appeal are effectively

unreviewable and incapable of vindication on appeal due to the irreversible

effects of the decision. Current appeal of coerced R&R on dispositive matters

irreparably denies and/or diminishes substantial rights and prevents a judgment

from which full and fair meaningful review might be taken by, including but not

limited to, reduction in the amount of time to object/appeal R&R, futile appeal to a

non-neutral district court decision-maker, diminished standard of review, and/or

denial of the substantial right of full and fair meaningful review of the decision of

a single conflicted individual who is overworked and underpaid in the district

court. Further, the order adversely affects petitioner's family's and petitioner's

individual and property rights causing irreparable harm and denying full and fair

meaningful opportunity to be heard at a meaningful time which predicts success

on the merits and which supports the petitioner's position. Accordingly,

irreparable harm supports the appeal with stay pending appeal. "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 v. 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., Article III; U.S. Const, amend. I, IV, V, VII,

and XIV.

c. The Balance of Equities

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

following is incorporated herein by reference. The balance of equities favors the

petitioner who is disproportionately adversely affected as well as petitioner's

family and petitioner's individual and property interests. Moreover, the balance of

equities favors the petitioner, a small practitioner, regarding defendants'

wrongdoing which disproportionately affects small practices, including the

petitioner's. To the extent defendants’ wrongdoing adversely affects the public

health and the healthcare system, and the record reflects it does, the balance of

equities favors the petitioner. Accordingly, the balance of equities and the totality

of circumstances favor the petitioner. "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 v. 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.,

Article III; U.S. Const, amend. I, IV, V, VII, and XIV.

d. Public Interest is Served

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

following is incorporated herein by reference. Overlapping with the balance of

equities above, to the extent defendants' wrongdoing adversely affects the public

health and the healthcare system, and the record reflects it does, the balance of

equities favors the petitioner. Moreover, the balance of equities favors the

petitioner, a small practitioner, regarding defendants' wrongdoing which

disproportionately affects small providers. The propriety of referral herein to the

magistrate for disposition on the motion for the substantial right of de novo

determination by Article III Judicial Officer without R&R on dispositive matters is

challenged. It is fair to say the district court judge is abundantly aware of the

difference between an Article III Judicial Officer and a magistrate. Objection and

denial of consent to magistrate R&R on dispositive matters is timely entered. 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 plaintiff'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

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)).

Moreover, the district court's denial of the motions and denial of substantial rights

undercuts appearance of a disinterested court.

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

Court. Specifically, petitioner respectfully appeals unauthorized, non-responsive,

arbitrary, and/or capricious denial of substantial rights in the district court upon

timely request for de novo determination by Article III Judicial Officer without R&R

on dispositive matters. 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 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 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 (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 between 28 U.S.C. §

636(b)(1) and 28 U.S.C. § 636(b)(3) 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 matters is not forfeited nor voluntarily and expressly waived but is

timely reserved and not waived. Wimmer v. Cook, 11A 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

dispositive matters rendering request for permission to appeal futile and/or

conflicted.

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 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 v. 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 CrossAppei/ant, 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 v. Lindler, 972 F.2d 344

(4th Cir., 1992) (unpublished). The record suggests predetermined outcome,

impermissible delegation, undue influence, e.g., by magistrate, favoritism/bias,

retaliation and/or other unconstitutional factor which supports reversal.

Ambiguity regarding impermissible delegation without consent is reversible error.

Similarly, application of the improper legal standard and/or ambiguity regarding

the proper legal standard is reversible error. To the extent there is ambiguity, and

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

The propriety of referring a motion for de novo determination by an Article

III Judicial Officer without R&R on dispositive matters to a magistrate is

challenged. As a threshold matter, the magistrate would have no authority over

the district court judge and the Local Rules cited do not authorize such referral for

disposition by a magistrate. Further, by wrongful referral, the district court judge

thereby predetermines the outcome of denial by refusing to grant the meritorious

and protected substantial right of an Article III Judicial Officer on dispositive

matters, prejudicing and/or signaling the matter for a second class system of socalled justice dispensed by a non-Article III Judge with diminished standard of

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

R&R without consent. Petitioner respectfully asserts an abundant body of law

decisively determning separate is never equal. 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 alleged wrongful referral to a magistrate results

in the predetermined outcome of denial with the appeal of the magistrate's denial

to the district court judge who predetermined that outcome. The appeal of that

predetermined outcome herein was followed by the district court judge's lack of

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

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

review). Predetermined outcome and/or lack of de novo determination, such as,

e.g., wrongful referral and/or impermissible delegation, is corroborated further by

a pattern and practice herein of the district court judge citing little, if any, case

law on the merits. Petitioner asserts prejudicial error and requests reversal.

In even-handedness, transparency, and fundamental fairness, a neutral

decision-maker should decide the appeal of the magistrate's denial, not the

district court judge who referred to the magistrate, thereby predetermining the

outcome of denial. By analogy, occasionally, a recently appointed appellate court

judge will find him or herself in the position of potentially reviewing a decision

that he or she made while in the court below. In these cases, the Judge or Justice

will recuse him or herself from reviewing his or her own decision. A judge "shall

disqualify himself in any proceeding in which his impartiality might reasonably be

questioned." Rule 3(E)(1), CJC, Rule 501, SCACR. Disqualification is required if a

reasonable factual basis exists for doubting the judge's impartiality. Rfce v.

McKenzie, 581 F.2d 1114, 1116 (4th Cir. 1978). In the Rice case, then Chief Judge

Haynsworth further ruled that, "For many years a federal judge has been

prohibited from sitting to hear or determine an appeal in a case or issue tried by

him. 28 U.S.C.A. § 47. To say the least, it would be unbecoming for a judge to sit in

a United States Court of Appeals to participate in the determination of the

correctness, propriety and appropriateness of what he did in the trial of the case.

After rendering decisions, some judges remain open minded, and some are

unreluctant to confess previous error, but a reasonable person has a reasonable

basis to question the impartiality of a judge who sits in a United States Court of

Appeals to review his own decision as a trial judge." Id. at 1117. The inquiry is

whether a reasonable person would have a reasonable basis for questioning the

judge's impartiality, not whether the judge is in fact impartial. Id. at 1116. This

oft-cited case is well stated, sound, and universally accepted as logical and fair.

"There is another way to look at the case, however: as one in which the losing

litigant appeals from a ruling by Judge X to an appellate panel that includes Judge

X; and it is considered improper-indeed is an express ground for recusal, see 28

U.S.C. Sec. 47--in modern American law for a judge to sit on the appeal from his

own case. On this ground the Fourth Circuit held in Rice that section 455(a)

required the district judge to recuse himself. [Rice v. McKenzie, 581 F.2d 1114,

1116 (4th Cir. 1978).] We agree with this result." Russell v. Lane, .890 F.2d 947

(7th Cir. 1989) (emphasis supplied). The district court judge who allegedly

wrongfully referred, thereby predetermining the outcome, is not a neutral

decision-maker on appeal of that magistrate's denial of the substantial right of de

novo determination by Article III Judicial Officer without R&R on dispositive

matters. Accordingly, petitioner respectfully requests reversal.

Predetermined outcome and/or lack of de novo determination is

corroborated by a pattern and practice of inadequate explanation for meaningful

review and by adopting R&R's citing little, if any, case law on the merits. See,

e.g., Fidrych v. Marriott Int'l, Inc., 952 F.3d 124, 146 (4th Cir. 2020). Specifically

the district court opinion is based on error of material fact and law and fails to

provide adequate explanation for meaningful review, fails to address the merits,

and/or fails to cite supporting case law. The record reflects consent to magistrate

R&R on dispositive matters has not been given. The magistrate has no authority

and no jurisdiction without consent on dispositive/substantive matters. But for

clear error herein, the outcome should and would be different in petitioner's favor.

In addition, the recent 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." 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 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)). 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 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 judicial review, is diminished for pro se litigants by coerced

R&R, and the record reflects that it is, magistrate R&R on dispositive 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 by an Article III Judicial Officer without

R&R under these facts 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 and reversal. 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. 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 issues must be immediately appealed

with stay pending appeal which is requested. Cohen v. Beneficial Industrial Loan

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

S.E.2d 707 (2005). For the reasons stated, petitioner respectfully submits the

burden of proof (BOP) is met on all four factors for granting stay.

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. To the extent there is a pattern

and now practice of this magistrate's overreaching attempts to 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

non-consent to this magistrate. Cooter & Get! 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)). Moreover, case law supports the

petitioner's private right of action granted in, including but not limited to, the ACA

as a member of a protected class for intentional and/or disparate 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 other. See

Callum v. CVS Health Corp., 137 F.Supp.3d 817, 848 (D.S.C. 2015).

In sum, the factual contentions have evidentiary support and/or, as

specifically identified including'but not limited to, defendants' misrepresentations,

wire fraud, breach of confidentiality, unequal pay for equal work, and/or other

wrongdoing will likely have evidentiary support after a reasonable opportunity for

further investigation or discovery including but not limited to, discovery of

information secreted/hidden by defendant. It is respectfully submitted all

requirements are met for stay including but not limited to, a meritorious case, a

lack of claim of unfair legal prejudice by the other side, a lack of unfair prejudice

to the other side, and extraordinary circumstances as well as appropriateness to

accomplish substantial justice. Accordingly, reversal is respectfully requested.

3. Whether a reasonable person reasonably questions the neutrality of the

overworked and underpaid district court judge on appeal of coerced Report &

Recommendation (R&R) without consent after denial of a citizen's motion for the

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

on dispositive matters.

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

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

substantial right of 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 v. 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 Wimmerv. Cook, 11A 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 v. Lindler, 972

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

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

dispositive/substantive matters without consent. Further, by wrongful referral to a

magistrate, the district court judge thereby signals, biases, or predetermines

adverse substantive consequences 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, appeal to the conflicted overworked and underpaid district

court judge, diminished appeal rights, diminished legal standard on appeal, and/or

diminished time to appeal/object to the R&R without consent with loss of appeal

rights if the conflicted district court judge deems the appeal/objection 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 reversal.

In addition, the unpublished case of Shiraz addresses impermissible