Petition for Writ of Certiorari — Patsy N. Sakuma, Petitioner v. Association of Apartment Owners of the Tropics of Waikele, et al.

Supreme Court briefJun 10, 2024

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(

FILED

JUN 1 0 2024

IN THE

SUPREME COURT OF THE UNITED STATE!

PATSY N. SAKUMA, PETITIONER PRO SE

vs.

ASSOCIATION OF APARTMENT OWNERS OF THE TROPICS

AT WAIKELE, BY ITS BOARD OF DIRECTORS, ET AL.,

RESPONDENTS,

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

PATSY N. SAKUMA, Petitioner Pro Se

P.O.BOX 235364

Honolulu, HI 96823

808-454-3171

■

QUESTIONS PRESENTED

Whether 42 U.S.C. Sections1985(2),(3) and a new RookerFeldman

exception that exists also under Lance v. Dennis are jurisdictional exceptions to

the Cross-Appeal Rules and may he added as another theory of looker-Feldman

exceptions to that portion of the Judgment, in favor of Petitioner Pro Se?

Whether the Third Panel of the Ninth Circuit court of appeals, may

own their own initiative, excuse the respondents’ failure to file a notice of cross

appeal based on an alternative jurisdictional argument that the Ninth Circuit en

banc court had already rejected, convert the summary judgment on the RICO

merits for respondents to a dismissal for lack of jurisdiction, and not rule on

Petitioner Pro Se’ appeal including adding a new Rooker-Feldman jurisdictional

exception to the parallel-action exception, her jurisdictional unlabeled civil rights

1985(2),(3) daimse by virtue of 28 U.S.C. 1343(c)(1), contention that these changes

in law under Kemp v. Unitied States cannot be consistenly applied with circuit

precedent and so is an exceptional circumstance to reverse the adverse judgments

agaist under Rule 60(b) her to reopen her case.

sakuma_aoaotropics@waikele_61024

LIST OF PARTIES

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

[X1 All parties do not appear in caption of the case on the cover page.

A list of all parties in the proceeding in the court whose judgment

is the subject of this petition is as follows:

1. Petitioner Pro Se here and Plaintiff-Appellant below is Patsy N. Sakuma, an

individual.

2. Respondent here and Defendant-Appellee below is Association of Apartment

Owners of the Tropics at Waikele (AOAO), a Hawaii unincorporated association,

by its Board of Directors,

3. Association of Condominium Homeowners of Tropics at Waikele (AOCH),

Defendants-Appellees-Respondent

4. Milton M. Motooka, an individual, Defendant-Appellee-Respondent

5. Love Yamamoto & Motooka, LLC, a Hawaii law corporation, DefendantAppellee-Respondent

6. Motooka Yamamoto & Revere, LLC, a Hawaii law corporation, DefendantAppellee-Respondent

7. Porter McGuire Kiakona & Chow, LLP, a Hawaii limited-liability law

partnership, Defendant-Appellee-Respondent

8. James S. Kometani, Hawaii State, Court-Appointed Foreclosure Commissioner,

Defendant-Appellee-Respondent

9. Title Guaranty of Hawaii, Inc., a Hawaii corporation, Defendant-AppelleeRespondent

10. Title Guaranty Escrow Services, Inc., a Hawaii corporation, DefendantAppellee-Respondent

11. First Hawaiian Bank, a Hawaii corporation, and

12. Watanabe Ing, LLP, a Hawaii limited-liability law partnership

RELATED CASES

2001

• Patsy N. Sakuma v. Association ofApartment Owners ofthe Tropics At

WaikeldMilton M. Motooka! Ha waiiana Property Management Co.! D.R. HortonSchuler Homes, LLC, filed August 21,2001, Civ. No. i:01-cv-00556“DAE:BMK:

Complaint for unlawful handicap associational discrimination under the Fair

Housing Act (FHA) and unlawful handicap design violations for new housing under

the Americans With Disability Act (ADA), Title II (Covenant, Program or Services)

.Enforced Settlement w/Clerk of the District Court signing for Plaintiff Pro Se

Sakuma. 9th Cir. Appeal Nos. 03 00147; 05:16940; 06-16121; 07:16396; 07:17189;

07-17298.

• Association ofApartment Owners of Tropics at Waiklele, by its board of

directors v. Patsy N. Sakuma! First Circuit Court of the Circuit Court of the State

of Hawaii, Civ. No. 1RC01-5514 (state assumpsit action), removed by Sakuma,

below).

2002

• Association ofApartment Owners of Tropics at Waiklele, by its board of

directors v. Patsy N. Sakuma!Removed State Action for assumpsit, by Sakuma;

Hawaii State, Cir. Ct., First Cir. No. 1RC01-5514. Renumbered as The United

States District Court of the Hawaii District, Civ. No. l‘02-cv-00147:HG:LEK. 9th

Circuit Appeal No. 03-15480. Enforced settlement with the clerk of the district

court signing in lieu of Sakuma.

2007

• Association of Condominium Homeowners of Tropics at Waiklele, by its

board ofdirectors v. Patsy Naomi Sakuma! First Hawaiian Bank, a Hawaii

enmnmtinn: Waikele Community Assocation. a Hawaii nonprofit corporation Circuit Court of the First Circuit Court of the State of Hawaii, Civ. No. 07-1487

(State foreclosure) . Court of Appeals (ICA), CAAPNos. 11:0000054, 12:0000145,

No. 12:0000870, 16:0000627. SCWC Nos.11:0000054; 12:0000145; 12:0000870; 16000627. SCPWNo. 12-00001057,2012 WL 6929416; United States Supreme Court

No. 21-5676.

• Hawaii Published Decision: Ass’n. of Condominium Homeowners v.

Sakuma; SCWC: 12-0000670, 131 Haw.254, 318 P.3d 94 (2013).

• Unpublished dispositions: 2011 Haw. App. LEXIS 830 (Aug. 3 2011), 2011

WL 3671965; CAAP No., 2012 WL 2924102; CAAP No. 2013; 2015 Haw. App.

LEXIS 377; Hawaii Supreme Court, No. 21-5676 (petition denied).

2008

• PatsyN. Sakuma v. Association ofCondominium Homeowners ofTropics at

Waikele, by its Board ofDirectors! Karen N. Blondin, The Honorable Circuit Judge

Karen N. Blondin! James S. Kometani, USDC- Haw. Civ. No. l-08-cv-000502 HGKSC; 9th Cir. Nos. 09-16229, 09-17488; 1215496.

iii

TABLE OF CONTENTS

Pape No.

QUESTIONS PRESENTED

LIST OF PARTIES

RELATED CASES

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED.

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AUTHORITY/STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR THE PETITION

THIS CASE IS IMPORTANT

CONCLUSIONS

APPENDIX

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Pape No.(s)

Order Denying Hearing and Hearing En Banc Petition 9C- No. 22-16929, (March 12, 2024)..............................

App.01

Order Granting Motion for Extension to File Hearing,

Ap. 02

Hearing En Banc Petition, (January 17, 2024)...........

Memorandum - affirming Order Denying

Sakuma’s Rule 60(b)(1),(6) post-judgment motions

9C- No. 22-16929, (December 15, 2023)....................... .Ap. 03 04

Order (l) Granting Motion for Leave; And (2)

Denying Amended Renewed Motion for Relief From

Judgment, USDC Haw Civ. No. L16-CV-00274-DKWKJM, (November 28, 2023)........................................... Ap. 05 07

Order Denying Rehearing Petition, Supreme

.Ap. 08

Court No. 21*6072, (March 7, 2022),142 S.Ct. 1354...

Appendix F

Order Denying Petition for Writ of Certiorari,

Ap. 09

S.Ct. No. 21-6072, (January 10, 2022), 142 S.Ct. 795

Appendix G Order Denying Hearing and Hearing

En Banc Petition, 9C- No. 19-16615, (May 25, 2021)......Ap. 10-11

Appendix H Memorandum*; 9C- No. 19*16615, affirming post.Ap. 12-13

judgment motions, (January 26, 2021)

Appendix I Appellate Commissioner Peter I. Shaw’s Order Limiting

App. No. 19-16615 to review of the June 14, 2019 order &

July 30, 2019 post-judgment order, (October 3, 2019).... Ap. 14-15

Appendix J EO, Denying Motion for Leave to File Reconsideration,

(July 12,2019).................................................................. Ap. 1617

Appendix K Order Denying Motion For Relief From Judgment and

Order; USDC-Haw.Civ. No. i:l6 cv-00274-DKW KJM,

(June 14, 2019)................................................................. .Ap. 18-25

Appendix L Order Denying Rehearing Petition, S.Ct. No.

Ap. 26

18-5424, (December 3, 2018), 139 S.Ct. 624 (2018).......

Appendix M Order Denying Petition for Writ of Certiorari.

S.Ct. No. 18-5424, (October 9, 2018), 139 S.Ct. 328 (2018)... Ap. 27

Appendix N Order Denying Rehearing and Rehearing and En Banc

Petition, 9C* No. 16-16791, (May 1, 2018)..................... .Ap. 28-29

Appendix O Memorandum, 9C- No. 16 1679l(Dec. 21, 2017),

707 Fed. Appx. 906 (9th Cir. 2017)...,.......................... ■Ap. 30-31

Appendix P Judgment of Dismissal with Prejudice, l-16-cv-00274DKW-JKM, (October 28, 2016)...................................... Ap.32-33

Appendix Q Order Granting (l) Porter McGuire Kiakona& Chow, LLP’s,

(2) James. S. Kometani’s, (3) First Hawaiian Bank & Watanabe

Ing, LLP’s, and (4) Milton M. Motooka, Motooka Yamamoto &

Revere, LLC’s Motions to Dismiss (Oct. 28, 2016),

Ap.34-42

2016 WL 643342

TABLE OF AUTHORITIES

Page No.(s)

Cases

Ackermann v. United States

340 U.S. 193 (1950)

Alaska Industrial Bd. v. Chugach Electric Ass’n, Inc.,

356 U. S. 320, 323-325 (1958)..................

Arkansas State Conference NAACP v. Arkansas Bd. OfApportionment,

91 F4th 967 (8th Cir. 2024)..................................................

20,23,29

Arvie v. Broussard, 42 F3d 249

(5th Cir. 1994)(per curiam)

Autumn Wind, LLC v. Estate of Siegel,

No. 23-54656 (02/08/24)...

Ball v. Rodgers,

492 F3d 1094 (9th Cir. 2000)

Benson v. Armontrout,

767 F2d 454, 455 (8th Cir. 1985)

Bullard v. Sercon Corp.,

846 F2d 463 (7th Cir. 1988)

Brown v. Arizona,

82 F4th 863, 873 (9th Cir. 2023)(en banc)

6,16,22

Champagne v. Schlesinger,

506 F2d 979, 982 (7th Cir. 1974)

Conover v. Lein,

87 F3d 905, 908 (7th Cir. 1996)

Correa v. Taylor,

563 F2d 396, 399 (9th Cir. 1977)

Delgado-Caraballo v. Hosp. Pavia Hato Rey, Inc.,

889 F3d 30, 39 n. 15 (1st Cir. 2018)..

Douglas v. City ofJeannette,

319 U.S. 157 (1943)

27,28

E.F. Operating Corp. v. American Bldgs.,

993 F2d 1046 (3rd Cir. 1993)

Eberle v. City of Anaheim,

901 F2d 914 (9th Cir. 1990)

Engleson v. Burlington N.R. Co.,

972 F2d 1038 (9th Cir. 1992)

17,26, 27

Exxon Mobil v. Saudi Basic Indnst., Inc.,

544U.S. 280(2005).............

19,27

Feldman v. District of Columbia Court of Appeals,

460 U.S. 462, 479-482 (1983).............

16,19,20,28

FTC v. Consumer Defense, LLC

926 F3d 1208 (9th Cir. 2019)

Georgia Pacific Consumer Products LP v. NCR Corp.,

40 F4th 481,483-484 (6th Cir. (2022)...........

Greenlaw v. United States,

554 U.S. 237 (2008)

Gunter v. Beavis,

906 F3d 484, 493 (6th Cir. 2016)

.27

Hamer v. Neighborhood Housing Servs. of Chicago,

138 S. Ct.13 (2017)....................................

Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428, 434-435 (2011)...

Hodges v. Callaway,

499 F2d 417, 424 (5th Cir.1974)

In re Breland,

939 F3d 919 (11th Cir. 2021)

In re Glenfedlnc., Sec. Litig.,

42 F3d 1541 (9th Cir. 1994 (en banc)

vii

.23,28

Jennings v. Stephens>

574 U.S. 271, 276 (2015)

21,25

June v. Union Carbide Corp.,

577 F3d 1234, 1248 n.8 (10th Cir. 2009)

Karcherv. May

484 U.S. 72 (1987)

15.18

Kemp v. United States,

142 S.Ct. 1856 (2022)

12,16

Knick v. Twsp. Of Scott,

138 U S. 1202 (2018)

Kontrick v. Ryan

540 U.S. 433 (2004)

Lance v. Dennis,

546 U.S. 459 (2006) (per curiam)

15,17,18,19

Latshaw v. Trainor Wortham & Co.,

421 F3d 1097 (9th Cir. 2006).

Living Designs, Inc. v. E.I.Dupont de Nemours & Co.,

431 F3d 353, 361 (9th Cir. 2005).............

Lynch v. Household Finance Corp., 465 U.S. 538 (1972)

Manufactured Home Communities, Inc. v. City ofSan Jose,

420 F3d 1022 (9th Cir. 2005).............................

Noel v. Hall, 341 F3d 1148 (9th Cir. 2003)

Ogden v. Dept. ofTransp.,

430 F2d 417 (6th Cir. 1970)

Raus v. Brotherhood ofRy Carmen,

663 F2d 791 (8th Cir. 1981)

Remijas v. Neiman Marcus Group, LLC

794 F3d 688 (7th Cir. 2015)

Rooker-Feldman Doctrine.

8,19,22,27,28

viii

Sch. Dist. No. 1JMultnomah County/Or v. ACandSInc.

5 F3d 1255 (9th Cir. 1993)...........................

Sedima, SPRL v. Imrez Co., Inc.,

473 U.S. 419, 498 n.12 (1985)

Simpson v. County of Brown

860 F3d 1001 (7th Cir. 2017)

Spann v. Colonial Village, Inc.,

599 F2d24 (1990)................... ......................................

Steel Co. v. Citizens for a Better Envir,, 523 U.S. 83, 94-95 (1988)

Tutein v. Insite Towers, LLC,

572 F.Appx. 107, 113-114 (3rd Cir. 2014)

United States v. Am. Ry. Express Co.,

265 U.S. 425 (1924).......

United States v. Noble,

422 U.S. 435 (1975)

Willingham v. Jordan,

395 U.S. 402 (1963)

Constitutional/Statutory Provisions

18 U.S.C. § 1964(c)...................................

5,11

18 U.S.C. § 1964(d)...................................

28 U.S.C. §1254(1)

28 U.S.C. §1257

28U.S.C.§1331

.28

28U.S.C.§ 1343(a)(1).

11, 26,27,28

28U.S.C.§ 1343(a)(3)

11, 26,28

42 U.S.C. §1983

11,13,26,28

42 U.S.C. §1985(2)

11,13,26,28,29

42 U.S.C. §1985(3)

42 U.S.C. §3601

42 U.S.C. §12131

Code of Federal Regulation

24 C.F.R. 100.24(a)

Federal Rules of Appellate Procedure (“FRAP”)

FRAP

4(a)(3)

20,21

Federal Rules of Civil Procedure (“FRCP”)

FRCP 7

FRCP 59(e).

FRCP 60(b)(1)

12,27

FRCP 60(b)(6).

12,27

FRCP 82

Hawaii Revised Statute (HRS)

HRS §657-20 (UDPA)

5,11

HRS §657-51

Other

Brian J. Gaj’s “Section 1985(2)," Vbl. 70, Cornell Law Review”

http-//scholarship .law.cornell.edu/ciiVvol/70/1334/12

.29

C. Wright, A. Miller, E. Copper, Federal Practice and Procedure, 3571 (1981)........ 29

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

[x] For cases from federal courts?

The opinion of the United States court of appeals appears at Appendix 1-2 to

the petition and is

.» or,

[ 3 reported at

[ ] has been designated for publication but is not yet reported; or,

[x] is unpublished.

5-8 to

The opinion of the United States district court appears at Appendix

the petition and is

or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

[x] is unpublished.

[ ] For cases from state courts?

The opinion of the highest state court to review the merits appears at,

Appendix

to the petition and is

[ ] reported at

.> or,

[ 3 has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the_

appears at Appendix

.court

to the petition and is

or,

[ 3 reported at

[ 1 has been designated for publication but is not yet reported; or,

[ 3 is unpublished.

sakumajwaotropics@waikele_61024

JURISDICTION

[ x] For cases from federal courts*

The date on which the United States Court of Appeals decided my case

was December 15. 2023

[ ] No petition for rehearing was timely filed in my case.

[x] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date- March 12.2024. and a copy of the

order denying rehearing appears at Appendix 01

[ ] An extension of time to file the petition for a writ of certiorari was

granted to and including _______________ (date) on

.(date) in Application No.____________

The jurisdiction of this Court is invoked under 28 U.S.C. §l254(l).

[ ] For cases from state courts*

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix.

[ ] A timely petition for rehearing was thereafter denied on the following

date:

, and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on

(date)

in Application No.

The jurisdiction of this Court is invoked under 28 U.S.C. §1257(a).

s akuma_aoao trop ics@waikelej61024

STATUTORY PROVISIONS AND RULES INVOLVED

• 42 U.S.C. §] 985(2), clause 2 provides in pertinent part: (2) OBSTRUCTION OF JUSTICE

If two or more persons conspire for the purpose of impeding, hindering,

obstructing or defeating, in any manner, the due course ofjustice in any State or Terriotry, with

intent to to deny to any citizen the equal protection of the laws, or to injure him or his property

for lawfully enforcing or attempt to enforce the right of any person, or class of persons, to the

equal protection of the laws...

• 42 U.S.C. § 1985(3) provides in pertinent part:

“‘[I]’n any case of conspiracy set forth in this section, if one or more persons

engaged therein do, or cause to be done, any act in furtherance of the object of such

conspiracy, whereby another is injured in his person or property or deprived of

having and exercising any right or privilege of a citizen of a citizen of the United

States, the party as as injured or deprived may have an action for the recovery of

damages occasioned by such injury or deprivation, against any one or more of the

conspirators.”

• 28 U.S.C. §1257(a) Final judgments or decrees rendered by the highest court of a

State in which a decision could be had, may be reviewed by the Supreme Court by

writ of certiorari where the validity of a treaty or statute of the United States is

drawn in question or where the validity of a statute of any State is drawn in

question on the ground of its being repugnant to the Constitution, treaties, or laws

of the United States, or where any title, right, privilege, or immunity is specifically

set up or claimed under the Constitution or the treaties or statutes of, or any

commission held or authority exercised under, the United States.

• 28 U.S.C. §1331 - Federal question- The district courts shall have original

jurisdiction of all civil actions arising under the Constitution, laws, or treaties of

the United States.

• 28 U.S.C § 1343(a)(1) provides, in pertinent part:

“The district courts shall have original jurisdiction of any civil action

authorized by law to be commenced by any person, provides, in pertinent part:

(1) To recover damages for injury to his person or property, or because of the

deprivation of any right or privilege of a citizen of the United States, by any act

done in furtherance of any conspiracy mentions in section 1985 of Title 42;

(2). To recover damages from any person or properly or to aid in the

preventing of any wrongs mentioned in section 1985 of Title 42 which he had

knowledge were about to occur and power to prevent....”

• Federal Rules of Appellate Procedure 4(a)(3) Multiple appeals. If only one party

timely files a notice of appeal, any other party may file a notice of appeal within 14

days after the date when the first notice was filed, or within the time otherwise

prescribed by this Rule 4(a), which ever period ends later.

sakum,a_aoaotropi£s@waikele_61024

STAT]MilNT OF THE CASE

On June 27, 2016, Petitioner Pro Se Patsy N. Sakuma sued respondents in

the District of Hawaii, Dist.Ct. Dkt. 9, seeking damages, declaratory, and

injunctive relief as an "independent action,” of her prior federal and removed

actions for further unlawful associational handicap discrimination and retaliation

in the foreclosure of her home, under the Fair Housing Amendment Act of 1988, 42

U.S.C. §3601 et seq., handicap accessibility and design violations for new housing,

under the Americans With Disabilities Act of 1990, as amended, 42 U.S.C. §12131

et seq. and 24 C.F.R. § 100.24(a), and labeled eight other causes of action,

including unfair and deceptive acts and practices and fraudulent concealment,

under the Hawaii Revised Statute §§657-20, Racketeering Influenced

Organizations (“RICO”) and conspiracy under Title 18 U.S.C. §§ 1964(c) and (d),

and other state claims. The First Amended Complaint named the eleven

respondents, including her homeowner association, its attorney and law firms,

including Respondent Porter McGuire Kiakona & Chow, LLP, the state-court

appointed foreclosure commissioner, Respondent James S. Kometani, the title

company and its sister-escrow corporation, her mortgage lender and its law firm.

Id. at 1-2.

On October 28, 2016, before any discovery, the District Court entered its

written order dismissing the First-Amended Verified Complaint, granting the

motions to dismiss by Respondents: (1) Porter McGuire Kiakona & Chow, LLP

(PMKC), (2) James S. Kometani, (3) First-Hawaiian Bank and Watanabe Ing, LLP,

sakum.a_aoaotrop ies@wai,kele_61024

(4) Milton M. Motooka, and Motooka Yamamoto & Revere, LLC. In its October 28,

2016 Order, the District Court applied the device of alternative holdings, one based

on the Rooker-Feldman jurisdictional bar and the other on the merits—failure to

state a plausible RICO claim, and with the court declining to exercise

supplemental jurisdiction over the remaining state claims. 2016 WL 6433842, App.

34-41. On that same day, the “judgment was entered in favor of the Respondents

dismissing the action with prejudice.” App. 32-33.

On September 30,2016, Petitioner Pro Se filed her notice of appeal, No. 1616791, to appeal the October 28, 2016 Order and Judgment. Dist.Ct.No. 88.

On Direct Review: Ninth Circuit Appeal No. 16-16791

On January 17, 2017, Petitioner Pro Se timely filed her informal opening

brief contending the district court erred because the parallel action exception to

Rooker-Feldman applied and that she should be able to amend her complaint to

add the missing two RICO predicate acts per respondent. No. 16-16791, Dkt.2.

Only two respondents filed responsive briefs: PMKC and the Commissioner.

No. 16-16791, Dkts. 31, 32. Petitioner Pro Se filed her reply briefs to each of

Respondents’ responsive briefs adding the unearthed HRS §667-51’s legislative

history to refute Rooker-Feldman applied. No.16-16791, Dkts.39-1.6-8; 40 at 4-11.

That same day, Petitioner Pro Se also filed a motion for leave to file Supplemental

Records to add public records of the two predicate RICO acts per respondent to

survive a dismissal at the pleading stage under Sedima, SPRL v. Imrez Co., Inc.,

sakuma_aoaotropics@wcdkele_61024

473 U.S. 419, 498 n.12 (1985). No.16-16791, Dkt 40 at 6-8; 39-1 at 6-8a.

Respondents did not oppose it. No.16-16791, Dkt.

On December 21, 2017, the Ninth Circuit (Panel One) entered the

unpublished memorandum granting Petitioner Pro Se’s motion to Supplement the

Record, but applied waiver on appeal to affirm the district court’s October 26, 2016

Judgment on other grounds. 707 Fed. Appx. 906 (9th Cir. 2017); App.30-31-o. The

December 21, 2017 Memorandum, in pertinent part, cited Noel v. Hall, for review

de novo a dismissal under the Rooker-Feldman doctrine, and (2) that plaintiff must

present factual allegations to state a plausible claim for relief citing Living Designs,

Inc. v. E .1. Dupont de Nemours & Co., 431 F.3d 353, 361 (9th Cir. 2005) (elements

of a RICO claim). Id.

Multiple Petitions for Hearing and Hearing En Banc - App. No.16-16791

Petitioner Pro Se did not receive the December 21, 2017 Memorandum,

nearly a week later, which was mailed just four days before the mail-crunch of the

Christmas holiday. Petitioner Pro Se ended up with filing multiple petitions for

hearing and hearing en banc, three timely and two untimely,with motions for leave

leave to file explaining she had excusable neglect for her mistake in filing multiple

petitions where she raised for the first time her unlabeled §§1985(2),(3) claims in

the First Amended Complaint. No. 16-16791, Dkts. 46, 47, 49, 50 & 52. Petitioner

Pro Se mistakenly asked the court to file the last one, which was beyond the Ninth

Circuit’s deadline, because it corrected many omissions caused by suspected

hackers and of her mistaken belief that she could timely file it because of what the

sakuma_aoaotropics@waikelejS1024

Ninth Clerk had told her when she called about not receiving the memorandum.

9th Cir. App. No. 16-16791, Dkt. 52 at 10.

On May 1, 2018, the Ninth Circuit Panel entered the order denying her

petition for hearing and hearing en banc stating Dkt. 52 superseded the four other

docketed hearing and hearing en banc petitions are denied. App. 28-29n.

2018 RECALLING THE MANDATE

On October 29, 2018, Petitioner Pro Se filed a motion to recall the mandate

objecting to waiver on appeal. But it was merely filed without any review. No. 1616791, Dkt. 57.

2018 U.S Supreme Court Writ of Certiorari, No. 18-5424

On August 28, 2018, Petitioner Pro Se filed her Motion for In Forma

Pauperis and Petition for Writ of Certiorari on two questions presented: 1) circuit

conflict with no circuit applying waiver on appeal to bypass Rooker-Feldman, and

2) circuit conflict in error in panel not sua sponte raising her unlabeled

§§1985(2),(3) claims, in S. Ct. No. 18-5424; D. Ct. No. 101. On October 9, 2018,

the Supreme Court denied Petitioner Pro Se’s petition, S. Ct. No. 18-5424. 139

S.Ct. 328 (2018); App.27m. On December 3, 2018, the Supreme Court denied her

request for rehearing. 139 S.Ct. 624 (2018); App.26-1.

2019 Rule 60(b)(6) Motion for Relief

On April 30, 2019, Petitioner Pro Se filed a motion for relief under Federal

Rule of Civil Procedure 60(b)(6) from the October 28,2016 Judgment. D. Ct.

Dkts.104 at 1-12. Petitioner Pro Se contended no preclusive effect, no waiver on

sakuma_jaoaotropics@wa,ikele_61024

appeal citing new case law Eberle v. City of Anaheim, 901 F2d 914, 918 (9th Cir.

1990), the parallel state and federal action exception to the Rooker-Feldman, and

adding under Lance v. Dennis, 546 U.S. 459,464 (2006)(per curiam) nonparties to

the 2007 state action are not subject to Rooker-Feldman, that she plausibly pled a

§§ 1985(2),(3) civil rights claim even if unlabeled, and that extraordinary

circumstances existed predicated on the intervening change in law under the

Seventh Circuit decision Simpson v. County of Brown. Id. PMKC filed an

opposition. D.Ct. Dkt. 109.

Respondent First Hawaiian Bank filed an opposition,

D.Ct. Dkt. 111. Commissioner filed an opposition, D.Ct. Dkt. 113.

On June 14, 2019, the District Court entered its order denying her Rule

60(b)(6) motion for relief from the October 26, 2016 Order and Judgment. App. 1825k. The District Court concluded the legal errors asserted, even if true, would not

cure her failure to state a plausible RICO claim and that the Ninth Circuit had

affirmed its October 26, 2016 Order and Judgment. App. 20-2 lk. On her claim of

the intervening new law, the District Court concluded Simpson was not new law

and not on point on the RICO claim or Rooker-Feldman issue. App. 22-24k.

On July 12, 2019 Petitioner Pro Se filed a post-judgment FRCP 59(e) motion

for relief from the June 14, 2019 Order based on the intervening new law on

“takings” in Knick v. Twsp. Of Scott, 138 U.S. 1202 (2018): whether Knick

overturned Rooker-Feldman, so she could add a new takings claim against the

Hawaii First Circuit Court of her $129,000.00 foreclosure sale-surplus. D.Ct. Dkt.

120. Petitioner Pro Se also requested leave to amend, if needed. Id.

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On July 30, 2019, the District Court denied her July 12, 2019 post-judgment

motion. App. 16-17j.

Second 9th Circuit Appeal No. 19-16615

On August 14, 2019, Petitioner Pro Se filed her notice of appeal of the June

14, July 30, 2019, and October 28, 2016 orders and judgment. D.Ct. Dkt. 121. On

October 3, 2019, the Appellate Commissioner filed an order to show cause why her

appeal included the October 28, 2016 Judgment, which she opposed in her October

16, 2019 Reconsideration. App.l4-15i; No. 19-16615, Dkt. 3. On November 30,

2019, Petitioner Pro Se filed her informal opening brief and raised the same claims

as in the district court. Appeal No. 19-16615, Dkt.6. On December 17, 2019, a twojudge panel entered an order denying Petitioner Pro Se’s motion for

reconsideration of the October 3, 2019 Order. No. 19-16615, Dkt. 13.

On February 21, 2020, PMKC filed its responsive brief. PMKC basically

mirrored the points for denial in the District Court’s 2019 Orders. No. 19-16615,

Dkt. 14. On February 25, 2019, the Commissioner filed his motion for leave to file

late responsive brief and Answering Brief. No. 19-16615, Dkts. 18-19.

On February 25, 2019, an Order was entered granting Respondent

Commissioner’s motion for leave to file a late answering brief. No.19-16615, Dkt.

22. That same day, Petitioner Pro Se filed her opposition to the Commissioner’s

Motion for Leave to file a late answering brief. No. 19-16615, Dkt. 27.

On June 16, 2020, Petitioner Pro Se filed her informal reply brief. No. 1916615, Dkt. 35. She countered PMKC’s arguments that she did not plausibly plead

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a RICO claim under the elements of pattern, predicate acts, and conspiracy to

commit RICO claim, and that the FAVC established a putative but unlabeled

1985(2) claim under Rule 8, because it overlapped her UDPA and RICO claims, the

UDPA claims occurred in three separate state proceedings, years 2001, 2005, and

2007 by the eleven Respondents. 9C-19-16615, Dkt. 35.

January 26, 2021 Second Panel Memorandum in Appeal No. 19-16615

On January 26, 2021, Panel Two entered its Memorandum affirming the

District Court’s post-judgment orders, but only entering summary judgment on the

RICO merit question in favor of Respondent, denied her §1985 claims based on her

deliberate litigation mistake, which was not excusable neglect or allowed any

ground for relief, and was silent on the Rooker-Feldman issue. App, 12-13f.

2019 Hearing and Hearing En Banc Petition in Appeal No. 19-16615

On March 8, 2021, Petitioner Pro Se filed a petition for hearing and hearing

en banc in Appeal No. 19-16615, Dkt. 42. On May 25, 2021, the Ninth Circuit

entered its order denying her petition for hearing and hearing en banc in Appeal

No. 19-16615. App. 10-1 lg.

2021 Supreme Court Writ of Certiorari - Sp. Ct.No. 21-6072

On October 21, 2021, Petitioner Pro Se filed her petition for writ of certiorari

in S. Ct.. No. 21-6072. D.Ct. Dkt. 135. Here two questions presented were: (1)

whether a federal judge or court must sua sponte raise an imperfectly raised

§ 1985 jurisdictional claim by virtue of 28 U.S.C. 1343(a)(1) before dismissing an

action at the pleading stage based on actual notice; (2) whether the Court will also

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accept for the writ of certiorari to resolve an intra-circuit split in the Ninth Circuit

between Sch. Dist. 1 Multnomah v. ACand S, Inc., 5 F3d 1255, 1262-63 (9th

Cir.1993) affidavit violation and In re Glenfed Inc., Sec. Litig., 42 F3d 1541, 1551

(9th Cir. 1994)(en banc) even buried claims must be considered before dismissing a

complaint for lack of subject-matter jurisdiction.

On January 7, 2022, Petitioner

Pro Se’s Petition for Writ of Certiorari was distributed for the same conference as

Petitioner Dexter Earl Kemp’s petition for writ of certiorari in S. Ct. Nos. 21-6072;

21-5726. D.Ct. Dkt. 138-4. Kemp v. United States, 142 S.Ct. 1856 (2022).

On January 10, 2022, the Order Denying Petition for Writ of Certiorari was

entered in this case. App. 09f. 142 S.Ct. 795. But Kemp's petition for writ of

certiorari was granted on that same day. S.Ct. No.21-5726. On March 7, 2022, the

Order Denying Petitioner Pro Se’s Rehearing Petition was entered. App. 08e. 142

S.Ct. 1354.

November 23, 2022 Leave to File Renewed Rule 60(b) Motions

On November 10, 2022, Petitioner Pro Se manually filed her Renewed Rule

60(b)(1) or (b)(6) Motion. D.Ct. Dkt. 137. As it was not electronically filed the same

day to effectuate same day service by the clerk of the court, she again manually

filed it, on November 23, 2022, D.Ct. Dkt. 138, and served it that same day by U.S.

mail. D.Ct. Dkt. 138. The grounds for the Renewed Motion were based on the

intervening change in law of this Court’s decision Kemp v. United States that

presented exceptional circumstances under FRCP Rule 60(b)(6) and/or 60(b)(1) and

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the new Rooker-Feldman exception to warrant relief from judgments.

November 28, 2022 District Court Order

On November 28, 2022, apparently without waiting for the Respondents to

file any opposition to her November 10, 2023 Renewed Motion or because none was

filed, the District Court entered its order granting leave to file but denying

Petitioner Pro Se’s Renewed Motion.App. 05-07d. The District Court concluded that

it lacked authority to review and reverse the Ninth Circuit’s conclusion that

Latshaw v. Trainor Wortham and Co.’s deliberate litigation mistake precluded

consideration of her putative unlabeled §1985(2),(3) civil rights claims where she

first raised these civil rights claims and not with the district court, commented

what does her proposed new Rooker-Feldman exception under Lance v. Dennis

have to do with not plausibly pleading a RICO claim, and that her renewed motion

was untimely. Ap. 05-07d.

On December 16, 2022, Petitioner Pro Se filed her Notice of Appeal of the

November 28, 2022 District Court’s Order. D.Ct. Dkt. 145.

Informal Opening Brief 9th Cir. App. No. 22-16929

On March 17, 2023, Petitioner Pro Se timely filed her Informal Opening

Brief within the extension deadline. No. 22-16929, Dkt. 6. She contended the same

points of error as in her Renewed Motion, and added new case authorities. Id.

Commissioner’s 2023 Responsive Brief

On May 12, 2023, the Commissioner timely filed his Responsive Brief, but

untimely served it on Petitioner Pro Se, one day late, which fell on a weekend. No.

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22-16929, Dkt. 9.

The Commissioner did not explain why he did not waive his

arguments by not raising them below at the district court. Id. The Commissioner’s

one line arguments with case citation for the standards of review, was like the

Ninth Circuit’s unpublished memorandum format in this action. Id. Without citing

to FTC v. Consumer Defense Fund, Inc., 926 F3d 1208 (9th Cir. 2019), the

Commissioner argued that the intervening Supreme Court decision of Kemp is not

an exceptional circumstance to warrant relief from judgment because it may be

consistently applied with Ninth Circuit precedents and that Petitioner Pro Se

misstated the law because Lance v. Dennis does not hold that non-state parties are

not subject to Rooker-Feldman's jurisdictional bar. Id.

PMKC’S 2023 Responsive Brief

Coinddently, on May 12, 2023, PMKC also timely filed its 2022 Responsive

Brief, but also untimely served it on Petitioner Pro Se, one day late like the

Commissioner. No. 22-16929, Dkt. 11.

PMKC argued that the District Court did not abuse its discretion denying

Petitioner Pro Se’s Renewed Motion because it was untimely filed, it argued for the

first time that the FAVC’s pleadings were frivolous, and like the Commissioner

argued that that Kemp’s does not present an exceptional circumstance because it

may be consistently applied with Ninth Circuit precedents without citing FTC v.

Consumer Defense Inc.Id.

Motion to Leave to File Replacement. Multiple Reply Briefs - App.No. 2216929

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On July 10. 2023, the Clerk of the Court notified Petitioner Pro Se that her

two separately filed informal reply briefs were nonconforming under the new Ninth

Circuit Rule 28-5, which now required a single reply brief to multiple responsive

briefs from appellees. No. 22-16929, Dkts. 26-1&2.

On July 13, 2023, Petitioner Pro Se mailed for filing her motion for leave to

file multiple replacement informal-reply briefs in reply to PMKC’s and the

Commissioner’s responsive brief and to the apparently missing, lost, or undocketed

originally filed and separate reply brief to the Commissioner’s responsive brief she

had mailed and served on June 28, 2023. No. 22-16929, Dkts. 25, 26, and 27, 28.

Petitioner Pro Se contended that the new circuit rule was ambiguous and she could

not predict if PMKC’s and the Commissioner’s Responsive Briefs would be

considered or rejected based on untimely service. No. 22-16929, Dkts. 25, 26, and

27, 28. In reply to the Commissioner’s responsive brief, Petitioner Pro Se

distinguished each case cited to show this Court’s decision Ackermann v. United

States ’s deliberate litigation mistake bar was inconsistently applied in the Ninth

Circuit so that Kemp was extraordinary circumstance to warrant relief from

judgment, its application in Latshaw v. Trainor Wortham & Co. here was unsettled

in the Ninth Circuit and added the case Karcher v. May cited in Lance v. Dennis to

substantiate the new alternative holding under Lance v. Dennis. Id.

In reply to PMKC’s responsive brief, she countered every claim with other

case citation and refuted the FRCP Rule 56(e)’s affidavit violation with the public

records exception to hearsay Fed. R. Evid. 201(b) cited in Manufactured Homes

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Communities, Inc. v. City of San Jose, 420 F3d 1022, 1030 (9th Cir. 2005), which

case the district court cited in its October 28, 2016 Dismissal Order for inextricably

intertwined fraud allegations with the state case. App.34q. The Ninth Circuit Clerk

entered her two reply briefs. No. 22-16929, Dkts. 25 & 26.

December 17, 2023 Panel 3’s Unpublished Memorandum

On December 15, 2023 the Ninth Circuit entered its Memorandum denying

Petitioner Pro Se’s appeal and affirmed the district court’s November 28, 2023

Order. App. 03-04c.

On December 15, 2023, the Ninth Circuit (Panel 3) filed its Memorandum

affirming the district court’s November 28, 2023 Order Denying Petitioner Pro Se’s

2023 Renewed Motion and apparently on their own initiative modifying Panel 2’s

summary judgment on the merits in favor of Respondents to dismissal for lack of

jurisdiction pursuant to waiver on appeal. No. 22-16929, Dkt. 29-1.

March 12, 2024 Order Denying Hearing/Hearing En Banc Petition

On January 29, 2024, Petitioner Pro Se filed her Hearing and Hearing En

Banc Petition in Appeal No. 22-16929 before the extension deadline. No. 22-16929,

Dkt. 32. Her grounds for hearing or hearing en banc were the Panel Memorandum

conflicts with: (1) The recent 9th Circuit en banc decision Brown v. Arizona that

already applied the intervening change of law of Kemp v United States so

Respondents’ argument that is not an extraordinary circumstance could not be

used to excuse Respondents’ failure to file a cross appeal, so a more generous

version of excusing an party’s or party’s attorney’s deliberate litigation mistake

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applied as excusable neglect, that an improperly presented jurisdiction issue still

has to be sua sponted considered, her new proposed Rooker-Feldman jurisdictional

exception was directly derivative under Lance v. Dennis’ holding citing Karcher v.

May and presents a bright-line test for another Rooker-Feldman exception, and

that Panel Three’s reliance on Engleson v. Burlington No. Railroad Co., conflicts

with its own cited authority Engleson, and with the Second Circuit, 5th Circuit, 6th

Circuit and 7th Circuit Courts. Id.

On March 12, 2024, the Ninth Circuit Panel 3 denied her petition for

hearing and hearing en banc. No. 22-16929, Dkt. 33. On March 20, 2024, the

Mandate was entered. No, 22-16929, Dkt. 34.

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REASONS FOR GRANTING THE PETITION

Whether another Rooker-Feldman exception exists under Lance v.

Dennis’ holding.

In Lance v. Dennis, 546 U.S.459, 466 (2006), this Court held that the Rooker-

Feldman jurisdictional doctrine does not bar actions by nonparties to the earlier

state-court judgment simply because for purposes of preclusion law, they could be

considered in privity with a party to the judgment.

This Court cited Karcher v. May, 484 U.S. 72, 77 (1987) as authority

for its holding above in Lance v. Dennis, 546 U.S. at 465. In Karcher, 484 U.S. at

77, this Court stated the general rule “[is] that one who is not a party or has not

been treated as a party to a judgment has no right to appeal therefrom.” The

defendants in Karcher were sued in their official legislative capacity and later

attempted to appeal the judgment in their individual capacity. This Court

dismissed their appeal for lack of standing. The rational was that the Karcher

defendants were not appealing or intending to appeal in their official legislative

capacity since they were not voted back into office. In Lame, this Court

derivatively applied the logic of Karcher’s general rule to the Lame plainitffs to

hold Rooker-Feldman’s jurisdictional bar did not apply to them because they could

not have appealed the prior state-court judgment because they were nonparties in

that state-court judgment.

In this action, Petitioner Pro Se contends the logical transfer of Karcher is

direct. She contends that the Respondents/Appellees-Defendants who were not

state-court parties or treated like one are also not subject to Rooker-Feldman’s

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jurisdictional bar. Under the parallel-action exception to Rooker-Feldman, which

court reaches final judgment first may trigger but does not per se stop the federal

action under preclusion. See, Exxon-Mobil v. Saudi Basis Indust., Corp. 544

U.S.280, 283 (2005). However, under this new exception, the Rooker-Feldman

jurisdictional bar does not reach the federal Respondents-defendants-appellees in

this action under Karcher, 484 U.S. at 77. Like the plaintiffs in Lance, they were

not a state party so they could not have appealed any judgment in the state action.

II.

The new Rooker-Feldman exception is an important question.

A prevailing party may assert another ground for affirmance and it may be

granted if it involves issues that are of significant general importance. United

States v. Nobles, 422 U.S. 435, 241-242 n.16 (1975).

Justice Stewart’s dissent in Lance v. Dennis, lamented that ever since the

Feldman decision [i.e., the inextricably intertwining” test”! from the doctrine’s

straight-forward application in Rooker, the Rooker-Feldman doctrine has produced

nothing but mischief for 23 years. This was illustrated in the district court’s

“resuscitation of the doctrine” in Lance v. Dennis, 546 U.S. at 467, even after

Exxon-Mobil v. Saudi Basis Industries’ attempt in clearing up the confusion.

Therefore, Petitioner Pro Se, as the prevailing party on the Rooker-Feldman issue

on Second Appeal, proposes a new Rooker-Feldman exception that presents a

bright-line test for federal parties and the courts to better navigate resolving the

often confusing and complex Rooker-Feldman jurisdictional question with two basic

components: “1) federal defendants and 2) who were not state parties in the

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related state action.” to Rooker-Feldmans’ jurisdictional bar of federal subjectmatter jurisdiction. And this issue is also presented in the second conflict below.

III.

There are two circuit conflicts

A. Circuits are starting to disregard the cross-appeal rules and

modifying a judgment to a non-appealing party on a forfeited

argument and to the detriment of the prevailing appellant.

The well-established cross-appeal rule under Greenlaw v. United States:, 554

U.S. 237, 244 (2008) is that “an appellate court may not alter a judgment to benefit

a nonappealing party.”

Eleven of the thirteen circuits have addressed the question whether the

forfeiture and waiver rules of FRAP 4(a)(3) cross-appeals as a non-jurisdictional

claim processing rule apply not only to the notice of appeal, but to all the cross

appeal rules.

1. Three circuits have modified a judgment to benefit a non

appealing partiy based on waiver and forfeiture.

Eighth Circuit: In Arkansas State Conference NAACP v. Arkansas Bd. of

Apportionment, 91 F4th 967 (8th Cir. 2024): The Eighth Circuit held they may

modify a judgment in favor of a non-appealing appellee by forfeiture when no party

objects. Circuit Judge Colloton’s dissent in Arkansas Conference NAACP v.

Arkansas Board of Apportionment, 91 F4th at 969-974, however, hits the mark as

to why the Court should hear that pending and this petition for writ of certiorari on

extension for filing until June 28, 2024, S.Ct. No. 23A929: “No case supports

disregarding the cross-appeal rule to grant extended relief to a non-appealing

party, on a forfeited argument, when the prevailing appellants have a fruitful

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avenue to pursueon remand.” This is what the majority in Arkansas State

Conference did. But they are not the only ones.

Sixth Circuit: The Sixth Circuit also recently held that because FRAP

4(a)(3) is a non-jurisdictional claims processing procedure, the rules of forfeiture

and waiver apply. Therefore, the court may may modify a judgment in favor of a

non-appealing appellee, who has waived an argument by not cross appealing to

benefit from a favorable ruling to another party because the co-appellee forfeited

its objection by not raising it until the rehearing en banc stage, and not in its briefs

or at oral argment. See, Georgia Pacific Consumer Products LP v. NCR Corp., 40

F4th 481,483-484 (6th Cir. 2022)(contribution complaint filed in the toxic clean up

paper-mills byyproducts into the abutting rivers and environs);

And yet, the Sixth Circuit later in Autumn Wind, LLC v. Estate of Siegel, No,

23-54656 entered on February 8, 2024, showed the court understands the cross

appeal rules in the new nonjurisdictional world. In Autumn Wind, the 6th circuit

applied the accepted rule that defendant’s subject-matter jurisdictional argument

that the bankruptcy plan confirmation precluded Autumn Wind’s claims were

merely an alternative argument affirming the bankruptcy court’s judgment with

prejudice, citing Jennings v. Stephens, 574 U.S. at 276, quoting Am. Ry. Express

Co., 265 U.S. R 425, 436 (1924).

Ninth Circuit in this case: In an unpublished memorandum, a Third

Panel of the Ninth Circuit in this case, on its own initiative applied waiver on

appeal to alter the Second Panel’s summary judgment on the merits to a dismissal

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for lack of jurisdiction, in favor of respondents, who had faded to cross-appeal the

Rooker-Feldman judgment not in their favor on Second Appeal based on the

parallel-action exception to Rooker-Feldman, which was in Petitioner Pro Se’s favor

in that portion of the judgment, and when Petitioner Pro Se had appealed the

entire case. Furthermore, the Third Panel had excused respondents’ waiver in

failing to cross-appeal based on their alternative jurisdictional arguments, when

the Third Panel knew or should have known the Ninth Circuit en banc court had

just rejected those arguments recently in Brown v. Arizona, 82 F4th 863,873 (9th

Cir. 2023) (en banc).

The modified judgment, therefore, has the effect of lessening the rights of

the parties in those cases and Petitioner Pro Se who had a fruitful avenue to

reverse the summary judgment to be in her favor on Third Appeal based on the

new alternative Rooker-Feldman argument, the jurisdictional exception argument

to cross-appeals, the waiver exception of intervening changes in the law on the

merits, and further case citations to Ball v. Rodgers, 492 F3d 1094, 1102 (9th Cir.

2000), Brown v. Arizona, 82 F4th 863,873 (9th Cir. 2G23)(en banc), and

Willingham v. Jordan, 395 U.S. 402, 406 n.3 (1969).

Cf. Ninth Cir. applying Alaska Indust. Bd. Test: Engleson v. Burlington

NorthernRM. Co., 972 F2d 1038,1042 (9th Cir. 1992). In Engleson, Plaintiffappellant’s reliance on Alaska Industrial Bd. v. Chugach Electric Assn, Inc., 356 U.

S. 320, 323-325 (1958) that defendants-appellees had to file a cross

to raise

the argument of plaintiffs failure to exhaust administrative remedies failed

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because defendants-appellees” jurisdictional argument was in support of the

judgment of dismissal with prejudice.

The Ninth Circuit in Engleson, 972 F2d at 1042-1043 stated that in Alaska

Indus. Bd., the arguments raised by the respondents did not support the judgment

as entered. Accepting the Appellees’ contentions would have required that a

portion of the court of appeal’s decision be vacated. 356 U.S. at 323. The court of

appeals had substantially affirmed the district court’s order reversing the Alaska

Industrial Board’s award of continuing temporary benefits to an employee who also

received a lump-sum award for total permanent disability. Id. The circuit court,

however, held that the lump-sum award for total permanent disability should not

have been reduced by the amounts received as temporary disability prior to the

lump-sum award. Id.

Thus, the timeliness and jurisdictional arguments the respondents raised in

Alaska Industrial Board would not have supported that portion of the circuit

court’s judgment holding that the employer should have paid the employee the full

lump-sum award without any reduction for amounts received as temporary

disability before that time. Id. Where as in Alaska Industrial Board, an appellee

seeks to modify a judgment, he or she must file a cross-appeal.

2. Eight circuits hold that the cross-appeal rules prevent

conversion of a dismissal without prejudice to with prejudice.

In contrast, the First, Third, Fifth, Seventh, Eight, Tenth, Eleventh

Circuits hold contrat Pursuant to the dissent in Arkansas State Conference

NAACP, the First, Third, Fifth, Seventh, Tenth and Eleventh Circuits all hold that

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the cross-appeal rule prevents a court of appeals from converting a dismissal

without prejudice to a dismissal with prejudice. Eg., In re Breland, 989 F3d 919,

922-923 (11th Cir. 2021); Delgado-Caraballo v. Hosp. Pavia Hato Rey, Inc. 889 F3d

30, 39 n. 15 (1st Cir. 2018); Tutein v. Insite Towers, LLC, 572 F.Appx. 107, 113-114

(3rd Cir. 2014); June v. Union Carbide Corp., 577 F3d 1234, 1248 n.8 (10th Cir.

2009); Conover v. Lein, 87 F3d 905, 908 (7th Cir. 1996); Arvie v. Broussard, 42 F3d

249, 250 (5th Cir. 1994)(per curiam).

First Circuit: Delgado-Caraballo v. Hosp. Pavia Hato-Rev., Inc., 889 F3d

30, 39 n.15 (1st Cir. 2018). The First Circuit concluded that dismissal of local law

claims on the statute of limitations ground would be a dismissal not without

prejudice, but with prejudice. The appellee’s argument was not properly before the

court so the court did not hear the statute of limitations claims.

Third Circuit: Tutein v. Tinsite Towers, LLC, 572 F.App’x 107, 113-114

(3rd Cir. 2014). Homeowner sued for personal injiury and property damage from

the construction of two cellphone towers. The Third Circuit dismissed for failure to

exhaust administrative remedies, ie. w/prejudice; but not converted into a

dismissal on the merits.

Fifth Circuit: Arvie v. Broussard, 42 F3d 249, 250 (5th Cir. 1994)(per

curiam). Statute of limitations expired but case dismissed without prejudice. The

Fifth Circuit stated that even if the case should have been dismissed with

prejudice, the appellee did not cross appeal so error would not be corrected.

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Seventh Circuit: Remijas v. Neiman Marcus Group, LLC, 794 F3d 688, 697

(7th Cir. 2015) Applying Jennings v. Stephens, alternative holding argument but

rejecting it and holding that if Neiman Marcus wanted a Rule 12(b)(6) relief

(dismissal with prejudice), it needed to file a cross-appeal. The district court

reached only dismissing for lack of jurisdiction (without prejudice) under Rule

12(b)(1). On appeal, the Seventh Circuit reversed the Rule 12(b)(1) dismissal

finding the plaintiffs satisfied standing under Article III and so case was remanded

because the district court did not reach ruling on the Rule 12(b)(6) merits.

habeas corpus claim with prejudice where the court denied relief without prejudice.

Tenth Circuit in June v. Union Carbide Corp., 557 F3d 1234,1248 n. 8

(10th Cir. 2009) de novo review of dismissal for lack of subject-matter jurisdiction

in class-action of uranium-exposed residents of mining and milling town.

Eleventh Circuit: In re Breland, 989 F3d 919, 922-9223 (11th Cir. 2021).

The Eleventh Circuit held the debtor suffered Article III injury when the trustee

stripped debtor of his debtor-in-possession rights which he claimed violated the

13th Amendment and amounted to involuntary servitude, and remanded the case

because it was dismissed without prejudice and not on the merits.

Pre-Jennings v, Stephens:

D.C. Cir.: In Spann v. Colonial Village Inc., 899 F2d 24, 33 (D.C.Cir. 1990),

commenting that dismissal for lack of personal jurisdiction is without prejudice soa party may bring action in another forum; vs. District Court held that FHA claim

time-barred. D.C. Cir. disagreed and reversed. Personal jurisdiction and venue

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may be waived at any stage of the proceeding, FRCP 7 and generally waived by not

cross-appealing. But because a cross-appeal in the D.C. Circuit is not

jurisdictional, the court may excuse the failure to cross appeal for exceptional

circumstance which existed in that case.

Seventh Circuit: Bullard v. Sercon Corp., 846 F2d 463, 467 (7th

Cir.l988)(appellees may properly advance jurisdictional argument for failure to

exhaust administrative remedy as an additional ground to support judgment in

their responsive brief, even thought argument was not raised below).

Eight Circuit: Benson v. Armontrout, 767 F2d 454, 455 (8th Cir.

1985)(appellee must cross-appeal to argue that the court should have ruled on the

merits and dismissal habeas corpus claim with prejudice where the court denied

relief without prejudice

Ninth Circuit: Engleson v. Burlington No. RR Co., 972 F2d 1038, 10411042 (9th Cir. 1992) (appellee may properly advance jurisdictional argument, even

if rejected below, without cross-appeal because it was not seeking any relief greater

than a dismissal).

B. The second conflict is the inconsistent application of subjectmatter jurisdiction exception to cross appeals

On the other hand, when it comes to subject-matter jurisdiction, “it

establishes —or fails to establish—our authority to decide a case, triggering an

unflagging duty to make sure we [the court] has it. Hamer v. Neighborhood

Housing Servs. of Chicago, 138 S.Ct. 13,17 (2017).

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Nor can the parties look the other way. They cannot forfeit or waive subjectmatter jurisdiction. Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434435 (2011). See also, Gunter v. Beavis, 906 F3d 484, 493 (6th Cir. 2016).

In Kontrick v. Ryan, 540 U.S. 443,456 (2004), the Court further stated that

FRCP 82 states that the federal rules may not limit or expand the lower federal

court’s jurisdiction [only Congress can]. 540 U.S. at 455-56. Distinguishing

Engleson plaintiffs’ reliance on Raus v. Brotherhood ofRy Carmen, 663 F2d 791

(8th Cir. 1981)—that Engleson does not involve a challenge to the dismissal of the

complaint. The Ninth Circuit stated that the issue in Engleson is whether an

attorney’s mistake in pleading the incorrect jurisdictional stattue justifies relief

provided by Rule 60(b). However, the Ninth Circuit court in this case did not

consider Rule 82—that the rules—Rule 60(b) cannot limit or expand the

jurisdiction of the United States district courts. Therefore, even if Petitioner Pro Se

cannot get relief from judgment to get §1985(2),(3) claims heard under Rule

60(b)(1)—if her mistake in untimely raising her claim it in a late hearing petition

or hearing en banc petition is not cogzniable under Rule 60(b)(1), then it may come

in as Rule 60(b)(6) ground for relief under the will of Congress because unlike the

union’s claim in Engleson, Petitioner Pro se’s civil rights claim is jurisdictional

under 28 U.S.C. §§ 1343(c)(1) and (3). See, Steel Co. v. Citizens for a Better Envir,,

523 U.S. 83, 94-95 (1988); Lynch v. Household Finance Corp., 405 U.S. 538. 549 n.

16 (1972); Douglas v. City of Jeanette, 319 U.S. 157, 161 (1943); see also, Hamer,

138 S.Ct. at 17.

sakuma._aoaotropics@waikele_61024

B. The Rooker-Feldman Doctrine Is Jurisdictional

The Rooker-Feldman doctrine arises out of a pair of negative inferences from

two statutes 28 U.S.C. §§1257 and 1331. The statute 28 U.S.C. §1257 states that

only the Supreme Court of the United States has original jurisdiction over final

state court orders and judgments. The statute 28 U.S.C. 1331 provides that the

lower federal courts have jurisdiction over federal questions. Exxon-Mobil, Inc. v.

Basic Saudi Industries, Inc., 544 U.S; 280, 283 & n.8 (2005). The doctrine takes its

name from the only two cases this Court has ever applied the doctrine: (1) Rooker

v. Fidelity Trust Co., 263 U.S. 413, 414, 417-418 (1923)(dismissing a suit for lack of

subject-matter jurisdiction where Rooker was seeking review of an adverse state

judgment alleging it violated the U.S. Constitution; (2) Feldman v. District of

Columbia Court of Appeals, 460 U.S. 462, 479-482 (1983), applying 28 U.S.C. §1257

to bar review of state judgment of bar applicant’s application to be admitted to the

D C. legal bar association, but allowing review of the state statutory provisions

barring non-accredited law school applicant’s to the D.C. legal bar association. Id.

The Civil Rights statutes 42 U.S.C. §1985(2),(3) are jurisdictional.

Lynch v. Household Finance Corp., 405 U.S. 538, 543 & n.7 (1972) cited

Douglas v. City of Jeanette, 319 U.S. 157,161 (1943) as authority to hold that a

§ 1983 claim is jurisdictional by virtue of its special jurisdictional section 28 U.S.C.

§ 1343(a)(3): “despite the different wording of the substantive and jurisdictional

provisions, when the 1983 claim alleges constitutional violations, 28 U.S.C.

sakum.a_aoaotropics@waikele_61024

Sixth Circuit: Ogden v. Dept. ofTransp., 430 F2d 417, 419 (6th Cir. 1970),

exhaustion doctrine applied to dismiss the four wrongful discharge complaints of

air-traffic controllers who participated in a two-day strike because of little

likelihood of success on the merits.

Seventh Circuit: Champagne v. Scblesinger, 506 F2d 979, 982 (7th Cir.

1974) stating “we do not accept plaintiffs contention that defendants’ failure to

take a cross-appeal precludes them from arguing exhaustion on appeal. The parties

have briefed the exhaustion issue both here and below, so we have the benefit of

their arguments.”

Ninth Circuit: Correa v. Taylor, 563 F2d 396, 399 (9th Cir. 1977) finding it

appropriate to sua sponte raise the threshold jurisdictional or quasi-jurisdiction

question of exhaustion must be considered first.

C. This case is an ideal vehicle to resolve the conflicts

This case is a good vehicle for resolving these circuit conflicts. On the cross

appeal conflict, Petitioner Pro Se’s case where the the district court applied the

device of alternative holdings, one jurisdictional based on Rooker-Feldman and the

other on the RICO merits. On the jurisdictional conflict, adding a new RookerFeldman exception as another bright-line test, and reconsideration of the Ninth

Circuit s policy to apply waiver on appeal automatically if new arguments and case

citations are presented in appellant’s reply brief in response to appellee’s

responsive briefs.

sakunm_aoaotropics@waikele_61024

This case also contrasts Arkansas State Conference NAACP v. Arkansas Bd.

of Apportionment, 91 F4th 967 (8th Cir. 2024), which recently was granted an

extension to file its petition for writ of certiorari until June 28, 2024. See, S.Ct.No.

23A929, infra. In Arkansas Bd. Of Apportionment, the appellee-respondent was

seeking a judgment on the merits (with prejudice), but the district court only

entered judgment for lack of jurisdiction—without prejudice—i.e., the district court

did not apply the device of alternative holdings. Apparently, to achieve the effect of

an alternative holding, the Eight Circuit applied the forfeiture /waiver rules of the

mandatory claims processing time limit because no one objected, see infra. The

Court should accept that petition for review—it looks like a nail-biting ending.

V. Conclusion

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Da±e:cS\AAA4^' 10

j 2024

sakuma_aoaotropics@waikele_61024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.