Petition for Writ of Certiorari — Ammar A. Idlibi, Petitioner v. Mary-Margret D. Burgdorff, Judge, Middlesex Judicial District, et al.

No.

In the Supreme Court of the Anited States

AMMAR A. IDLIBI,

Petitioner,

v.

MARY-MARGRET D. BURGDORFF,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Ammar Idlibi

Petitioner

33 Maggie Court

Terryville, CT 06786

860-543-5400

aidlibi@yahoo.com

RECEIVED

SEP -9 2024

OFFICE OF THE

SUPREME Gout

QUESTION PRESENTED

The Petitioner filed a federal discrimination

lawsuit against the Respondent judge claiming that

the Respondent judge fraudulently ruled on

irrelevant and fabricated matters to terminate the

Petitioners parental rights without making a

finding of parental unfitness. And did so out of

racial and religious animus, and for the sole

purpose of converting the children to Christianity.

The suit was dismissed on the doctrines of Judicial

Immunity, Rooker-Feldman, and the Eleventh

Amendment Immunity.

The question presented is:

Whether there should be constitutional

exceptions to the immunities that shield judges

from discrimination claims in the administration of

justice.

PARTIES TO THE PROCEEDING

The Petitioner Ammar Idlibi (plaintiffappellant below) is a member of the Muslim faith

from Middle Eastern descent.

Respondent is Mary-Margaret D. Burgdorff

(defendant-appellee below) a white Connecticut

state judge who terminated the Petitioner's

parental rights.

iii

STATEMENT OF RELATED

PROCEEDINGS

Idhbi v. Burgdortf,

3:22-cv-902 (JAM) (D. Conn. Apr. 24, 2023).

Idlibi v. New Britain Judicial Dist.,

3:22-cv-1374 (JAM) (D. Conn. Sep. 25, 2023)

Idlibi v. Burgdorft,

No. 23-838 (2d Cir. June 27, 2024)

TABLE OF CONTENTS

QUESTION PRESENTED.............c.ceceeeeeceeeeeeees 1

PARTIES TO THE PROCEEDING................066 nt

STATEMENT OF RELATED PROCEEDINGS....iii

TABLE OF AUTHORITIEG.......c0csscscsscsseseecsecss V1

PETITION FOR A WRIT OF CERTIORARI......... 1

OPINIONS BELO Wgasssssissinsansesiscess sennssisnamannwenvens 1

SPAS CATION a caeseeasaresrntccsrceateaitenc nascar ganarsienranareteatente 1

CONSTITUTIONAL PROVISION INVOLVED....1

INTRODUCTION AND SUMMARY OF REASONS

TO GRANT THE PETITION................:eceeeeeeeeeens 2

STATEMENT OF THE CASE. ............cccceeeeeeeees 5

I. Factual Background................cccccceeeeeeeeees 5

II. The Second Circuit’s Decision.................06:. 9

REASONS FOR GRANTING THE PETITION....10

1- Establishing Constitutional Provisions to Protect

Citizens’ Right to be Free from Judicial

Discrimination Presents an Unsettled Question of

National Importance.............ccccececeseeeeuseeneeenes 10

III-

2- Establishing Constitutional Exceptions to

Judicial Immunities in Discrimination Claims

Against Judges Merits this Court’s

REVICW.....ccccecscceccessceseeesceeeaesneteeseeesaseeseueensess 10

3- Certiorari is Warranted to Establish when

‘Judicial Acts’ Becomes Non-Judicial

Discriminatory ACtS.......ccccccsccsecseseeeeseeseneeeees 13

4- The Second Circuit’s Decision Undermines

This Court’s Precedent on Pleading

Discrimination. ............:.scecee +++ -« deeaeieidesaesesounes 17

5- Certiorari is Warranted to Harmonize

Conflicting Decisions in Circuit Courts............. 19

This Case Presents an Excellent Vehicle to Address

This Urgent Question of Constitutional Law....... 24

CONCLUSION. ..... .ccsenacseaesconmismsaccsepaccemesieneyes 24

APPENDIX

Appendix A— Summary Order, United States Court

of Appeals for the Second Circuit, filed June 27,

Appendix B - Order, United States District Court,

D. Connecticut, filed April 24,

Appendix C - First Amended Complaint filed

September 1, 2022.........cccccccceceeseecseeeeeeeneenees 26a

vi

TABLE OF AUTHORITIES

Cases

Abbott v. Michigan,

A7A F.3d 324, 330 (6th Cir. 2007)...........8. 19

Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 222 (1995) ssssssssiassoesasweenis 17

Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)..........0.c0000e- 3, 8,18

Bell Atl Corp. v. Twombly,

550 U.S. 544, 570 (2007)... ...ccseessseseeeeeeeeees 3

Behr v. Campbell,

8 F.4th 1213 (11th Cir. 2021)... ee. 20

Benavidez v. County of San Diego,

993 F.3d 1134, 1148 (9th Cir. 2021).......... 20

Brewer v. Bd. of Trs. of Univ. of Ill,

A79 F.3d 908, 921 (7th Cir. 2007)............. 23

Conley v. Gibson,

355 U.S. 41, 47 (1957)... cececeecseesseneeeeee 18

District of Columbia Court of Appeals v. Feldman,

460 U.S. 462, 482 (1983)........cccccsceeeeeeeeeees 2

David v. Kaulukukut,

38 F.4th 792 (9th Cir. 2022)... 21

Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 284 (2005)............ 3, 19, 21, 22

vii

Forrester v. White,

A484 U.S. 219 (1988).....c cee cesceeceseee sence 13, 14

Gantt v. City of Los Angeles,

717 F.3d 702, 707 (9th Cir. 2013)............. 22

Gross v. Rell,

SC 18548, at *23 (Conn. Apr. 3, 2012)......... 7

Kougasian v. TMSL, Inc.,

359 F.3d 1136, 1140-41 (9th Cir. 2004)......20

Junhao Su v. E. Ill. Univ.,

565 F. App'x 521-22 (7th Cir. 2014)........... 23

Kass-Hout v. Cmty. Care Network,

2:20-CV-441-JPK (N.D. Ind. Aug. 20,

Lance v. Dennis,

546 U.S. 459, 464 (2006)..........cc ccc eee eee ees 19

Lehman v. Lycoming County Children’s Services,

458 U.S. 502, 507 (1982)...... cc eseeeeeeeeteeeeees 11

Liteky v. United States,

510 U.S. 540, 555 (1994)... eeeecceeeneeeees 10

Luevano v. WalMart Stores, Inc.,

722 F.3d 1014, 1028 (7th Cir. 2013).......... 22

McCormick v. Braverman,

451 F.3d 382, 392 (6th Cir. 2006)............ 21

viii

Miller v. Johnson,

515 U.S. 900 (1995)........cccccceeccceecececeeees 17

Mireles v. Waco,

502 U.S. 9 (1991)... cc ceccseeeeeeeee8, 7, 14, 15

McReynolds v. Merrill Lynch & Co.,

694 F.3d 873 (7th Cir. 2012).........ccceeeeeees 23

Pena-Rodriguez v. Colorado,

137 S. Ct. 855 (2017)... ccccecceeccseeeeeeeeees 12

Rose v. Mitchell,

443 U.S. 545, 555-56 (1979)... eceeee eee eees 10

Rooker v. Fidelity Trust Co.,

263 U.S. 413, 414-15 (1923)... cecceceeeeseeees 2

Resendez v. Prance,

No. 3:16-cv-862 JD (N.D. Ind. Mar. 29,

Rosas v. Bd. of Educ. of Cht.,

No. 19-cev-2778 (N.D. Ill. May 17, 2021)....23

Stump v. Sparkman,

A435 U.S. 349 (1978)... ..ccce cee eeeececeee eee 7, 15,16

Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 511 (2002)............ 8, 17, 18, 22

Smith v. City of Fontana,

818 F.2d 1411 (9th Cir. 1987).........ccc0c0ee: 21

Students and Parents for Privacy

v. Sch. Dirs. of Twp. High Sch. Dist.

211, 377 F. Supp. 3d 891 (N.D. IIL. 2019)....22

Tanner v. United States,

A83 U.S. 107 (1987) .......ccseeceeesseeennaeeenees 12

Tal v. Hogan,

453 F.3d 1244, 1256 (10th Cir. 2006)........ 20

Truong v. Bank of Am., N.A.,

717 F.3d 377, 382 (5th Cir. 2013)............. 20

Wilkinson v. Torres,

610 F.3d 546, 554 (9th Cir. 2010)..........4.. 22

U.S. Constitution

U.S. Const. amend. XIV, § 1 ........ceeeeeeeeeeeeeee 1

U.S. Const. amend. V...........ccceeeeeeeeeeeeeeeeeeeeeeeenenes 10

U.S. Const. amend. V1 sissasicsssssssscassisssicenccsreanaccnamein 10

Statute

28 U.S.C. §1 2541)... cee ceccceseceeceeeceeecsesssestsseseeeeed

25 U.S. Code §1912(f)......cccccceeceeeeseccesseees 2,4, 13,18

28 U.S. C. § 2254 (a)... cecccccccecececceecceesseuescseeeueeees 19

Conn. Gen. Stat. § 17a-112()(3)(B) Gi)... eee 6

Conn. Gen. Stat. § 17a-112 (k) (7)... ccc cccecceeeeeeeeeees 8

Rule

Rule of Civil Procedure GO6(b)..........scecececececceues 12

Rule of Civil Procedure 9(b).........cceccscesesseeese 17,18

Rule of Civil Procedure 8(a)(2)........ccccecesececeeeeee 17

1

PETITION FOR A WRIT OF CERTIORARI

Petition for a writ of certiorari to

review the judgment of the United States

Court of Appeals for the Second Circuit on

dismissing the Petitioner’s discrimination

suit against the Respondent judge.

OPINIONS BELOW

The United States Court of Appeals for

the Second Circuit affirming the District

Court’s dismissal is reported at J/dlibi v.

Burgdorff, No. 23-838 (2d Cir. June 27, 2024)

and reprinted at App. la- 11a.

The District Court for the district the

of Connecticut dismissing the federal

discrimination action against the Respondent

Judge is reported at /dlibi v. Burgdorff, 3:22-

cv-902 (JAM) (D. Conn. Apr. 24, 2023) and

reprinted at App. 12a-26a.

The First Amended Complaint filed in

District Court is reprinted at App. 26a—61a.

JURISDICTION

The final decision of the Second Circuit

sought to be reviewed was issued on June 27,

2024. App. la.

This petition is timely filed within 90

days. This Court has jurisdiction under 28

U.S.C. §1254(1).

CONSTITUTIONAL PROVISION

INVOLVED

The Fourteenth Amendment to the

U.S. Constitution provides, in relevant part,

that no State shall “deny to any person

within its jurisdiction the equal protection of

the laws.” U.S. Const. amend. XIV, § 1.

INTRODUCTION AND SUMMARY OF

REASONS TO GRANT THE PETITION

What gave rise to this case is the

undisputed claim that the Respondent judge

has intentionally violated 25 U.S. Code

§1912(f)! and has fraudulently ruled on

irrelevant matters that were never submitted

to the judge’s determination nor to the

expectations of the parties. Accordingly,

terminating the Petitioner’s parental rights

without evidence of parental unfitness and

for the sole purpose of converting his children

to Christianity. In her Memorandum of

Decision, the Respondent judge expresses her

class-based animus against the Petitioner by

relying on a false accusation that Petitioner

considers Christianity a “poison.” App. 40a.

The case was dismissed by the District

Court, and the United States Court of

Appeals for the Second Circuit affirmed in

Summary Order.

Requiring a very heightened pleading

standard and applying the Rooker-Feldman

doctrine? broadly, the United States Court of

Appeals for the Second Circuit has held that

even if a judge engages in all the above

pleaded conduct, intentionally breaks a

federal law of such a grave constitutional

magnitude, and acts fraudulently, the judge

should be immune from a discrimination suit

because fraud, breaking the law in this

1 §1912(f) provides that “[nlo termination of parental

rights may be ordered in such proceeding in the

absence of a determination, supported by evidence

beyond a reasonable doubt, . . . that the continued

custody of the child by the parent or Indian custodian

is likely to result in serious emotional or physical

damage to the child.”

2 Rooker v. Fidelity Trust Co., 263 U.S. 418, 414-15

(1923), and District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 482 (1983).

3

manner and ruling on irrelevant matters not

to the expectation of the parties against a

member of a protected class, remain ‘Judicial

acts’ and a part of decision “in relation to the

particular case” before the judge. App. Ya.

The Circuits are split on invoking

federal Courts’ jurisdiction over claims of

fraud in judicial proceedings. Yet, none of the

Circuits addresses a fraud claim committed

by the judge. Other Circuits interpret this

Court’s narrowing of the Rooker-Feldman

doctrine in Exxon Mobil differently.

Although this Court has established the

legal standard for pleading discrimination in

general (Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007) and Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)), there is no established

legal standard for pleading discrimination

against a judge specifically.

Although this Court has addressed

judicial immunity in Mireles v. Waco, 502

U.S. 9, 12 (1991), there is no precedential

holding on whether the immunity extends to

judges who engage in fraud, intentionally

violate federal law to discriminate against a

member of a protected class and violate his

constitutional rights.

The Second Circuit’s ruling merits this

Court’s review because it presents a question

of national importance that the Court has yet

to answer directly.

The Petitioner raised his children in

the Muslim faith. The children were taken

from their mothers care during divorce

proceedings and were placed the care of a

Christian female couple because the mother

fabricated a bloody crime scene of assault.

After spending over three years in temporary

foster placement due to intentional and

procedural delays by the state, the children

expressed their desire to convert to

4

Christianity and get adopted by the Christian

foster mothers. Accordingly, the children’s

assigned attorneys filed petitions for

Termination of Parental Rights (“TPR”)

against the advice of the arbitrator judge

(Judge Barbra Quinn) who advised the

children’s attorneys during status conference

that they do not have basis to petition for

TPR. Nevertheless, the children’s attorneys

proceeded with their termination petitions to

advocate for their clients wishes who desired

to convert to Christianity.

The Respondent judge who presided on

the TPR trial was aware that the sole

purpose of the children’s filing of the TPR

petitions was to convert to Christianity. The

Respondent judge granted the TPR petitions

and terminated the Petitioner’s parental

rights without identifying evidence of

parental unfitness in violation of 25 US.

Code § 1912(f). In addition to several other

issues that were never before the judge nor to

the expectations of the parties, the

Respondent judge ruled that the Petitioner

has assaulted the mother; a false claim

previously dismissed by the family court as

untruthful and dismissed by the criminal

court with prejudice. The Respondent judge

further fabricated (nonexistent) evidence,

which even if true, would not be sufficient to

demonstrate parental unfitness nor justify

termination of parental rights. The fabricated

evidence pertains to irrelevant matters never

submitted for the judge’s determination nor

to the expectation of the parties but used as a

pretext to terminate the Petitioner’s parental

rights.

The Petitioner filed his discrimination

lawsuit against the Respondent judge in the

District Court for the district of Connecticut.

In his First Amended Complaint, the

5

Petitioner claims that the Respondent judge

discriminated against him due to his religion

and unlawfully terminated his parental right

for the sole purpose of converting the children

to Christianity. The district Court dismissed

the action, and the Second Circuit affirmed.

In its affirmation of the District

Court’s dismissal, the Second Circuit held

that even if the judge has violated federal law

and engaged in acts of commission and

omission, the Petitioner’s discrimination

claims are barred under the combination of

three immunities: the Rooker-Feldman

doctrine, the Eleventh Amendment Immunity

and the Absolute Judicial Immunity.

There is a conflict between Circuit

Courts on applying the Rooker-Feldman

doctrine in cases claiming fraud in general.

There are inconsistencies between the Circuit

Courts on the level of pleading standard for

claims of discrimination and fraud.

There is no precedent that establishes

discrimination pleading standard against a

judge.

STATEMENT OF THE CASE

I- Factual Background

The Petitioner is a practicing member

of the Muslim faith from Middle Eastern

descent. Along with his wife, they raised their

three children until the ages of 5, 6 and 7 in

the Muslim faith. After 10 years of marriage,

the mother of the children started an

extramarital affair and filed for divorce.

As the divorce case seemed to be

moving in the Petitioner’s favor, the mother

of the children fabricated a bloody crime

scene of assault and called 911 claiming that

the Petitioner was actively assaulting her.

Subsequently, the Department of Children

6

and Families in the State of Connecticut

(“DCF”) filed neglect petitions against the

parents and placed the children in a

Christian household comprised of two female

partners who are devout Christians.

After spending around three years in

temporary foster placement despite a

plethora of motions and other filings by the

Petitioner to return the children to his

custody, the Superior Court for Juvenile

Matters in Connecticut (Judge Jason Lobo)

made the disturbing finding that the children

have developed unfounded fears of their

religion and of their father (Petitioner) and

ordered therapy to resolve those

“misunderstandings” prior to reunification,

which the Court ordered to proceed as soon as

possible. This did not stop the children

through their counsels, to file petitions for

Termination of Parental rights (“TPR”) for

the sole purpose of converting to Christianity.

The children’s’ attorneys did so under the

only Connecticut statute that allows TPR for

non-consenting parents, which is ‘failure to

rehabilitate. Conn. Gen. Stat. § 17a-

112G)(8)(B)Gi). The petitions do not identify

any condition that the Petitioner was

supposed to rehabilitate from, other than

being a Muslim.

The Respondent judge terminated the

Petitioner parental rights on the basis of

‘failure to rehabilitate’ without identifying

any condition that the Petitioner was

supposed to rehabilitate from, nor making a

finding that the Petitioner is an unfit parent

to safely care for his children. The

Respondent judge did not shy away from

explicitly expressing her racial and religious

animus by including in her Memorandum of

Decision that she relied, in part, on a false

accusation that the Petitioner considers

7

Christianity a “poison.”

The Petitioner filed two discrimination

lawsuits with the District Court against the

Respondent judge who unlawfully terminated

his parental rights, and against the judicial

district who refused to accept the Petitioner’s

filing for a new trial. The Petitioner claims

that the Respondent judge terminated his

parental rights solely due to his religious

affiliation and to pave the way for the

children’s conversion to Christianity.

The Petitioner pleads that the

Respondent judge unable to identify any

evidence of parental unfitness and unable to

find anything related to the issue that is

submitted for her determination, resorted to

ruling on irrelevant issues that were never

submitted for her determination, nor to the

expectations of the parties.

Under Connecticut law, a judge acts in

clear absence of all jurisdiction when the

judge makes factual findings on matters that

were not before the judge, nor were necessary

steps in the direction of the final

determination of the entire matter before the

judge. Gross v. Rell, SC 18548, at *23 (Conn.

Apr. 3, 2012).

Under federal law, a judge acts in clear

absence of all jurisdiction, when the judge’s

actions constitute functions that are not

normally performed by a judge, and not to the

expectations of the parties. Mireles v. Waco,

502 US. 9 (1991) (quoting Stump v.

Sparkman, 435 U.S. 349, 362,98 S. Ct.

1099, 55 L.Ed.2d 331 (1978)).

The Respondent judge ruled that the

Petitioner has assaulted the mother,

although the fabricated assault was never an

issue that was submitted for the judge’s

determination. Moreover, the fabricated

assault, has been previously dismissed by the

8

criminal court and the mother was found to

be untruthful in her accusation of assault in

the family court proceedings.

The Petitioners First Amended

Complaint alleges that the Respondent relied

on false evidence that she herself has

fabricated to terminate the Petitioner’s

parental rights. The fabricated evidence, even

if true, does not justify the termination of

parental rights. The Amended Complaint also

alleges that the Respondent judge

intentionally suppressed the only evidence

that would have precluded TPR under

Connecticut law. App. a53.

The District Court granted the

Respondent's motion to Dismiss and

concluded that the discrimination action is

barred under a combination of three

immunities: the FRooker-Feldman doctrine,

the Eleventh Amendment Immunity and the

Absolute Judicial Immunity.

The Petitioner followed with an appeal

to the United States Court of Appeals for the

Second Circuit. The Petitioner argued that

the simple pleaded and undisputed fact that

the Respondent judge had terminated the

Petitioner’s parental rights without evidence

of parental unfitness should be sufficient to

“nudge a discrimination claim across the line

from conceivable to plausible to proceed” as

this Court has held in Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 510 (2002) and

Ashcrott v. Iqbal, 556 U.S. 662, 680 (2009).

However, this pleading standard was not

enough for the District Court nor for the

3 The Respondent judge prevented the children’s

therapist from testifying on whether the children have

received the court-ordered therapy addressing their

unfounded fears of their religion, which prompted

their filing of the TPR petitions. If the therapist was

allowed to testify, TPR would have been precluded

under Conn. Gen. Stat. § 17a-112 (k) (7).

9

Second Circuit to overcome the high bar of

the three combined immunities, certainly not

sufficient to ‘nudge’ anything across the line

from conceivable to plausible.

The Second Circuit affirmed the

dismissal of the discrimination complaint in

Summary Order.

II-The Second Circuit's Decision

The Second Circuit has held in this

case that before a meritorious discrimination

suit against a judge could invoke jurisdiction,

it hits the hurdles of combined immunities

and becomes subject to dismissal regardless

of the pleading standard and even if the

discrimination claim against the judge meets

the constitutional exceptions established by

this Court separately, and even if the judge

has violated federal law in rendering

judgement.

First, the Second Circuit held that the

Rooker-Feldman doctrine applies to “cases

brought by state-court losers complaining of

injuries caused by state-court judgments

rendered before the district court proceedings

commenced and inviting district court review

and rejection of those judgments. App. 6a.

Therefore, the case is barred even if the judge

is alleged to have acted unlawfully and

fraudulently.

Second, Eleventh Amendment

immunity extends to “state agents and state

instrumentalities’ that are, effectively, arms

of a state.” App. 7a. And the #x parte Young

exception does not apply, although plaintiff

requested prospective relief to compel state

court to accept his petition for a new trial,

because this is considered “seeking a

declaration or an injunction based solely on

past violations of federal law.” App. 8a.

Third, judicial immunity _ protects

10

judges’ “conduct in making factual findings”

even if such findings were both fraudulently

fabricated by the judge and irrelevant to the

issue submitted for determination and were

not to the expectations of the parties, because

they are ‘judicial in nature and function.’

Finally, the second Circuit relies on

this Court’s ruling in Liteky v. United States,

510 U.S. 540, 555 (1994) to dismiss the

Petitioner’s discrimination suit claim because

the plaintiff complains about an “adverse

ruling’. App. 10a.

REASONS FOR GRANTING THE

PETITION

Kstablishing Constitutional Provisions

to Protect Citizens’ Right to be Free

from Judicial Discrimination Presents

an Unsettled Question of National

Importance

Although this Court has established

provisions to protect a defendant's right to be

free from racial discrimination in grand jury

selection, no such provisions exist to protect a

citizen’s right (in this case a parent’s right),

to be free from racial discrimination in

parental rights proceedings or any other form

of judicial discrimination in non-jury trials.

Racial discrimination in the selection of

grand jurors "strikes at the fundamental

values of our judicial system and our society

as a whole," and is "especially pernicious in

the administration of justice." Rose v.

Mitchell, 443 U.S. 545, 555-56 (1979). Three

separate constitutional provisions serve to

protect a defendant's right that grand jury

selection be free from racial discrimination:

the Equal Protection and Due Process

Clauses of the Fifth Amendment and the

Sixth Amendment right to be tried by an

11

impartial jury drawn from sources reflecting

a fair cross-section of the community. The

Petitioner may show that an equal protection

violation has occurred in the context of grand

jury selection, Mitchell, 443 U.S. at 565. If a

claim meets the four parts test for an equal

protection violation, the petitioner establishes

a prima facie case, the burden shifts to the

government to rebut the prima facie case.

Mitchell, 443 U.S. at 565.

No such provisions exist to protect a

citizen’s rights in non-jury trials, such as a

parent, from the wrongful and discriminatory

termination of parental rights by a judge

where “[t]he total extinction of a familial

relationship between children and_ their

biological parents is the most drastic measure

that a state can impose, short of criminal

sanctions.” Lehman vy. Lycoming County

Children's Services, 458 U.S. 502, 507 n.6

(1982).

Establishing Constitutional Exceptions

to Judicial Immunities in

Discrimination Claims Against Judges

Merits this Court’s Review

Although this Court has established an

exception to challenging the finality of jury

verdicts in cases of discrimination, no such

exception exists to challenging the finality of

a judge’s order rendered on discriminatory

basis.

Judicial immunities are designed in a

way that enable racist judges to evade all

racial prejudice safeguards in the

administration of justice.

It is next to impossible to challenge the

‘finality of a judge’s ruling or to claim

discrimination against a judge after

rendering judgment no matter how egregious

the judges’ discriminatory conduct might be.

12

Before any chance to invoke jurisdiction, any

claim of discrimination against a judge hits

the three combined immunities: the Rooker-

Feldman doctrine, the Eleventh Amendment

Immunity and the Absolute Judicial

Immunity.

There is a dire need for a constitutional

exception to the immunities that shield racist

judges and their final decisions from

discrimination claims in the same way this

Court has established in case of jury

discrimination in /Pena-Rodriguez _ v.

Colorado, 137 S. Ct. 855 (2017).

Reversing the Colorado courts, this

Court held that the juror's racial bias was the

rare kind that let a court examine the

verdict. Pena-Rodriguez v. Colorado, 137 S.

Ct. 855 (2017). As Justice Kennedy wrote for

the majority, racial bias is "a familiar and

recurring evil that, if left unaddressed, would

risk systemic injury to the administration of

justice," and it had shown an unparalleled

ability to evade’ the 7anner safeguards

established in Tanner v. United States, 488

U.S. 107,107 S. Ct. 2739,97 L.Ed.2d

90 (1987). Thus, to obey the Fourteenth

Amendment's "imperative to purge racial

prejudice from the administration of justice,"

this Court declared that "[i]t must become the

heritage of our Nation to rise above racial

classifications that are so inconsistent with

our commitment to the equal dignity of all

persons." /d. at 221, 1387 S. Ct. 855. Given the

uniquely insidious threat racial bias posed to

the fairness of the jury system, this Court

reasoned that the time had come for a

constitutional exception to Rule 606(b). Peria-

Rodriguez, 580 U.S. at 225, 1387S. Ct. 855.

The exception established by this

Court is that the finality of jury verdict can

be challenged if a juror makes a clear

13

statement that indicates he or she relied on

racial stereotypes or animus to convict a

criminal defendant. Jd at 1387S. Ct. 855.

In this case, the Respondent judge

entered in her Memorandum of a Decision

that she relied on an alleged statement by the

Petitioner that he considers Christianity “a

poison” - a false statement that the Petitioner

denies he ever made. Nonetheless, the judge

has demonstrated disparate treatment

against the Petitioner and terminated the

Petitioner's parental rights accordingly

without evidence of parental unfitness in

violation of §1912(f).

Certiorari is Warranted to Establish when

‘Judicial Acts’ Becomes Non-Judicial

Discriminatory Acts

Even though this Court has held that

judges are subject to discrimination suits,

because discriminatory acts are not judicial

acts.See Forrester v. White,484 U.S.

219 (1988), there is no precedential holding

on when a judge conduct becomes a

nonjudicial discriminatory act in_ the

administration of justice. In Forrester, this

Court’s holding was limited to when the judge

acts in his administrative capacity as an

employer, but no such holding exists as to

when the judge acts in his judicial capacity as

a judge yet acts discriminatorily.

Discrimination in the administration of

justice is uniquely abhorrent and requires a

uniquely tailored legal standard.

If we were to combine this Court’s

holdings on what determines an actionable

non-judicial act and this Court’s holding on

how to plead discrimination. The two should

render a hypothetical legal standard that

permits a discrimination claim against a

judge. Although both were clearly met in this

14

case, the case is still subject to dismissal as

the Second Circuit held. The reason for

barring this discrimination suit was the fact

that three doctrines were combined to act as

an iron clad shield: all due to the absence of a

legal standard to plead _ discrimination

against judges.

First, this Court has recognized, the

doctrine of judicial immunity will, on

occasion, deny a litigant any remedy for

allegedly unconstitutional conduct on the

part of a judge. See, e.g., Mireles v. Waco, 502

U.S. 9 (1991). The fact the doctrine of judicial

immunity produces a harsh outcome in

certain cases does not mean the doctrine is

unjust. In assessing the doctrine, at least two

interests must be balanced. On the one hand,

it is important to provide redress for

constitutional violations. On the other hand,

it is important to maintain an independent

judiciary. This Court has weighed the

competing interests and concluded justice is

best served by granting immunity to judges

subject to the two exceptions. /d. at 9, 112 S.

Ct. 286.

The applicability of the first exception

turns upon the nature of the acts of which the

plaintiff complains. Were they "judicial" in

nature? "[W]hether an act by a judge is a

‘judicial’ one relatels] to the nature of the act

itself, 2e., whether it is a function normally

performed by a judge, and to the expectations

of the parties, 1.e., whether they dealt with

the judge in his judicial capacity.” Mireles

502 U.S. at 12, 112 S.Ct. 286 (quoting Stump

v. Sparkman, 435 U.S. 349, 362,98 S.Ct.

1099, 55 L.Ed.2d 331 (1978)). There is no

question that intentional discrimination is a

not judicial in nature as his Court has held in

Forrester.

In this case, the judge’s ruling on the

15

fabricated assault and on other irrelevant

issues that were never before the judge

including issues that the judge has herself

had fabricated, are neither functions that are

normally performed by a judge, nor to the

expectations of the parties. Yet, such

pleadings are not sufficient to invoke

jurisdiction in a discrimination claim, nor to

overcome the Aooker-Feldman doctrine, not

even to plead a prima facie case of

discrimination to survive a motion to dismiss

according to the Second Circuit. The Second

Circuit reasoned its holding because all those

acts were judicial in nature because they are

part of “a decision in relation to a particular

case.” App. 9a.

The applicability of the second exception

turns upon the existence of jurisdiction.

In Stump v. Sparkman, 435 U.S. 349, 356-

57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), this

Court explained the term "jurisdiction" is

construed broadly in this context:

A judge will not be deprived of immunity

because the action he took was in error, was

done maliciously, or was in excess of his

authority; rather, he will be subject to

liability only when he has acted in the clear

absence of all jurisdiction.

The question of whether a judge acted in

excess of her authority in making a judicial

ruling is a distinct issue from the question of

whether a judge acted in the clear absence of

jurisdiction. Even if a judge exceeds her

authority in making a judicial ruling in a

particular case, that judge is immune if the

case is properly before the court. Mireles

v. Waco, 502 U.S. 9, 18 (1991).

In reviewing an allegation that a judge

acted in the clear absence of all jurisdiction,

the Court considers whether the judge was

acting beyond the scope of the subject matter

16

jurisdiction of the court. See Sparkman, 435

U.S. at 356-57.

The irrelevant fabricated assault should

be beyond the scope of the subject matter of

terminating parental rights, but the Second

Circuit held otherwise. There is no precedent

addressing when the judge bases her ruling

on irrelevant factual findings fraudulently

procured by the judge herself and in violation

of federal law, let alone when such acts are

sufficient to plead judicial discrimination.

The judge’s unfounded ruling against a

member of protected class, her acts of fraud

and omission along with violating federal law

as argued supra are not sufficient to plead

discrimination against a judge per the Second

Circuit. The Second Circuit may have

reasoned its holding that the judge’s ruling

and the Petitioner's claims are so

intrinsically intertwined that the line

between an actionable claim of discrimination

against the judge and the judge’s ‘judicial

acts’ is too blurred to establish a prima facie

case of discrimination? Certiorari is

warranted to clarify the distinction.

The absence of a legal standard and the

relative vagueness in construing this Court’s

holding in Stump on what constitutes an act

that is ‘to the expectation of the parties’, will

continue to embolden racist judges to

discriminate with impunity as_ the

Respondent judge did in this case. Any other

judge could fraudulently rule against any

member of a protected class using either

fabricated evidence or ruling on irrelevant

matters never to the expectations of the

parties yet remains immune because her

ruling was performed in her judicial capacity

and considered to be related to the subject

matter before her.

In view of these authorities, Certiorari

17

should be granted to hold that imposition of §

1983 should be justified in cases like this.

The Second Circuit's Decision Undermines

This Court’s Precedent on Pleading

Discrimination

Although this Court has not yet

addressed the question of intentional judicial

discrimination, the Second Circuit’s decision

undermines bedrock equal protection

principles that this Court has repeatedly

emphasized. It is long settled that the Equal

Protection Clause protects an individual right

to be free from racial discrimination, see

Miller v. Johnson, 515 U.S. 911 (1995); that it

protects individuals of all races equally, see

Adarand Constructors, Inc. v. Pena, 515 U.S.

200, 222 (19985).

According to the Second Circuit, even a

heightened pleading standard in a

discrimination claim brought under Title VI

is not sufficient to overcome the judicial

immunity and the Rooker-Feldman doctrine.

Although this Court has rejected a

heightened pleading standard for cases

arising under Title VII or other federal

antidiscrimination laws. Swierkiewicz v.

Sorema NA. 534 U.S. 506, 511 (2002),

meeting the heightened pleading standard of

Rule 9(b) is still not sufficient to support an

actionable claim of discrimination against a

judge according to the Second Circuit's

decision.

Intentional discrimination and fraud are

closely related siblings. Both could meet the

pleading requirements under Federal Rules

of Civil Procedure 9(b) or 8(a)(2). This Court

has held that mere compliance with Federal

Rule of Civil Procedure 8(a)(2), is sufficient to

plead discrimination. See Swierkiewicz, 534

18

U.S. at 511 (quoting Conley v. Gibson, 355

U.S. 41, 47 (1957)). Not in the case of

intentional judicial discrimination.

Discrimination suits against judges always

get dismissed no matter how the fraud

pleading standard might be.

In this case, the Petitioner’s discrimination

suit against the Respondent judge meets the

pleading standard under Rule 9(b), yet it was

dismissed under Mooker-Feldman and

judicial immunity.

Furthermore, the Second Circuit is in

conflict with this Court’s opinion in Ashcroft

in declining to apply this Court’s standard in

Ashcroft in a claim of discrimination, just

because the discrimination claim happens to

be against a judge.

The Second Circuit held that the Petitioner

has “[flailed to state a plausible claim under

Title VI because, “as the district court noted,

his pleading contains no non-conclusory

allegations that would support any inference

that he suffered discrimination in the judicial

proceedings based upon his Middle Eastern

national origin.” App. lla. In other words,

the Second circuit has held that pleading

fraud along with the undisputed violation of

25 U.S. Code § 1912() is not sufficient to

support any inference of discrimination in the

judicial proceedings “(While a

discrimination complaint need not allege

facts establishing each element of a prima

facie case of discrimination to survive a

motion to dismiss, it must at a minimum

assert nonconclusory factual matter sufficient

to nudge its claims across the line from

conceivable to plausible to proceed.”

Swierkiewicz v. Sorema N.A., 534 U.S. 506,

510 (2002); Ashcroft v. Iqbal, 556 U.S. 662,

680 (2009)).

19

5- Certiorari is Warranted to Harmonize

Conflicting Decisions in Circuit Courts

The Circuits are split on several levels.

When a_ federal plaintiff raises a

discrimination claim in the administration of

justice against a judge, it is axiomatic that

the plaintiff complains about an adverse

ruling that attaches to the judge’s judgment.

Because of that alone, a claim of such nature

would hit the bar of challenging a ‘judicial

act.’ Accordingly, the Second Circuit

continues to broaden the application scope of

Rooker-Feldman, although this court has

substantially narrowed it in Exxon Mobil

Corp. v. Saudi Basic Indus. Corp., 544 U.S.

280, 284 (2005). Now, Rooker-Feldman is a

“narrow doctrine, confined to cases brought

by state-court losers complaining of injuries

caused by state-court judgments rendered

before district court proceedings commenced

and inviting district court review and

rejection of those judgments.” Lance v.

Dennis, 546 U.S. 459, 464 (2006) (quoting

Exxon Mobil, 544 U.S. at 284). Inconsistent

with the Second Circuit’s construction of

Exxon Mobil, the Sixth Circuit held that “lLilf

the plaintiff has a claim that is in any way

independent of the state-court judgment, the

Rooker-Feldman doctrine will not bar a

federal court from exercising jurisdiction.”

Abbott v. Michigan, 474 F.3d 324, 330 (6th

Cir. 2007).

This Court further clarifies this point as

follows: “Congress, if so minded, may

explicitly empower district courts to oversee

certain state-court judgments and has done

so, most notably, in authorizing federal

habeas review of state prisoners' petitions. 28

U. S. C. § 2254(a).” Exxon Mobil Corp. v.

Saudi Basic Industries Corp., 544 U.S. 280,

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