Petition for Writ of Certiorari — In re Research Air, Inc.

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Supreme Coust, U.S.

[ FILED

No. 4 311 AUG2 3 20M

In THE OFFICE OF THE CLERK

Supreme Court of the United States

IN Re RESEARCH Air, INC, CHARLES R. ARMENT,

AND MIcHAEL H. Ditton,

Petitioners,

CaTtuy A. CATTERSON, CLERK OF THE CourT, UNrTED STATES COURT OF

APPEALS FOR THE NINTH CircutT; HONORABLE GALE A. Norton, SEC-

RETARY OF THE INTERIOR, DEPARTMENT OF INTERIOR; DEPARTMENT OF

INTERIOR; STEVE SMITH, West AREA Director, OFFICE OF AIRCRAFT

SERVICES; ROBERT GALLOWAY, AVIATION SAFETY MANAGER, OFFICE

OF AIRCRAFT SERVICES; UNITED STATES OF AMERICA; AND HONORABLE

RICHARD F. CeBULL, Unrrep States District Court JUDGE,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR CERTIORARI

OR WRITS OF MANDAMUS AND PROHIBITION

MIcHAEL H. Ditton

Petitioner, and Counsel

of Record for Petitioners

Attorney at Law

2210 Bridger Drive

Bozeman, Montana 59715

(406) 587-7386

QUESTIONS PRESENTED

Whether Ninth Circuit Rule 27-10 that supersedes Federal

Rules of Appellate Procedure (“FRAP”) Rule 40(a)(1) violates

28 U.S.C. 46(c), 2071 and 2072 and 28 U.S.C. App. FRAP 47

by imposing a 14-day filing time limit on petitions for rehearing

and rehearing en banc when an officer of the United States, a

United States agency, and the United States are parties to origi-

nal proceedings.

Whether the Ninth Circuit’s five Bauman guidelines conflict

with 28 U.S.C. § 1651 and this Court’s precedent when applied

to deny mandamus or prohibition writs to enjoin federal agency

officers’ ultra vires and unconstitutional actions, protect the

appellate court’s jurisdiction, command a lower court to decide

a pending case pursuant to FRCP Rule 65 and 28 U.S.C. §

1657(a), and review unconstitutionality of district court local

admission rules?

Whether Petitioners are entitled to relief pursuant to 28 U.S.C. §

1651(a) and Supreme Court Rule 20 to compel Respondent Clerk

to file and distribute their Petition for Rehearing and Suggestion

for Rehearing En Banc; compel Respondent District Court to

decide the preliminary injunction motion; enjoin federal agency

officers’ ultra vires and unconstitutional actions; and, review

unconstitutionality of district court local admission rules?

PARTIES TO THE PROCEEDINGS

The parties to the proceeding are:

RESEARCH AIR, INC., a corporation |

CHARLES R. ARMENT, an individual ;

MICHAEL H. DITTON, an individual

as Petitioners,

CATHY A. CATTERSON, Clerk of the Court, United States

Court of Appeals for the Ninth Circuit, in her official

capacity i

HONORABLE GALE A. NORTON, Secretary of the Interior, in

her official capacity

DEPARTMENT OF INTERIOR a federal executive department

STEVE SMITH West Area Director, Office of Aircraft Ser-

vices, in his official capacity

ROBERT GALLOWAY, Aviation Safety Manager, Office of

Aircraft Services, in his official capacity

UNITED STATES OF AMERICA,

HONORABLE RICHARD F. CEBULL, United States District

Court Judge, in his official capacity

as Respondents.

Pursuant to R.Sup.Ct. R. 29.1, Petitioners state there are no par-

ent companies or subsidiaries of Petitioners.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED .....ccccccccccccccccccce i

pe ern itl

PT RP RUREEUED 60 ccc cccccccncectsescosces vi

i oo 6 sas keeb ee set scévoceenseneaten l

i sai ck sys sh deabie ss aewa 6a sds cubeee ss l

CONSTITUTIONAL PROVISIONS AND STATUTES .... l

OPEREMENOE GOT BUMP GGUIED occ scccsaccsccccscccccse 2

REASONS FOR GRANTING THE WRIT .............. 7

I. THE COURT OF APPEAL’S 14-DAY RULE: ........ 7

A. VIOLATES FEDERAL RULES OF APPELLATE

PROCEDURE RULES 40(A)(1) & 47;

28 U.S.C. §§ 47(C), 2071 & 2702 ............... 7

B. CREATES TRAPS FOR THE UNWARY

CAUSING PERNICIOUS EFFECTS ........... 15

C. AMOUNTS HERE TO FRAUD ON THE COURT ..__17

Il. THE NINTH CIRCUIT’S BAUMAN GUIDELINES

CONFLICT WITH 28 U.S.C. § 1651 WHEN

RE EP eee eer Te eee eee 19

A. TO NOT COMPEL PRELIMINARY

TEE oc cctniewessscaksceen 24

B. TO NOT RESTRAIN FEDERAL OFFICERS :

ACTING ULTRA VIRES AND

UINCUINSEEEULIONALLY 20... cccccceccccces 26

C. TO NOT REVIEW LOCAL ADMISSION RULES . 28

ET cccdans has bbc cbtdbachacdsescnae’ eee 30

. Ninth Circuit Docket for Cir. No. 04-70454 ......... llla

APPENDICES

Ninth Circuit’s May 17, 2004 Order Denying Motion .__ila

Petitioners’ April 28, 2004 Letter Complaining

eae) 1s oe ae a re eee ig edge 2a

Petitioners’ April 13, 2004 Motion to Vacate

GE ei cacassawnsndcdiedsneseseeindedns l4a

Ninth Circuit April 5, 2004 Order Denying Petition... 28a

Petitioners’ March 17, 2004 Petition for Rehearing

PTE Ere rel Tee ey rere oT err ry 29a

Ninth Circuit’s February 25, 2004 Order

ID bv a canes sank snaees obeueecneey 47a —

. Ninth Circuit’s February 17, 2004 Order Demanding

PEE OE vb onc ci ese ne s déebeandéeusee 48a

Ninth Circuit’s February 6, 2004 Docketing

Peston Ma Cae INO. GU FP IS occ cacenenvcscsisens 49a

. Ninth Circuit’s February 2, 2004 Docketing Notice

ee Se OTE nb cd ck avn cnsadeenevetecunnss 50a

Petitioners’ January 30, 2004 Petition for Writs

of Mandamus and/or Prohibition ................. S5la

District Court’s Order Dated January 7, 2004

Scheduling Hearing on Local Counsel Motion

to Withdraw for January 30, 2004 .................. 74a

District Court Order dated October 15, 2003

Denying Petitioners’ Attorney Ditton Admission .... 75a

. District Court Order dated July 25, 2003 Ordering

Administrative Record Filed ..................... 78a

Petitioners’ July 2, 2003 Motion for Preliminary

SE hkau kes ddgedaed es caeeue ceeeareenes 79a

Petitioners’ July 2, 2003 Complaint

CPO kncnencdcuamhcnina sinnbiee ss 82a

AA.

Ninth Circuit Docket for Cir. No. 04-70372 .........

District Court Docket for Dist. No. 03-54-BU-RFC ...

Federal Aviation Act Excerpts, 49 U.S.C.

oF er Pr rer ree:

Independent Transportation Board Act Excerpts,

OP U.BL., GS ERGO IS Ghee nko csdceans baweinn vues

Administrative Procedure Act Excerpts,

> UDA. GG SSGb- 10) SOG no oc ov cedaenbekdcnes

Ninth Circuit Notice of Proposed Amendments

to Circutt Rules Aus. €, 2003 ... 0... cece cccccs

U.S. District Court for the District of Montana,

SMOG 6 56.6655 be eee

Ninth Circuit Advisory Notes to Cir.R. 27-1-4 .......

Federal Advisory Committee Notes FRAP 40 .......

ae UB. 8 OGGE ics dni csvincehusoe eee

TABLE OF AUTHORITIES

CASES

Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990)... ..... 27

Adamo Wrecking Co. v. United States, 434

OS. STS CIGTED on ccacsccccasuagssveutestnaan 27

American Bioscience, Inc. v. Thompson, 269 F.3d

0677 GA. Cie SGD 20dcnec secccapeunpesucas 23

American Rivers v. FERC, 170 F.3d 846

COR Cle, ROGUE 6 on vnkcccesuciuetssereseyensees 24

American School of Magnetic Healing v. McAnnulty,

167 UD. SECTS 6c veccuscututsssenctsaesess 27

Arapahoe County Public Airport Authority v. FAA,

242 F.3d 1213 (10th Cir. 2001) ................. 26

Bankers Life & Casualty Co. v. Holland, 346

US. SIO CSSD cccccdutncseusadseusyssuaeen 24

Barry v. Barchi, 443 U.S. 55 (1979) . 2... 6.66. c eee ee 26

Bauman vy. United States Dist. Ct.,

557 F.2d 650 (9th Cir. 1977) ......... 6, 18-21, 23, 25

Bell v. Burson, 402 U.S. 535 (1971) ..... 2.2... .0 06 26

Bianchi v. Perry, 154 F.3d 1023 (9th Cir. 1998) ........ 16

Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995) ........ 16

Bowen v. Michigan Academy of Family Physicians,

476 UD. GGT CISGED oc cevccunctsanchecssaneen 27

Brown v. Smith (In re Poole), 222 F.3d 618

(SG Cie, SUMED 0 0cc0csecscenbasesgeseeeseeun 28

CAB v. Delta Air Lines, Inc., 367 U.S. 316 (1961) ..... 28

Calderon v. Thompson, 523 U.S. 538 (1998) .......... ll

Casad v. HHS, 301 F.3d 1247 (10th Cir. 2002) ........ 26

Cheney v. U.S. District Court, 542 U.S. __ (2004) ..... 21

Chambers v. NASCO, Inc., 501 U.S. 32 (1991) ........ 19

Coalition of Airline Pilots v. FAA, 370 F.3d 1184

tele 2 Pree rrr rT 22

Colorado River Water Conserv. Dist. v. United States,

GUUS. GED CIGD nob hn08dscnsedieiaseieeee 25

Commercial Drapery Contractors, Inc. v.

United States, 133 F.3d 1 (D.C. Cir. 1998) ........ 27

Cromoglass Corporation v. Ferm, 500 F.2d 501

(Sub Che, ISPD occ cciccccccscucesencsaseeesun 25

Vii

Coteau Properties Co. v. Interior, 53 F.3d 1466

Se OE SbaSeaubscaeeaé weacasaeddeuces 25

Custer County Action Association v. Garvey,

256 F.3d 1024 (10th Cir. 2001) ...........0..... 27

Dart v. United States, 848 F.2d 217 (D.C. Cir. 1988) ... 28

DOT v. Public Citizen, 541 U.S. __ (2004) ........... 26

Dynamic Aviation v. Interior, 898 F. Supp. 11

SR aa ccanduebel ites ssh dcaueca nin 22

Ellis v. U.S. District Court, 356 F.3d 1198

Ce Ce Bee CO BME) gcc ccccccccccccccccscs ll

Ex Parte Bradstreet, 32 U.S. (7 Pet.) 634 (1833)... oses OO

Fairview v. Transportation, 201 F. Supp.2d 64

Ge EE sn. cub susvalasawbnubbaaeennaces 26

Foster v. Skinner, 70 F.3d 1084 (9th Cir. 1995) ........ 23

GATX/Airlog Co. v. United States, 234 F.3d 1089

PE BE 5b aba csdenmchdeckesesckseeeus 22

Gerritsen v. Consulado General de Mexico,

SSP Fe FOO GR Cre IGF) bo cccccccccccccccces

Gibson v. NTSB, 118 F.3d 1312 (9th Cir. 1997)

Se 6 ob Ghana vanacduceakasacccceneads 23

Goetz v. Harrison, 154 Mont.

ee 29

Graham v. Teledyne-Continental Motors,

805 F.2d 1386 (9th Cir. 1986) .................. 22

Grand Canyon Air Tour Coalition v. FAA,

EPO ewe SS Cas GED BOOED bc ccccccccoccscece 27

Greene v. McElroy, 360 U.S. 474 (1959) ............. 26

Gwaduri v. INS, 362 F.3d 1144 (9th Cir. 2004) ........ 14

Harmon v. Brucker, 355 U.S. 579 (1958) (per curiam) .. 27

Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) ...... 16

Hawaii Helicopter Operators Ass'n v. FAA,

Fe Ce BES COUN GEE FOOD ccctcccecuccicescess 23

Hazel-Atlas Co. v. Hartford Co., 322 U.S. 238

SN ..50cnGhnn bAdnnghedced ee bones eéece on 18, 19

Hibbs v. Winn, 542 U.S. __ (2004) .... 2... eee. |

Huffman v. Montana Supreme Court,

FER E> MN, BRE OMPOEE oon kncccccccectecescoe 29

Hunt v. Commodity Futures irading Comm.,

See WL PEPE PUR GED ENCED occdccdccccccnncaa 23

Vili

In re American Rivers and Idaho Rivers United

v. FERC, _ F3d__ (D.C. Cir. Jun. 22, 2004) .....

In Re Perry, 859 F.2d 1043 (ist Cir. 1988) ...........

In Re Vargas, 723 F.2d 1461 (10th Cir. 1983),

cert. denied, 469 U.S. 819 (1984) ...............

Insurance Co. v. Comstock, 83 U.S. 258 (1872) .......

Jifry v. FAA , 370 F.3d 1174 (D.C.Cir. 2004) ..........

Joint Anti-Fascist Refugee Committee v. McGrath,

ee ee Ec cnk os wincarindenwae cease te

Kerr v. United States Dist. Court, 426 U.S. 394

oo Re re errr errs yr ere

Kovilic Construction Co. v. Missbrenner,

106 F.3d 768 (7th Cir. 1997) ........ Serer erry

LaBuy v. Howes Leather Co., 352 U.S. 249 (1956) .....

Larson v. Domestic and Foreign Commerce Corp.,

pg Sr ee ere Pere

Las Vegas Hacienda, Inc. v. CAB, 298 F.2d 430

(9th Cir.), cert denied, 369 U.S. 885 (1962) .......

Leedom v. Kyne, 358 U.S. 184 (1958) ...............

Leslie Miller, Inc., v. Arkansas, 352 U.S. 187 (1956) ....

Life & Fire Insurance Co. v. Wilson,

a Pee Perr rrerrr rr

Louisiana Public Service Commission v. FCC,

Sa PR chase cawed ace ecas cee eaece

L.P. Steuart & Brothers, Inc. v. Bowles, 322 U.S. 398

PE cacib sakes e indeed eh Saks oes aaeee ane rees

Mallard v. United States Dist. Court,

Se EUG Su deetieedeusedneweeds

Maloney v. Plunkett, 854 F.2d 152 (7th Cir. 1988)......

Mancuso v. Herbert, 166 F.3d 97 (2nd Cir. 1999) ......

Marbury v. Madison, 5 U.S. 137 (1803) .............

Mariscal-Sandoval v. Ashcroft, 370 F.3d 851

oe GR per er ree

Matter of Bar Examination, 187 Mont. 159, 187,

SE 5 tne eaeaonsedssdeatandeas

Matter of Sandahi, 980 F.2d 1118 (7th Cir. 1992) ......

Mayo v. Lakeland Highlands Canning Co.,

Pe SD on batccne bee ane bancansves

McClatchy Newspapers, Inc. United States,

288 F.3d 369 (9th Cir. 2002) ................... 1]

Mendenhall v. NTSB, 92 F.3d 871 (9th Cir. 1996),

as mod. 213 F.3d 464 (9th Cir. 2000) ............ 25

Miller v. French, 539 U.S. 327 (2000) ............... 24

Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003)

Sen een i1-13

Missouri v. Jenkins, 495 U.S. 33 IE > e's aks 8, 10, 16

Morales v. Trans World Airlines, Inc.,

ae 24

National Org. for Reform of Marijuana Laws v.

Mullen, 828 F.2d 536 (9th Cir. 1987) ............ 12

Norton v. Southern Utah Wilderness Alliance,

42 US. __ (Jum. 14, 2004)... cuca neee, 23

Northern Pipeline Construction Co. v. Marathon

Pipe Line Co., 458 U.S. 50 (1982) ............... 14

Oceanair of Florida v. DOT, 876 F.2d 1560

ee Pre ae eee 28

Oestereich v. Selective Serv. Sys. Local Bd. No. 11,

TPS UB. SIS EIDGG) oo vn cccenccsccnccenn, 27

Philadelphia Company v. Stimson, 223 U.S. 605 (1912). 26

Rees v. United States District Court, 572 F.2d 700

(9th Cir. 1978) .......... Wad iG Me eek Slee ae 22

Reeve Aleutian Airways, Inc. v. United States,

889 F.2d 1139 (D.C. Cir. 1989) ................. 25

Rhode Island Dept. of Env. Mgt. v. United States,

SOO P3631 (het Cle, 2002) 2... 5k cece cee 23

Rittenhouse v. Delta Improvement, Inc.

(In Re Desilets), 291 F.3d 925 (6th Cir. . ss 29

Roche v. Evaporated Milk Association, 319 U.S.

I kn as Chet dca w bhatt ae kk ica 24

Schacht v. United States, 398 U.S. 58 a re 9

Sperry v. Florida ex rel. Florida Bar,

ee Bt are 29

Stark v. Wickard, 321 U.S. 288 (1944) ............. 26, 27

Stidham v. Peace Officer Standards & Ti raining,

265 F.3d 1144 (10th Cir. 2001) ................. 25

Sloan v. Department of Housing & Urban

Development, 231 F.3d 10 (D.C. Cir. rer 25

Tempe v. Federal Aviation Administration,

239 F. Sgp.26 S35 (D.C. BGS) ance acccacessas 26

Textile Mills Securities Corporation v. Commissioner,

ee ee | PPP rererrerr sere rr Terre 13

Theard v. United States, 354 U.S. 278, 281 (1957) ..... 28

Thermtron Products, Inc. v. Hermansdorfer,

gS ee Reeererrer rer err errr rr 25

Thomas v. United States, 328 F.3d 305 (7th Cir. 2003) .. 14

SUR © Eley Sat Us BIO ENP) bik eee bandaredanas 28

U.S. Air Tour Association v. FAA, 298 F.3d 997

(D.C. Cir. 2002), cert. den., 123 S.Ct. 1783 (2003).. 27

United States v. Beggerly, 524 U.S. 38 (1998) ......... 19

United States v. National City Lines,

eg re rere rr 9

United States v. Oakland Cannabis Buyers’ Coop.,

Re rey er mie reas >

United States v. Red Frame Parasail,

160 F. Supp.2d 1048 (D.Ariz. 2001) ............. 8

United States v. Ron Pair Enter., Inc., 489 U.S. 235

fi EPC re yer C rer rye Pre rorE rrr rT rree 20

United States v. Schooner Peggy,

Ok te me eee rrr 24

United States v. Seatrain Lines, 329 U.S. 424 (1947) ... 28

United States v. Varig Airlines, 467 U.S. 797 (1984) .. 26, 27

Willowbrook v. Olech, 528 U.S. 562 (2000) ........... 30

Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) ....... 25

Washington Public Utilities Group v. United States

District Court, 843 F.2d 319 (9th Cir. 1987) ...... 20

Western Pacific Railroad Corp. v. Western Pacific

Railroad Co., 345 U.S. 247 (1953) .......... 9, 10, 13

William H. Banks Warehouses, Inc. v. Watt,

205 F.2d 44 (9th Cir.) (per curiam) cert. den.,

pS Re Ream gg penning aS 11

Williams v. Simons, 355 U.S. 49 (1957) (per curiam) ... 24

Youghiogheny and Ohio Coal Co. v. Milliken,

200 F.3d 942 (6th Cir. 1999), cert. den.,

re See EE +0 Sou Grn leaseeseaveaneees 14

Zephyr Aviation, L.L.C. v. Dailey, 247 F.3d 565

eR A I A ae rere EEA Aras 22

CONSTITUTIONAL PROVISIONS

Amendment V, United States Constitution ...............

STATUTES

PS 5d oo heh hee ke wees adden es 1, 28

PE tiered vas kn a dath naka leak ks 1, 23,22

ES bn wikd a 30 4a xmas Wa wee 1,7, 10

EEE. i sg 0a twas ee Gee woe aewakaaes 17

REE iad Sak os Gatorade achanaaes 44 W445 Exe 17

PE I) ed oaks a oe ean de eGeee ki cance sen 14

CR | BR Er re peer e err rr rr ra 14,17

GEE TE a cana eaek cc Loe ee eee ee iow ees 14,17

PRE OE i aes yeas ones we we ak Keane ieee 17

Ea ra Gere ade nab awe eae tan weke sie 14

a ona kes ous cuexdsekanee sh 1, 19, 23

es EE bah da kab Ga beak wanen eee 17, 20, 24, 26

a S| Ep iid Stra eine eR aa eg ae 7,9

Oe EI eG Ata Sade yvad bn ddee eee aeus 55 7, 9, 10

ee EE kk cokes c ake. Sti dein Noack ee haere eiohs 17

20 U4... App. FRAP Rate 2)... 6.2. cia aaess 11, 12, 15

28 U.S.C. App. FRAP Rule 27 . ow... wens 11,12

28 U.S.C. App. FRAP Rule 35 ............ 6-9, 11, 15, 16

28 U.S.C. App. FRAP Rule 40 ............ 6-9, 11, 14-16

ae USA... Age. FRAP RMS? 2... 5 cc ccnescacces 7, 11

28 U.S.C. App. FRCP Rule 52 ..... Le Ahan kak 25

Be Pe PD. PO EGS oso oc eins cncnsaenss 24

49 U.S.C. §§ 40101 & 46110 ................. 1, 22, 26

Oe eas Oe PRUE EO oc bak Shika deneunedeakeos 1, 22

RULES

a rrr nr er re re ]

ee 1, 20

POE IUD EAD oibccadenvabcvandanseenan 1]

DOR PTE cn cnc csnancccawncsesianes 7

eS | ere 7, 10-12, 16

ip ee eh rrr 2, 4, 5, 28

Rules of Court of Federal Claims, Rule 81(b) ......... 29

Rules of the Armed Services Board of Contract

Appeals (1 July 1997), Rule 26 ........-++++005: 29

REGULATIONS

tg 2) Sen eer rn ree ee eer 29

PAGE. SORTING non cc cies ccc en csd se ccbssvans 3

MISCELLANEOUS

12 James Wm. Moore et al., Moore's Federal Practice,

q 60.21 [4]{a], § 60.21[4)][a], [b] (3d ed. 1999) ..... 17

Federal Advisory Committee Notes FRAP 40 ......... 8,9

Ninth Circuit Advisory Committee Note to Circuit

po PLAS FS ere reer ere Tr Tree ee eee e eT 7

Ninth Circuit Advisory Committee Note to Circuit

CE 2d MRA nn kc eam dae ieee warns seus 7

Ninth Circuit Notice of Proposed Amendments

to Circuit Rules (Aug. 8, 2003) ........-0 cee eees 11

Ninth Circuit General Orders, 9 6.1] ........+40+005: 8

Department of Intericr Departmental Manual,

if 2 eer er errr Serr rr rrr. fois et 3

]

Petitioners respectfully pray that a writ of certiorari issue to

review the orders of the Court of Appeals for the Ninth Circuit

entered on May 17, 2004, April 5, 2004, and February 25, 2004. In

addition, or alternatively, Petitioners respectfully pray under Rule

20 for writs of mandamus and/or prohibition against Respondents

Clerk, District Court, and the federal agency respondents, in aid of

this Court’s appellate jurisdiction.

OPINIONS BELOW

The Court of Appeal’s May 17, April 5, and February 25, 2004

unpublished orders are reprinted in the appendix at la, 28a, & 47a.

JURISDICTION

Jurisdiction in the District Court was invoked under 28 U.S.C.

§§ 1331, 1346, 1361, 1491(a) (1), & 2201, and the Administrative

Procedure Act (“APA”), 5 U.S.C. §§ 551, et seq.. Jurisdiction in the

Court of Appeals was invoked under 28 U.S.C. § 1651(a), and the

judicial review provisions of the Federal Aviation Act, 49 U.S.C. §

46110, Independent Transportation Board Act, 49 U.S.C. § 1153,

and the APA, 5 U.S.C. §§ 701-706. Jurisdiction in this Court to

review the final decision of the Ninth Circuit is invoked under 28

U.S.C. § 1254,! and for the requested writs, 28 U.S.C. § 1651(a), 49

U.S.C. §§ 46110(e) & 1153, and R.Sup.Ct. Rule 20.

CONSTITUTIONAL PROVISION AND STATUTES

The Fifth Amendment, United States Constitution, states in perti-

nent part: “No person shall be...deprived of life, liberty or property

without due process of law”. 28 U.S.C. § 46(c) states:

Cases and controversies shall be heard and determined

by a court or division of not more than three judges, unless a

hearing or rehearing before the court in banc is ordered by a

majority of the circuit judges of the circuit who are in active

Because the Ninth Circuit failed to rule on Petitioners’ timely Petition for Rehear-

ing and Suggestion for Rehearing En Banc, filed March 22, 2004, the 90 day certio-

rari petition filing time remains tolled. FRAP Rules 35& 40(a)(1); R.Sup.Ct. R. 13.

Alternatively, Petitioners are timely being within 90 days of the last order. See Hibbs

v. Winn, 542 U.S. ___ (2004) (briefing order left unresolved whether the court would

modify its judgment so that petition for a writ of certiorari filed within 90 days of

briefing order was timely emphasizing finality).

service. A court in banc shall consist of all active circuit

judges of the circuit.

The All Writs Act, 28 U.S.C. § 1651, provides that: “The Supreme

Court and all courts established by Act of Congress may issue all

writs necessary or appropriate in aid of their respective jurisdictions

and agreeable to the usages and principles of law.”. 28 U.S.C. §

1651(a). 28 U.S.C. § 1657 (“Priority of civil actions”) is reprinted

in the appendix at 152a. 28 U.S.C. App. Federal Rules of Appellate

Procedure (“FRAP”) Rule 35(c) “Time for Petition for Hearing or

Rehearing En Banc” states: “A petition for a rehearing en banc must

be filed within the time prescribed by Rule 40 for filing a petition for

rehearing.”. FRAP Rule 40(a) (1) states:

(1) Time. Unless the time is shortened or extended by order

or local rule, a petition for panel rehearing may be filed

within 14 days after entry of judgment. But in a civil

case, if the United States or its officer or agency is a

party, the time within which any party may seek rehear-

ing is 45 days after entry of judgment, unless an order

shortens or extends the time.

Ninth Circuit Rule (“Cir.R.”) 27-10 “Motions For Reconsideration”

is reprinted in the appendix at 149a. Relevant portions of the Federal

Aviation Act, 49 U.S.C.§§ 40101 & 46110; Independent Transporta-

tion Board Act, 49 U.S.C. §§ 1116 & 1153; and, the APA, §§ 551(6-

10) & 554, 703 & 706 are reprinted in the appendix at pp.126-138a.

The challenged local admission rule, L.R. 83, is reprinted in the

appendix at p.146a. -

STATEMENT OF THE CASE

Petitioner Arment, an American citizen, is a fully qualified Fed-

eral Aviation Administration (“FAA”) licensed commercial pilot

holding an FAA Federal Aviation Regulations Part 135 single pilot

commercial operator’s certificate with operating specifications for a

specialized low-level commercial airplane flying business.” He is the

president and sole owner of Research Air, Inc. that owns a Christen

Husky two-seat airplane uniquely equipped to fly low-level wildlife,

2The complaint allegations, taken as true, are at App. O, 82-110a and the Peti-

tion allegations are at App. J, 51-73a.

waterfowl, and fish tracking missions for the Department of the Inte-

nor’s (“Interior”) Fish and Wildlife Service (“FWS”), and for other

federal agencies. Over the course of about 12 years he has made a

large investment in his flying business—about $300,000—and make

more competitive his commercial civil aviation business purchasing a

two-seat airplane and modifying the airplane to include sophisticated

radio frequency detection and global positioning system equipment.

Mr. Arment and Research Air reside in Montana and flew interstate to

Utah when hired by Interior to fly low-level (below 500 feet) endan-

gered species tracking missions for the FWS Colorado River F ishery

Project. Interior requires possession of an interagency pilot qualifica-

tion card (“pilot card”) in addition to FAA commercial operator (Part

135), airman, and medical certificates for contract pilots, 351 DM

3, § 3.5D, and Mr. Arment has held such pilot card since 1982. Mr.

Arment is a highly experienced well-respected low-level pilot with 28

years of flying experience. From 1992 through now in 2004 Petitioner

Arment has never received any unsatisfactory marks on FAA or OAS

flight evaluation checks.

Interior excluded Mr. Arment and Research Air from further

commercial flight contracts on March 26 and 27, 2002 without

any proper notice to them alleging they violated federal aviation

regulation § 91.119(c) (App. at 58a) by flying too close to a power-

line while flying low-level for Interior.3 This affects at a minimum

low-level flight contracts for Interior, Department of Agriculture,

Forest Service, United States Navy, and the Coast Guard. Interior

publicizes on the Internet lists of qualified contract pilots and air-

craft (available at http://www.oas.gov/source). Interior requires all

ordering offices to ensure a contract pilot possesses the Interior pilot

card and is listed on the approved vendor and pilot lists before con-

tract flights.* Unless Mr. Arment’s and Research Air’s names appear

on Interior’s approved vendor lists, they are automatically disquali-

fied from contract award no matter how responsible they are. They

30AS’s rules require a flight check upon suspicion of unsafe piloting following

an OAS “incident with potential”, 351 DM 3, 4 3.4E. Interior refused to evaluate

Mr. Arment by an OAS flight check after their alleged “incident with potential.”

‘This includes all low-level federal flight contracts Petitioners might bid or pro-

pose on. No card, no contract. State and tribal organizations that would hire pilots

to fly low-level tracking missions aware of an Interior pilot card suspension would

not hire the suspended pilot.

cannot fly for non-government entities that either require possession

of the OAS card or cannot economically perform such contracts

without concurrent federal contract flights. As a law-abiding entre-

preneur Mr. Arment structured and developed his business based on

governmental low-level flying contracts. His two-seat aircraft filled

with sophisticated electronic gear cannot be used economically for

other kinds of commercial flight operations. Interior’s actions took

his investment; he is out of business.®

Mr. Arment and Research Air filed suit in United States district

court on July 2, 2003 against Respondents Norton, Smith, Gal-

loway, Interior and United States. The complaint states ten counts

including two Bivens’ causes of action against defendants Smith

and Galloway sued individually. Plaintiffs alleged defendants

deprived Arment and Research Air of substantive and procedural

due process and committed an unauthorized taking in violation

of the Fifth Amendment, took unauthorized agency action and

arbitrary and capricious agency action lacking substantial evi-

dence, a rational basis and neutral and detached decisionmakers

in violation of the APA. Plaintiffs alleged defendants had no law-

ful authority to impose and revoke the pilot card grounding them

from commercial operations when they fully complied with the

FAA aviation regulations and Interior had represented to them it

had exemptions from those regulations, that defendants violated

the Federal Aviation Act and regulations by unilateral determina-

tions of FAA violations, and that defendants illegally suspended,

excluded and de facto debarred Plaintiffs from federal government

contracting. Plaintiffs moved for a temporary restraining order and

a preliminary injunction the same day.

The district court denied the TRO on July 9, 2003, stating Plaintiffs

failed to satisfy Rule 65(b) “because the facts set forth in their affidavit

or verified complaint do not demonstrate ‘immediate and irreparable

injury, loss, or damage’. Instead, Plaintiffs detail events that happened

a year ago or more.” Respondent District Court also denied Plaintiffs’

attorney Ditton’s admission pro hac vice citing L.R. 83.3(e) (2) that

excludes resident attorneys not members of the Montana State Bar.

SResearch Air cannot survive with less than 150 hours low-level flying per year

and has only realized less than $3,400 since May 6, 2003. Expenses since January

1, 2003 are over $22,900. At this rate, Research Air is out of business.

Defendants filed a motion to dismiss for lack of subject matter juris-

diction and lack of personal jurisdiction over defendants Smith and

Galloway. They asserted the Contract Disputes Act, Tucker Act, and

APA barred Plaintiffs’ causes of action. On September 25, 2003 they

informed the district court they had no reply to Plaintiff’s preliminary

injunction motion supplement based on the Administrative Record.

On September 29, 2003 Plaintiffs’ attorney Ditton moved the district

court to waive the local admission rules for his full admission. The

district court never ruled on the preliminary injunction motion, never

ruled on defendants’ motion to dismiss, denied Mr. Ditton’s admis-

sion pro hac vice or with waiver, permitted Plaintiffs’ local counsel to

withdraw, and ordered Mr. Arment and Research Air to either proceed

pro se (leaving Research Air unrepresented) or discharge Mr. Ditton

and retain new counsel). Defendants never answered the complaint.

When the district court judge denied the motion for admission

with waiver, he stated Mr. Ditton was a Montana resident, “had not

taken and passed the Montana bar examination,” and:

An attorney who resides in Montana must be a member of

the State Bar in order to practice in its federal courts. This

is a simple rule. While Mr. Ditton’s argument pertaining to

the inequality of Local Rule 83.3’s residency requirement

of United States Attorneys and non-United States Attorneys

is interesting, it will not be addressed here. A simple remedy

is available to Mr. Ditton that would permit him to practice

law in the State of Montana, and, thus, in Montana’s federal

courts—obtain a license to do so by successfully passing

the Montana bar examination.

App. L at 75-77a (emphasis in original).? Respondent District Court

on January 7, 2004 scheduled a hearing on Petitioners’ local counsel

withdrawal motion for January 30, 2004. App. K at 74a.

*All of Mr. Arment’s and Research Air’s papers filed in the District Court were

properly signed by local counsel, including the complaint, and the motion and sup-

porting brief for preliminary injunction.

™r. Ditton cannot take and pass the Montana Bar Examination because

Supreme Court of Montana refused to let him do so. He has done something about

that. See Ditton v. Supreme Court of Montana, No. CV-04-27-H-CCL.

Petitioners then submitted their writs petition (“Petition”) to the

Ninth Circuit in overnight mail on January 29, 2004. App. J at 51a.

Citing FRAP Rule 21 and 28 U.S.C. § 1651, they sought writs of

prohibition and mandamus in aid of the circuit court’s jurisdiction.

Although Respondent Clerk received the Petition on January 30,

2004, with Petitioners’ check in the amount of the $250.00 as pay-

ment for the original proceedings filing fee, Respondent Clerk did

not docket their Petition until February 2, 2004. App. Q at 113a. On

February 2, 2004 circuit number 04-70454 was opened. App. P at

11la. On February 6, 2004, circuit number 04-70572 was opened with

the Petition filed therein as of February 2, 2004. App. H at 49a; Q at

113a. Only Petitioners’ two-page supplement to motion for expedited

consideration was filed in 04-70454 on February 9, 2004. App. P at

11la. Respondent Clerk then demanded Petitioners pay an additional

$255.00 as an appeal filing fee for 04-70572 although Petitioners had

not filed any notice of appeal. App. at 48a. Petitioners refused. When

Mr. Ditton belatedly learned about this he promptly complained to the

clerk’s office, the staff attorneys’ office, and the circuit executive. See

App. B at 12a and 4-Sa. After complaining to staff attorneys Deiss

and Hale on February 24 and 25, 2004, a panel order drafted by a staff

motions attorney/deputy clerk® denying the Petition was faxed to Mr.

Ditton and defendants’ counsel within two hours of his last conversa-

tion with Ms. Hale. Petitioners were never told that if they asked for

urgent consideration by telephone of their motion for expedition the

Petition itself would be decided in two hours.

Without ordering a response to the Petition from defendants the

Court of Appeal’s tersely denied the Petition and then stated all

motions were denied as moot. The decision states only that Petition-

ers had not “demonstrated that this case warrants the intervention

of this court by means of the extraordinary writ of mandamus. See

Bauman v. United States Dist. Ct., 557 F.2d 650 (9th Cir. 1977).”

App. F at 47a. Respondent District Court still has not ruled on the

July 2, 200 preliminary injunction motion.

Petitioners submitted a Petition For Rehearing and Suggestion For

Rehearing En banc pursuant to FRAP Rules 35 and 40 on March 17,

2004 filed March 22, 2004. App. E at 29a. Respondent Clerk summar-

8App. F at 3a. This is apparent from the face of the order that states the court’s

word processing filename as “s:\MOATT\ panelord\2.04\cd\04-70454.wpd”.

ily ruled the rehearings petition as untimely stating only that: “The

petition for rehearing and suggestion for rehearing en banc is denied

as untimely. See 9th Cir. R. 27-10.”. App. D at 28a. A “Motions

Attorney/Deputy Clerk” signed this order “For the Court” with “9th

Cir. R. 27-7 and General Orders/Appendix A” appearing in her signa-

ture block. /d. Petitioners moved to vacate this order by motion filed

April 17, 2004. App. C at 14a. This motion was summarily denied by

order dated May 17, 2004. App. A at la. Respondent Clerk has not

filed or distributed the Petition For Rehearing and Suggestion For

Rehearing En banc to the court.

REASONS FOR GRANTING THE WRIT '

The Ninth Circuit’s 14 day rule violates FRAP Rules 35, 40(a) ( 1)

& 47; 28 U.S.C. §§ 46(c), 2071 & 2702, this Court’s precedent, and

conflicts with all other circuit courts of appeals. Moreover, in this

case, the 14-day rule results in fraud on the court. Petitioner’s seek

orders or writs from this Court to protect the Court’s appellate juris-

diction to: have Respondent District Court decide Petitioner Arment

and Research Air’s preliminary injunction motion pending since

July 2, 2003; have Respondent Catterson file and distribute Petition-

ers’ rehearings petition; have Respondent Interior and its officials

return Mr. Arment’s pilot card, reinstate Mr. Arment and Research

Air on Interior’s qualified pilot and aircraft lists, and remove them

from Interior’s blacklists; restrain Interior from encroaching upon

the exclusive jurisdiction of the Department of Transportation; and,

invalidate or direct the Ninth Circuit to determine the constitutional-

ity of, Respondent District Court’s local admission rules.

I. THE COURT OF APPEAL’S 14-DAY FILING RULE:

A. VIOLATES FRAP RULES 35, 40(a) (1) & 47; 28 U.S.C.

§§ 46(c), 2071 & 2702

The Court of Appeals denied Petitioners rehearing only by the

authority of Cir.R. 27-10 that imposes the 14-day rule and states:

“The rule applies to any motion seeking review of a motions panel

order, either by the panel or en banc, and supersedes the time limits

set forth in Fed. R. App. P. 40(a) (1) with respect to such motions.

(new 1-1-04).”. App. X at 146a. Not all writ petitions are decided

by motions panels, some are decided by regular panels. See Circuit

Advisory Committee Note to Rules 21-1-4. App. Y at 147a. If a

motion is decided by an opinion en banc review is available, yet not

if a mandamus petition is summarily denied in an order.? Motions

panels are not as deliberate as regular panels, are controlled or at

least heavily influenced by staff attorneys and clerks, and decisions

can be made by less than three judges. The Court of Appeal’s reason-

ing that Cir.R. 27-10 pertaining to motions supersedes FRAP Rule

40(a) (1)’s filing time limits because the writ petition was denied by

a motions panel is specious. Petitioners’ rehearings petition clearly

sought to correct errors of law and fact and inconsistencies with

other circuits in the denial of their writs petition on the merits, and

not once mentioned the denial of their motion for expedited relief.

App. E at 29-46a. Having a motions panel review writ petitions does

not mean ipse dixit a writ petition is a motion. To arrive at the Court

of Appeal’s result one has to distort the English language: “peti-

tion” means “motion”; “petition for rehearing” means “motion for

reconsideration”; and, “review of a panel decision on the merits”

means “review of clerk or motions attorney's order”. This is wholly

unjustified. Missouri v. Jenkins, 495 U.S. 33, 48 (1990) (important

differences among “suggestion for rehearing en banc,” “petition for

rehearing” and “motion”).

The Court of Appeal’s claimed power to supersede the Federal

Rules of Appellate Procedure is nonexistent. FRAP Rule 40(a) (1)

plainly states Petitioners had 45 days within which to file a Peti-

tion for Rehearing and Suggestion for Rehearing En banc. These

rehearing petitions are provided as a statutory right to Petitioners. 28

U.S.C. App. FRAP Rules 35 & 40. A statutory rule must be applied

“according to its terms.” United States v. Ron Pair Enter., Inc., 489

U.S. 235, 241 (1989). The second sentence in Rule 40(a) (1) begin-

ning with “but” plainly eliminates whatever authority a circuit court

would otherwise have to reduce via circuit rule the 45 day time

limit. The second sentence allows such reduction only in a court

th Cir. Gen. Orders, ¥ 6.11, states:

The Clerk shall enter the receipt or filing of a suggestion for rehearing en banc

of a motion previously considered by a motions panel and transmit two copies of

it to the appropriate motions attorney for processing. The Clerk shall retain the

remaining copies until further direction by a judge or motions attorney. ...If the

motion was decided by opinion, copies of the suggestion will be circulated to all

active judges. The suggestion shall be referred by the motions attorney to the panel

which entered the order in issue.

order in a specific case. There was no such order in this case. Absent

such order, Petitioners reasonably relied upon and fully complied

with FRAP Riles 35 and 40(a) (1).

Assuming arguendo any ambiguity in Rule 40(a) (1) exists, the

Notes of Advisory Committee on Rules, 1994 Amendments to the

Federal Rules of Appellate Procedure Rule 40, emphatically state:

Although the first sentence of Rule 40 permits a court of

appeals to shorten or lengthen the usual 14 day filing period

by order or by local rule, the sentence governing appeals in

civil cases involving the United States purposely limits a

court’s power to alter the 45 day period to orders in specific

cases. If a court of appeals could adopt a local rule shorten-

ing the time for filing a petition for rehearing in all cases

involving the United States, the purpose of the amendment

would be defeated.

App. Z at 15la. These advisory committee notes are “entitled to

great weight”. Western Pacific Railroad Corp. v. Western Pacific

Railroad Co., 345 U.S. 247, 261 (1953).

Thus, the Court of Appeals had no power to supersede the Federal

Rules of Appellate Procedure. Its supercession rule violates 28 U.S.C.

§ 2701(a) (“Such rules shall be consistent with Acts of Congress and

rules of practice and procedure prescribed under section 2072 of this

title.”); § 2072(b) (“All laws in conflict with such rules shall be of

no further force or effect after such rules have taken effect.”’); and,

28 U.S.C. App. FRAP Rule 47(a) (1) (circuit court local rules must

be “consistent ... with Acts of Congress and rules adopted under 28

U.S.C. § 2072”); see United States v. National City Lines, 334 U.S.

573, 589 (1948) (“general power to supervise the administration of

justice in the federal courts ... does not extend to disregarding a val-

idly enacted and applicable statute or permitting departure from it”);

Schacht v. United States, 398 U.S. 58, 64 (1970) (judiciary statute

takes priority over the “procedural rules adopted by the Court for

the orderly transaction of its business.”); Kovilic Constr. Co. v. Miss-

brenner, 106 F.3d 768 (7th Cir. 1997) (“courts may not exercise their

inherent powers in a way that actually conflicts with constitutional or

statutory provisions,” citing Bank of Nova Scotia v. United States, 487

U.S. 250, 254 (1988), and 28 U.S.C. § 2072(b)). Local court rules that

conflict with the FRAP are void. 28 U.S.C. § 2071.

The Court of Appeal’s rule also conflicts directly with 28 U.S.C. §

46(c) as authoritatively interpreted by this Court. In Western Pacific,

supra, the Court applied 28 U.S.C. § 46 and reversed a panel per

curiam decision striking a litigant’s rehearings petition “as being

without authority in law or in the rules or practice of the court”). 345

U.S. at 261 This Court stated that parties appearing before the Court

of Appeals had “the right to know the administrative machinery that

will be followed” in processing rehearing and en banc petitions. The

Court also stated: :

We hold that the statute does not compel the court to adopt

any particular procedure governing the exercise of the power;

but whatever the procedure which is adopted, it should be

clearly explained, so that the members of the court and

litigants in the court may become thoroughly familiar with

it; and further, whatever the procedure which is adopted, it

should not prevent a litigant from suggesting to those judges

who, under the procedure established by the court, have the

responsibility of initiating a rehearing en banc, that his case is

an appropriate one for the exercise of the pewer.

345 US. at 267-68. See Jenkins, supra, 495 U.S. at 48 (“Regu-

lar adherence to published rules of procedure best promotes the

principles of fairness, stability, and uniformity that those rules are

designed to advance.”). Here, the Court of Appeal’s 14-day fil-

ing time rule cut off from the entire court Petitioners’ suggestion,

including their fraud on the court allegations, that en banc rehearing

was appropriate. When Petitioners moved to vacate the filing denial

order the Court of Appeals (probably the deputy clerk) again ada-

mantly denied review and peremptorily told Petitioners “no further

filings” would be accepted. (So much for the logic of a motion for

reconsideration available after denial of a motion).

Cir R. 27-10 violates 28 U.S.C. § 2071(b) for failure to give “appropriate pub-

lic notice and an opportunity for comment” that writ petitions are motions, rehear-

ings petitions are “motions for reconsideration,” 45 days is 14 days and FRAP 35

and 40 petitions for denial of writ petitions are eliminated.

The Court of Appeal’s decision conflicts directly with Western

Pacific Railroad, supra, by preventing Petitioners from suggesting

to the judges, who under the procedure established by the circuit

court have the responsibility of initiating a rehearing en banc, that

their case is an appropriate one for the exercise of the power, and

by curtailing its use indiscriminately." See William H. Banks Ware-

houses, Inc. v. Watt, 205 F.2d 44 (9th Cir.) (per curiam) cert. den.,

74 S.Ct. 43 (1953) (vacating panel denial of rehearing en banc upon

rehearing petition filed within 25 days without determination by the

active judges of the court).

Petitioners had no actual notice or knowledge that their rehear-

ings petition filed on March 22, 2004—within 45 days of February

25, 2004—would be untimely, or that FRAP rehearing petitions had

been prohibited.!2 No FRAP Rule 21 local rule warned Petitioners

that FRAP rehearing petitions must be filed within 14 days, not

45 days.!3 Nonetheless, the Court of Appeals applied its local rule

supplementing FRAP Rule 27 pertaining to motions to transform a

FRAP rehearings petition into an motion that could only be recon-

"The Ninth Circuit’s en banc rehearing procedures were discussed in Calderon

v. Thompson, 523 U.S. 538, 550, 552 (1998).

2When noticing for comment proposed amendments to Cir.R. 27-10, the Ninth

Circuit created new subparagraphs (a) and (b) to this circuit rule and deleted from

the categories of motions pertaining to a court order “rehearings...entered by a

motions panel must be filed within 14 days of the date of the order,” under new

(a) “Filing For Reconsideration”. By removing the reference to “rehearings” from

“filing for reconsideration” the Ninth Circuit actually reinforced the natural and

logical conclusion that rehearing petitions are not motions for reconsideration of

an order. New (b) “Court Processing” states the language: “This rule applies to any

motion seeking review of a motions panel order, either by the panel or en banc, and

supersedes the time limits set forth in Fed.R.App.P. 40(a) (1) with respect to such

motions.”. App. V at 144a. This notice of proposed amendments does not notice

any proposed amendment to FRAP Rules 21, 35 or 40. Id.

13Cir.R. 21-1, “Extraordinary Writs,” states: “Petitions for extraordinary writs

shall conform to and be filed in accordance with the provisions of FRAP 21(a).”.

Recent Ninth Circuit decisions permitting FRAP 35 & 40 rehearing petitions in

mandamus proceedings include Ellis v. United States District Court, 294 F.3d 1094,

1099-1100 (9th Cir. 2002), withdrawn, 313 F.3d 1094 (9th Cir. 2002), rev’d on

rehearing en banc, 356 F.3d 1198 (9th Cir. Feb. 4, 2004) (United States real party

in interest); Miller v. Gammie, 335 F.3d 889, 895 (9th Cir. 2003) (en banc) (Nevada

state respondent); McClatchy Newspapers , Inc. v. United States District Court, 288

F.3d 369 (9th Cir. 2002) (United States a named real party in interest).

sidered through a motion filed within 14 days of February 25, 2004,

or by March 10, 2004. That violates the aforementioned statutes,

and also FRAP Rule 47(b) that states:

No sanction or other disadvantage may be imposed for non-

compliance with any requirement not in federal law, federal

rules, or the local circuit rules unless the alleged violator

has been furnished in the particular case with actual notice

of the requirement.

Following the Court of Appeal’s reasoning to its logical conclu-

sion, denials or grants of writ petitions by order cannot be reheard at

all pursuant to a FRAP Rule 35 or Rule 40 rehearing petition, only

by Cir.R. 27-10 motions for reconsideration that are not circulated

to all Ninth Circuit judges in active service. The Court of Appeals

arbitrarily cut off an entire class of cases—wnit petitions decided by

motions panels—from panel rehearing or en banc review, limited

panel rehearings or the opportunity for en banc review to only those

writ petitions fortuitously decided by a regular panel, while exempt-

ing appeals treated as mandamus petitions since they are not con-

sidered by motions panels, see e.g., Miller, supra, 335 ¥.3d at 895

(treating notice of appeal where appellate jurisdiction was lacking

as a petition for a writ of mandamus); National Org. for Reform of

Marijuana Laws v. Mullen, 828 F.2d 536, 541 (9th Cir. 1987) (court

has discretion to treat appeal as petition for writ of mandamus). No

case bifurcation or demand for additional filing fees occurred in

those cases.

Eliminating rehearings and en banc review makes impotent the

Court of Appeal’s extraordinary writs arsenal. Egregiously wrong

decisions such as that presented here are held uncorrectable because

of an ironclad, heretofore unrevealed, 14-day rule that jettisons the

safety valve function of FRAP Rules 35 and 40. See Mariscal-Sando-

val v. Ashcroft, 370 F.3d 851, 856 (9th Cir. May 28, 2004) (refusing to

dissolve removal stay immediately upon filing opinion denying peti-

tion for review because “Mariscal-Sandoval still retains the ability to

petition this panel for rehearing, or to petition the court as a whole to

review our decision en banc. Until any further petitions to this panel

or the entire court are resolved, we cannot say that Mariscal-Sandoval

has no probability of success on the merits.”).

The Ninth Circuit’s peculiar rules and actions violate the purpose

of en banc review. Western Pacific, supra, 345 U.S. at 262 (“... there

is no reason to deny the litigants any chance to aid the court in its

effective implementation of the statute.”); Textile Mills Securities

Corp. v. Commissioner, 314 U.S. 326 (1941) (sustaining the author-

ity of the courts of appeals to sit en banc, “Conflicts within a circuit

will be avoided. Finality of decision in the circuit courts of appeal

will be promoted. Those considerations are especially irnportant in

view of the fact that in our federal judicial system these courts are

the courts of last resort in the run of ordinary cases.”); Miller v.

Gammie, supra, 335 F.3d at 900 (“We must recognize that we are

an intermediate appellate court. A goal of our circuit’s decisions,

including panel and en banc decisions, must be to preserve the con-

sistency of circuit law. The goal is codified in procedures governing

en banc review. See 28 U.S.C. § 46; Fed.R.App.P. 35.”).

The Court of Appeal’s drastically truncated filing time rule is fur-

ther infelicitous given that this circuit covers the largest geographic

territory in the nation, does not accept facsimile filings without spe-

cial permission, regular first class mail time averages four days from

Montana," and even upon receipt the Respondent Clerk can delay

filing papers, in this case by as much as three days. See App. I at 50a.

Given these circumstances and the totality of the Ninth Circuit’s

caseload, rehearing is the only safety net for litigants before the

court to point out the Court of Appeal’s decisional inconsistencies

and conflicts.

Through apparent over-reliance on staff attorneys and clerks, the

Ninth Circuit precludes proper judicial consideration of a litigant’s

papers first at the motions panel level and then at the established en

banc rehearing procedures. Factual circumstances presented in this

case suggest that the Ninth Circuit impermissibly delegates judicial

power to the Clerk and deputy clerk/staff attorneys neither appointed

by the President nor confirmed by the Senate in derogation of Article

(I, United States Constitution. In this case staff attorneys used as

clerks without authority apparently controlled the“outcome of Peti-

tioners’ original proceedings. See App. P at 11 1a (stating: “Terminated

Guam, the Northern Mariana Islands, Hawaii and Alaska are even more distant

from the Clerk’s office located in San Fransisco, California. The Ninth Circuit’s 14-

day rule effectively penalizes distant litigants and favors California litigants.

on the Merits after Submission Without Oral Hearing; Denied; Writ-

ten, Unsigned, Unpublished. Ferdinand F. Fernandez, William A.

Fletcher, Richard C. Tallman.”) (emphasis supplied).

“If the essential, constitutional role of the judiciary is to be main-

tained, there must be both the appearance and the reality of control

by Article III judges over the interpretation, declaration, and applica-

tion of federal law.” Northern Pipeline Construction Co. v. Marathon

Pipe Line Co., 458 U.S. 50, 76-81 (1982); see Mariscal-Sandoval,

supra, 370 F.3d at 860 (Beezer, J., concurring) (“In addition to being

unauthorized, the practice of permitting staff attorneys to grant stays

of removal deprives the judges of this court of an important judicial

obligation established by Congress for granting due process to an ever

increasing number of undocumented aliens who seek to reside in the

United States as permanent residents.”).!5 Congress’s authorization

for employment of staff attorneys, 28 U.S.C. § 715, did not rewrite the

Constitution. Congress limited the power and duties of clerks of court,

28 U.S.C. § 711 and prohibited clerks from practicing law, 28 U.S.C.

§ 955 (“The clerk of each court and his deputies and assistants shall

not practice law in any court of the United States.”). See generally

Gwaduri v. INS, 362 F.3d 1144 (9th Cir. 2004) (discussing general

orders and motions attorneys).

Not surprisingly, the Ninth Circuit’s peculiar 14-day rule conflicts

with every other federal circuit court of appeals that has considered

the issue. Mancuso v. Herbert, 166 F.3d 97, 99-100 (2nd Cir. 1999)

(“The Federal Rules of Appellate Procedure and this court’s Local

Rules make no mention of “motions for reconsideration.” There-

fore, we construe the government’s motion for reconsideration as a

petition for rehearing pursuant to Fed.R.App.P. 40 and Local Rule

40.”); Thomas v. United States, 328 F.3d 305, 308 (7th Cir. 2003)

(“For most purposes it makes sense to limit the phrase ‘petition for

rehearing’ to a request for review of a panel’s decision on the merits.

Someone displeased with another kind of decision—for example,

an order by a motions judge denying a request to file a brief longer

than the cap in Fed.R.App.P. 32—files a motion for reconsideration.

...Consequently, a document (whether styled “petition for rehear-

ing” or “motion for reconsideration”) that seeks review by the court

en banc will be distributed to all active judges.”). See Youghiogheny

1SClerks and motions attorneys do not take the judicial oath in 28 U.S.C. § 453.

and Ohic Coal Co. v. Milliken, 200 F.3d 942, 952 (6th Cir. 1999),

cert. den., 531 U.S. 818 (2000) (“...Rule 40(a) now grants all parties

to a civil case in which the United States or a federal agency or offi-

cer is a party forty-five days from the entry of judgment to petition

for rehearing,...”). This buried superseding rule also conflicts with

all other circuit courts of appeal rules.'®

B. CREATES TRAPS FOR THE UNWARY CAUSING

PERNICIOUS EFFECTS

The Ninth Circuit’s provincial rule creates traps for the unwary,

calling for exercise of this court’s supervisory powers. Any attor-

ney or pro se litigant seeking information about writ petitions and

petitions for rehearing would not logically look under circuit rules

conceming motions when explicit rules exist, including circuit rules,

for writ petitions, panel rehearing petitions, and petitions with sug-

gestions for rehearing en banc. FRAP Rules 21, 35 or 40. There is no

16The First, Second, Third, Seventh and Tenth Circuits have no rules contradict-

ing or superseding FRAP Rule 40(a) (1) nor mention “reconsideration”. The Third,

Fourth, Fifth, Eighth, D.C. and Federal Circuit have no rules contradicting or super-

seding FRAP Rule 40(a) (1) and have specific reinforcing rules. 4th Cir.R. 40(c)

states: “The Court strictly enforces the time limits for filing petitions for rehearing and

petitions for rehearing en banc. The Clerk’s Office will deny as untimely any petition

received in the Clerk’s Office later than 45 days after entry of judgment in any civil

case where the United States, or an agency or officer thereof is a party, or 14 days

after the entry of judgment in any other case.”. 5th Cir.R. 35.4 states: “Any petition

for rehearing en banc must be received in the clerk’s office within the time specified

in FED.R.APP.P. 40.”; see also Sth Cir.R. 40.4. 5th Cir. R. 27.1 states: “The clerk’s

action is subject to review by a single judge upon a motion for reconsideration made

within the 14 or 45 day period set by FED.R. APP.P.40.”. 6th Cir.R. 27 (g) “Motion

for Reconsideration” states: “A party may seek rehearing of a judgment of this Court

pursuant to FRAP 40.”. The Eighth Circuit allows reconsideration only of a procedural

motion decided by a clerk or single judge decision. The Eleventh Circuit excludes

from motions for reconsideration matters governed by FRAP 40, 11th Cir. R. 27-2,

and under FRAP Rule 40 states: “A petition for rehearing must be filed within 21 days

of entry of judgment, except that a petition for rehearing in a civil case in which the

United States or an officer or agency thereof is a party must be filed within 45 days of

entry of judgment. Judgment is entered on the opinion filing date.”. 11th Cir.R. 40-3.

Fed.Cir.R. 27(1) (“Review or Reconsideration of the Order of a Single Judge or Panel

of Judges”) states: “Except for a dispositive order issued by a panel, which time will

be governed by Federal Rule of Appellate Procedure 40(a) (1).”. D.C. Cir.R. 35 states:

“In all cases in which the United States or an agency or officer thereof is a party, the

time within which any party may seek panel rehearing or rehearing en banc is 45 days

after entry of judgment or other form of decision.”.

corresponding indication at all suggesting that in the Ninth Circutt,

FRAP Rule 40(a) (1)’s 45 days means 14 days or that FRAP 35 and

40 do not apply to writ petitions. Litigants do not know in advance

whether FRAP Rules 35 and 40 rehearing petitions are considered

motions to reconsider subject to the 14-day rule. No statement in the

Court of Appeals order denying the writ petition advised Petition-

ers that FRAP Rules 35 and 40 rehearing petitions had to be filed as

“motions for reconsideration” and within 14, not 45 days.!”

Petitioners’ rehearings petition was received within the time

established by published Ninth Circuit opinions interpreting

FRAP Rule 40, Bianchi v. Perry, 154 F.3d 1023, 1024 (9th Cir.

1998) (“Because an officer of the United States was a party, the

deadline for filing a petition for rehearing was 45 days from

April 9, under Federal Rule of Appellate Procedure 40(a).”), and

motions, Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995) (“To

the extent that Bonin’s motion requests correction of factual

statements contained in our previous opinion, it is procedurally

barred due to his failure to seek such corrections by means of a

timely petition for rehearing in accordance with Federal Rule of

Appellate Procedure 40.”).

The internally and outwardly inconsistent Cir.R. 27-10 creates

pernicious effects. Absent the peculiar and wrongheaded usurpation

of FRAP Rule 40, Petitioners’ rehearings petition would have been

considered by all judges in accordance with the Court of Appeal’s

established procedure for en banc consideration. Shortening by

two-thirds the time within which to petition for rehearing preju-

dices Petitioners by unfairly depriving them of any opportunity for

en banc review, and also prejudices government attorneys and the

solicitor general. Further, motions for reconsideration do not toll

time within which to petition for certiorari to this Court.'® The effect

17As one Ninth Circuit judge (whose name was apparently taken in vain here)

stated in a different context: “The result is nonsensical and certainly not “fully

intelligible to those [ ]familiar with the case”. Hart v. Massanari, 266 F.3d 1155,

1177-78 (9th Cir. 2001) (Kozinski, J.). .

18Petitions for rehearing authorized by Rule 40(a) “toll[ ] the start of the period

in which a petition for certiorari must be sought until rehearing is denied or a new

judgment is entered on the rehearing.” Jenkins, supra, (citing Dept. of Banking v.

Pink, 317 U.S. 264 (1942)).

of the 14-day rule applied to a rehearing petition filed with 45 days

potentially deprives Petitioners of their Statutory certiorari rights in

this Court, 28 U.S.C. § 2101, by eliminating tolling upon rehear-

ing. Denying any rehearing affects the appellate jurisdiction of this

Court. 28 U.S.C. § 2101.

C. AMOUNTS HERE TO FRAUD ON THE COURT

When docketing the Petition, Respondent Clerk impermissibly

split one original proceeding into two cases, filing the Petition

received January 30, 2004 on February 2, 2004 in docket number

04-70572 and filing Petitioners’ February 5, 2004 supplement to

their Petition on February 9, 2004 in docket number 04-70454. App.

P & Qat Illa & 113a. Respondent Clerk then demanded payment

of $255.00 in docket number 04-70572 as a filing fee apparently to

maintain the Petition she had filed therein as an appeal. App. G at

48a. ($255 is the statutorily prescribed filing fee for an appeal from

district court). When Petitioners refused to pay, having already paid

the $250.00 original proceedings filing fee on January 30, 2004 (app.

at 46a) that Respondent Clerk deposited in the court’s bank accounts

(app. at 12a), a clerk drafted an order for summary dismissal of Peti-

tioners’ original proceedings in docket number 04-70454 (app. F at

47a) that did not contain the Petition. After Petitioners complained,

a deputy clerk/motions attorney issued the February 25, 2004 order

(purportedly with the authority of a motions panel) faxing the

document to Petitioners the same day on February 25, 2004 (app.

at 22a), although what Petitioners had clearly sought in writing and

in subsequent telephone calls was a ruling on their motion to expe-

dite consideration, expressly provided for in Ninth Circuit’s rules

as a matter of right under 28 U.S.C. § 1657 (See Cir.R. 27-3) and

because Respondent District Court was poised to rule on the local

counsel withdrawal motion.

Fraud upon the court includes fraud by bribing a judge, or tam-

pering with a jury, or fraud by an officer of the court. See 12 James

Wm. Moore et al., Moore’ Federal Practice, | 60.21 [4]fa], q

60.21[4][a], [b] (3d ed. 1999) (“... a fraud perpetrated by officers of

the court so that the judicial machinery can not perform in the usual

manner its impartial task of adjudging cases that are presented for

adjudication.”). Clerks are officers of the court. 28 U.S.C. §§ 221,

222, 711, 715, & 951. False statements and willful concealment

SCO ri ses oem eesti name. <haecmecamsanc scenes

ae a a gg TN og ee ot Ree aa see a MEF PE, | EE a Yn Pee er

occurred in the Ninth Circuit by the clerks “processing” Petitioners’

papers for whom Respondent Clerk is responsible. The eiements of

fraud on the court are satisfied here. Concealing the original pro-

ceedings Petition and accompanying exhibits from Ninth Circuit

judges was deceptive. Representing a separate appeal was docketed

was false. The record indisputably and conclusively shows that: (1)

Petitioners filed no appeal in the district court and submitted only

one petition in the circuit court for filing as an original proceeding

received by the Clerk’s office on January 30, 2004 (App. at 10a); (2)

the case containing Petitioners’ Petition and exhibits was not “ter-

minated” until February 27, 2004 (App. Q at 114a); (3) Petitioners’

papers therein were never transferred to 04-70454 (id.); (4) the cir-

cuit court summarily denied any relief in the latter case on February

25, 2004 (App. F at 47a); and, (5) thereafter upon Petitioners’ com-

plaints (unanswered) their rehearings petition and motion to vacate

were summarily rejected (App. D at 28a). According to Respondent

Clerk Catterson’s docket, the only document in the file in 04-70454

when Petitioners’ mandamus and/or prohibition writs petition was

denied on February 25, 2004 was the February 4, 2004 two-page

supplement. The Petition and accompanying appendix of court and

administrative record excerpts filed in accordance with circuit rules

were buried in 04-70572. App. Q at 113a. The terms “shell game”

and “hide and seek” spring to mind here. Denying as untimely

rehearings petition that assert fraud on the court using an illegal 14-

day rule appears retaliatory and designed to cover-up misconduct.

There is no justification for this conduct. Although Petitioners’

attorney Ditton wrote and sent three letters to the clerks, including one

personally addressed to Respondent Catterson, none were answered

or otherwise responded to, and any “mistake” was never corrected

after abundant notice and time. These acts prejudiced Petitioners.

Supra, at pp. 10, 13 & 16. Bifurcation of the original proceeding

deprived reviewing judges of almost all of Petitioners’ papers in the

reviewed case. Little imagination is required to picture circumstances

where judges presented with a separate appeal and only two pages of

a supplemental pleading deny mandamus routinely. Bauman, at 656.

The false representation of two cases instead of one is also material

because numbers of cases and dispositions are reported to the Admin-

istrative Office of the U.S. Courts and may be reported to Congress.

The February 25, April 5, and May 17, 2004 orders amount

to fraud on the-court demanding equitable intervention from this

Court, or at least an order directing the Ninth Circuit to confront

and decide the issue forthrightly, i.e., to clean up its own house. In

Hazel-Atlas Co. v. Hartford Co., 322 U.S. 238 (1944), this Court

stated the importance of exercising this equitable power:

Furthermore, tampering with the administration of justice

in the manner indisputably shown here involves far more

than an injury to a single litigant. It is a wrong against the

institutions set up to protect and safeguard the public, insti-

tutions in which fraud cannot complacently be tolerated

consistently with the good order of society. Surely it cannot

be that preservation of the integrity of the judicial process

must always wait upon the diligence of litigants. The public

welfare demands that the agencies of public justice be not

so impotent that they must always be mute and helpless vic-

tims of deception and fraud.

Id. at 246. Denial of any relief to Petitioners as reflected in the May

17, 2004, April 5, 2004 and February 25, 2004 orders is manifestly

unconscionable. Hazel-Atlas, supra, at 244-45. The false statements

regarding presence of an appeal and apparent willful concealment

of the Petition and Appendix was aimed at the court and relief is

necessary to prevent a “grave miscarriage of justice”. Jd. at250 (“the

Circuit Court on the record here presented had both the duty and

the power to vacate its own judgment and to give the District Court

appropriate directions.”); United States v. Deggerly, 524 U.S. 38,

47 (1998); Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991)

(inherent “power to vacate judgments on proof that a fraud on the

court has been committed.”).

Il. THE NINTH CIRCUIT’S BAUMAN GUIDELINES

CONFLICT WITH 28 U.S.C. § 1651 WHEN USED HERE:

The Ninth Circuit denied Petitioners any relief stating only Peti-

tioners had “not “demonstrated that this case warrants the interven-

tion of this court by means of the extraordinary writ of mandamus”

citing Bauman v. United States, 557 F.2d 650 (9th Cir. 1977). App. F

at 47a. Since Bauman is the cited authority for denying Petitioners’

_writs, Bauman must supply the court’s reasoning through applica-

tion of each of guidelines enunciated therein to justify exercising

sound discretion to deny Petitioners any relief. In this case, how-

ever, resort to Bauman amounts to a complete failure to exercise

sound discretion in accordance with the usages and principles of

law. Relief from this Court is therefore necessary and appropriate.

R.Sup.Ct. Rule 20.1.

Bauman sets forth five guidelines limiting exercise of the Ninth

Circuit’s sound discretion to grant mandamus relief:

(1) The party seeking the writ has no other adequate means,

such as a direct appeal, to attain the relief he or she desires.

(2) The petitioner will be damaged or prejudiced in a way not

correctable on appeal...(3) The district court’s order is clearly

erroneous as a matter of law. (4) The district court’s order is

an oft-repeated error, or manifests a persistent disregard of

the federal rules. (5) The district court’s order raises new and

important problems, or issues of law of first impression.

557 F.2d at 654-55. The Ninth Circuit weighs the five factors

together. Jd. at 655; Washington Pub. Util. Group v. United States

District Court, 843 F.2d 319, 325 (9th Cir. 1987).

The first Bauman guideline would apply only if the Ninth Cir-

cuit was influenced by a pending docketed appeal (discussed supra

in part I.C as fraud on the court), although not by Petitioners, but

wrongfully by Respondent Clerk, apparently practicing law without

a license. See Matter of Sandahl, 980 F.2d 1118 (7th Cir. 1992) (lack

of an adequate remedy by way of direct appeal or otherwise amounts

to irreparable harm). The second guideline was clearly addressed

in the Petition and was uncontested in the circuit court. The third

guideline was satisfied with respect to the Respondent District Court

who prioritized a local counsel withdrawal motion over deciding the

preliminary injunction motion in violation of 28 U.S.C. § 1657, that

would have obviated local counsels’ withdrawal motion, and oth-

erwise obviously could not apply to the federal respondents. If the

Ninth Circuit meant to say that because there was no district court

order denying the preiiminary injunction motion this third guideline

could not be satisfied, of course that would be unsound per se. The

fourth guideline is similarly inapplicable and in any event was satis-

fied by Respondent District Court’s persistent refusal to rule, at least

on a daily basis after September 25, 2003 when defendants stated

they had no further reply.!® The fifth guideline is also the Ninth

Circuit’s own creation and hardly justifies denying Petitioners any

relief. The necessary assumption from the February 25, 2004 denial

order “weighing the [Bauman] factors together”— that a district

court’s refusal to rule or federal officers’ violations of the Constitu-

tion is not “new and important” not only denigrates district courts

and federal agencies, it is also absurdly unsound considering the

purposes of extraordinary writs.

The traditional test for granting all writs relief was recently

restated in Cheney v. U.S. District Court, 542 U.S. __ (2004):

As the writ is one of “the most potent weapons in the judi-

cial arsenal,” Jd., at 107, three conditions must be satisfied

before it may issue. Kerr v. United States Dist. Court for

Northern Dist. of Cal., 426 U. S. 394, 403 (1976). First,

“the party seeking issuance of the writ [must] have no other

adequate means to attain the relief he desires,” ibid—a

condition designed to ensure that the writ will not be used

as a substitute for the regular appeals process, Fahey, supra,

at 260. Second, the petitioner must satisfy “ ‘the burden of

showing that [his] right to issuance of the writ is “clear and

indisputable.” ’” Kerr, supra, at 403 (quoting Banker’s Life

& Casualty Co., supra, at 384). Third, even if the first two

prerequisites have been met, the issuing court, in the exer-

cise of its discretion, must be satisfied that the writ is appro-

priate under the circumstances. Kerr, supra, at 403 (citing

Schlagenhauf v. Holder, 379 U. S. 104, 112, n. 8 (1964)).

These hurdles, however demanding, are not insuperable...

Slip op. at 9-10. Instead of applying the traditional test, the Ninth

Circuit mechanistically used an inapplicable five-part test throw-

ing up artificial barriers to litigants seeking relief from oppressive

governmental acts and a lower court of right and justice’s adamant

refusal to rule. See Maloney v. Plunkett, 854 F.2d 152, 155 (7th Cir.

1988) (writ’s “proper use cannot be wholly reduced to formula”). Of

the five Bauman guidelines, only the first conforms to the traditional

'9Petitioners interpreted this as meaning there had to be other violations by

Respondent District Court and Petitioners then knew of no such violations.

test as enunciated by this Court. See Rees v. United States District

Court, 572 F.2d 700, 702 & n.8 (9th Cir. 1978) (noting that the only

Bauman guideline the Supreme Court identifies as a condition for

mandamus relief is an unavailable or inadequate ordinary appeal

after final disposition of the case in the district court). The Bauman

formula applied here effectively eliminates any consideration of

whether a petitioners’ right to relief is “clear and indisputable” or

“appropriate under the circumstances”.”°

The appellate court refused even to consider prohibiting Interior

officials acting without any statutory authority and in conflict with

Congress’s exclusive grant of all decisionmaking powers Over avia-

tion safety, commerce, and economic regulation to Transportation,

although the Interior officials’ u/tra vires acts deprived Mr. Arment

and Research Air of their constitutional due process nights (that

Transportation provides) .2! That affected circuit court prospective

and concurrent or exclusive statutory judicial review jurisdiction

under the Federal Aviation Act and Independent Safety Board Act.

49 U.S.C. § 46110 & § 1153.”

“{W]hether the legality of an act of the head of a department be

examinable in a court of justice or not, must always depend on the

nature of the act.” Marbury v. Madison, 5 U.S. 137, 165-66, 170

(1803) (distinguishing between “acts [which] are only politically

examinable,” and “acts [which the official] is directed by law to do

To Petitioners’ knowledge, the Court has not previously ruled on the Ninth

Circuit’s Bauman formula. See Jn re Cement, 459 U.S. 1191 (1983), aff’g for lack

of a quorum, 688 F.2d 1297 (9th Cir. 1982), .

"This is not the first time Interior has proclaimed that over aviation matters

they are a “law unto themselves”. See Dynamic Aviation v. Interior, 898 F. Supp.

11 (D.D.C. 1995) (involving OAS pilot card and denying Interior’s motion to dis-

miss).

“Department of Transportation provides full due process protections to pilots

and airlines accused of federal aviation regulation violations. See e.g., Jifry v.

FAA , 370 F.3d 1174 (D.C.Cir. 2004) (Homeland Security department’s terrorist

designation subordinate to Transportation's final authority over pilot certificates);

Coalition of Airline Pilots v. FAA, 370 F.3d 1184 (D.C.Cir. Jun. 14, 2004) (civilian

pilots); Zephyr Aviation, L.L.C. v. Dailey, 247 F.3d 565 (Sth Cir. 2001) (“avail-

ability of the FAA’s appeal structure to remedy that deprivation after the fact

provided sufficient process to protect Zephyr’s procedural due process rights.”);

GATX/Airlog Co. v. United States, 234 F.3d 1089, n.4 (9th Cir. 2000) (air carrier

had remedy to challenge merits of FAA airworthiness directive including judicial

[and which affect] the absolute rights of individuals”— the latter

are answerable by a writ of mandamus); Norton v. Southern Utah

Wilderness Alliance, 542 U.S. _ (Jun. 14, 2004) (comparing APA

§ 706(1) to 28 U.S.C. § 1651(a)). APA § 706(1) applies to original

proceedings in the circuit courts of appeal. Relief was required there

because the federal agency and officers acted without any statutory

authority. Leedom v. Kyne, 358 U.S. 184, 190 (1958) (injunctive

remedy to enforce a “clear” statutory right violated by an agency

was available in federal court because the Court “cannot lightly infer

that Congress does not intend judicial protection of rights it confers

against agency action taken in excess of delegated powers.”); Lar-

son v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 691

(1949) (an executive officer may be enjoined from continuing to

enforce a constitutionally infirm statute or regulation).

Formalistic use of the five Bauman guidelines as a steep thresh-

old Petitioners could never surmount also conflicts with other circuit

courts of appeal. See Hunt v. Commodity Futures Trading Comm.,

591 F.2d 1234, 1236 (7th Cir. 1979) (“a court will ... intervene

immediately”); Rhode Island Dept. of Env. Mgt. v. United States,

304 F.3d 31, 44-45 (ist Cir. 2002) (“Sn clear cases, the petitioning

party could also seek a wnit of prohibition as necessary or appropri-

ate in aid of the appeals court’s jurisdiction.”) (citations omitted);

In re Perry, 859 F.2d 1043, 1046-50 (1st Cir. 1988) (ALJ’s interfer-

ence with petitioners’ First Amendment rights so far “exceed[ed]

the proper scope of [his] authority as to constitute a usurpation of

power”, granting prohibition). Justifying abstention from All Writs

review in court of appeals); Hawaii Helicopter Operators Ass'n v. FAA, 51 F.3d

212, 213 (9th Cir. 1995) (special operating rules for aircraft operators in Hawaii);

Foster v. Skinner, 70 F.3d 1084 (9th Cir. 1995) (clear authority establishes the FAA

Administrator, in his discretion, may suspend and revoke pilot certificates); Las

Vegas Hacienda, Inc. v. CAB, 298 F.2d 430, 432 (9th Cir.), cert denied, 369 U.S.

885 (1962) (economic regulation). Interior provides no such due process. Judicial

review of Transportation final orders is reserved to the circuit court of appeals. 49

U.S.C. § 46110. Similarly, setting standards and defining terms for reporting avia-

tion incidents, and when and how such reports are rendered, are exclusively within

the jurisdiction of the National Safety Transportation Board, 49 U.S.C. § 1116(b),

with judicial review, again, exclusively at the circuit courts of appeals. 49 U.S.C.

§§ 1153 & 1131(a) (1) (A) & (F). See Gibson v. NTSB, 118 F.3d 1312, 1314-15 (9th

Cir. 1997) (per curiam); Graham v. Teledyne-Continental Motors, 805 F.2d 1386,

1389 (9th Cir. 1986).

Act jurisdiction using Bauman demonstrates a contracted view of

the Court of Appeal’s original, appellate, concurrent and prospec-

tive jurisdiction. Compare American Rivers v. FERC, 170 F.3d 896,

897 (9th Cir. 1999) (denying relief because “appellate jurisdiction is

dependent on the issuance of an order by FERC” and the agency’s

“{mlJere inaction. ..cannot be transmuted by petitioners into an order

rejecting their petition.”) with Jn re American Rivers and Idaho

Rivers United v. FERC, _ F.3d __ (D.C. Cir. Jun. 22, 2004) (We

have jurisdiction to entertain the request in order to safeguard our

prospective jurisdiction under the Federal Power Act, 16 U.S.C. §

8251(b)”, same petitioner earlier denied by Ninth Circuit).

A. TONOTCOMPEL PRELIMINARY INJUNCTION

RULING

Plaintiffs have a “clear and indisputable right” to the relief sought.

Kerr, supra; Mallard v. United States District Court, 490 U.S. 296,

309 (1989) (“District Court plainly acted beyond its “jurisdiction”

as our decisions have interpreted that term, for, as we decide today,

§ 1915(d) does not authorize coercive appointments of counsel.”);

Roche v. Evaporated Milk Assoc., 319 U.S. 21, 25 (1943) (“Other-

wise the appellate jurisdiction could be defeated and the purpose of

the statute authorizing the writ thwarted by unauthorized action of

the district court obstructing the appeal.”). Courts must decide cases

according to statutes enacted by Congress. United States v. Schooner

Peggy, 5 U.S. (1 Cranch) 103, 109 (1801); Miller v. French, 530 U.S.

327, 344-47 (2000). Refusal to exercise discretion compelled by stat-

ute is a “clear abuse of discretion.”. Bankers Life & Casualty Co. v.

Holland, 346 U.S. 379, 383 (1953); In re Vargas, 723 F.2d 1461, 1467

(10th Cir. 1983), cert. denied, 469 U.S. 819 (1984) (The right to a writ

is “clear and indisputable” when the petitioner can show “a judicial

usurpation of power or a clear abuse of discretion”, citing Mallard).

Refusal to decide deprives Petitioners of their FRCP 65 remedy,

their 28 U.S.C. § 1657 right of priority (App. AA at 149a), and

their appeal rights under 28 U.S.C. § 1291. See Williams v. Simons,

355 U.S. 49 (1957) (per curiam) (citing § 1657 and discussing that

Court’s order to show cause why writ should not issue for district

court’s refusal to decide state’s preliminary injunction motion). See

also Morales v. Trans World Airlines, Inc., 504-U.S. 374, 381 (1992)

(“When enforcement actions are imminent ... there is no adequate

remedy at law.”); United States v. Oakland Cannabis Buyers’ Coop.,

532 U.S. 483, 497-98 (2001); American Bioscience, Inc. v. Thomp-

son, 269 F.3d 1077 (D.C. Cir. 2001) (“But, whether or not appellant

has suffered irreparable injury, if it makes out its case under the APA

it is entitled to a remedy.”) (footnote omitted).23

By using Bauman guidelines to deny clear and indisputable rights

to mandamus and prohibition relief the Ninth Circuit stood the All

Writs Act standard on its head. This crabbed interpretation of all writs

discretion that eliminates judicial power to compel a trial court “to

exercise its authority when it is its duty to do so” directly conflicts

with Ex Parte Bradstreet, 32 U.S. (7 Pet.) 634, 647 (1833); Life &

Fire Ins. Co. v. Wilson, 33 U.S. (8 Pet.) 291, 301-304 (1834); Ins. Co.

v. Comstock, 83 U.S. 258, 270-71 (1872); McClellan v. Carland, 217

US. 268, 279-282 (1910); LaBuy v. Howes Leather Co., 352 U.S. 249

(1956); see Thermtron Prod,, Inc. v. Hermansdorfer, 423 U.S. 336,

352 (1976); Colorado River Water Conserv. Dist. v. United States, 424

U.S. 800, 813 (1976); see also Cromoglass Corp. v. Ferm, 500 F.2d

601 (3rd Cir. 1974) (“If the Rule 65 hearing resulted in a denial of an

injunction, Cromaglass indeed would have an appealable order.”).

Indisputably, the district court’s refusal to rule affects the circuit

court’s appellate jurisdiction. “It is of the highest importance to a

proper review of the action of a court in granting or refusing a pre-

liminary injunction that there shouid be fair compliance with Rule

52(a) of the Rules of Civil Procedure.” Mayo v. Lakeland Highlands

23In any event, Mr. Arment and Research Air satisfied the irreparable injury

standard. See e.g., Reeve Aleutian Airways, Inc. v. United States, 889 F.2d 1139,

1144 (D.C. Cir. 1989) (stigmatization from allegations of unsafe aircraft); Coteau

Properties Co. v. Interior, 53 F.3d 1466 (8th Cir. 1995) (delay, denial or suspen-

sion of contractor’s Interior mining permits “would clearly cause Coteau serious

difficulties in meeting its contractual obligations, if not make it impossible to meet

them.”); Mendenhall v. NTSB, 92 F.3d 871, 876 (9th Cir. 1996) (“Contrary to the

FAA’s assertions, ten days without a license is not ‘a reasonable period of time,’

when one’s livelihood depends upon it.”); Walters v. Reno, 145 F.3d 1032 (9th

Cir. 1998) (if prejudice was required plaintiffs due process violation showing suf-

ficed); Stidham v. Peace Officer Standards & Training, 265 F.3d 1144 (10th Cir.

2001) (ultra vires acts effectively revoking peace officer’s certificate, foreclosing

employment opportunities by circulating unproven damaging information); Sloan

v. HUD, 231 F.3d 10 (D.C. Cir. 2000) (economic losses, professional indignities,

and injuries to reputations by official record suggesting “’serious irregularities’ in

their business dealings with the Government’).

Canning Co., 309 U.S. 310, 316 (1940). There was no such compli-

ance in this case. Nor is there anyway to correct the omission on

appeal. See Casad v. HHS, 301 F.3d 1247, 1254 (10th Cir. 2002)

(rejecting appeal for § 1657(a) violation; “The district court has

resolved the case; this court can provide no relief for any alleged

delay.”). Given the lower and circuit courts’ rulings, through no fault

of their own, Petitioners are placed in judicial purgatory for there is

no appealable order in the underlying case.

B. TONOT RESTRAIN FEDERAL OFFICERS ACTING

Ultra vires AND UNCONSTITUTIONALLY

Mr. Arment and Research Air sought injunctive relief in district

court against the federal defendants on constitutional and APA

grounds. App. O at 82-110a. They claimed that Interior had no statu-

tory authority to unilaterally apply the Federal Aviation Regulations

to ground them frorn civil commercial aviation operations. 49 U.S.C.

§ 40101(a) (1)-(4) (c) & (d) (84a & 93a); United States v. Varig Air-

lines, 467 U.S. 797, 813-14 (1984) (Federal Aviation Act vested in

DOT “all regulatory authority over aviation safety”).*4 Their night to

equitable relief against the federal officer respondents was (and is)

clear and indisputable. Philadelphia Co. v. Stimson, 223 U.S. 605, 620

(1912); Stark v. Wickard, 321 U.S. 288, 310 (1944); Bell v. Hood, 327

U.S. 678, 682-83 (1946); Joint Anti-Fascist Ref. Comm. v. McGrath,

341 U.S. 123, 161, 173 (1951); see Greene v. McElroy, 360 U.S. 474

(1959) (reversing ultra vires revocation of a federal security clearance

permitting a professional aeronautical engineer to work on classified

government aircraft projects); Bell v. Burson, 402 U.S. 535 (1971)

‘cannot suspend driver’s license without a hearing on fault); Barry v.

Barchi, 443 U. S. 55, 63-64 (1979) (state statute without prompt post-

*See DOT v. Public Citizen, 541 U.S. _, (Jun. 14, 2004); Arapahoe Cnty. Pub.

Airport Auth. v. FAA, 242 F.3d 1213 (10th Cir. 2001) (City airport authority’s pro-

claimed “safety” and “civil aviation needs” a factual matter for the FAA); Tempe

v. FAA, 239 F. Supp.2d 55 (D.D.C. 2003) (City could not have violated federal law

when FAA, not City, had “obligation under federal law to perform a conformity

determination”); Fairview v. Transportation, 201 F. Supp.2d 64 (D.D.C. 2002)

(claim that operation of an aircraft below 1,000 feet over any congested area of a

city, town, or settlement prohibited by 14 C.F.R. § 91.119 “vested exclusively in

the courts of appeals”); United States v. Red Frame Parasail, 160 F. Supp.2d 1048

(D.Ariz. 2001) (accepting United States’ position FAA regulates airspace below

500 feet AGL); supra, n. 22.

deprivation hearing unconstitutional as applied to racetrack trainer

susperded for 15 days).

Respondent Interior’s sanctions are plainly illegal and proffered

contract defenses inapplicable. A federal agency may not punish a

government contractor through the guise of contract administration.

L.P. Steuart & Bros., Inc. v. Bowles, 322 U.S. 398 (1944) (govern-

ment contracting suspension cannot be used as punishment); Com-

mercial Drapery Contr., Inc. v. United States, 133 F.3d 1, 6 (D.C. Cir.

1998) (“An agency may not impose even a temporary suspension

without providing the ‘core requirements’ of due process: adequate

notice and a meaningful hearing.”); see Custer Cnty. Action Assoc.

v. Garvey, 256 F.3d 1024, 1042 (10th Cir. 2001) (“Unauthorized”

conduct in the takings context equates to the ultra vires actions of an

agency, i.e., action explicitly prohibited or outside the normal scope

of agency responsibilities.”).

FAA’s authority is paramount.?5 Varig, supra. “[A]n agency may

not bootstrap itself into an area in which it has no jurisdiction.” Adams

Fruit Co. v. Barrett, 494 U.S. 638, 650 (1990) (citing Federal Mari-

time Comm'n. v. Seatrain Lines, Inc., 411 U.S. 726, 745 (1973); SEC

v. Sloan, 436 U.S. 103, 119 (1978) (same); cf Adamo Wrecking Co.

v. United States, 434 U.S. 275, 288, n.5 (1978) (rejecting “Admin-

istrator’s unexplained exercise of supposed authority”)). Even when

Congress expressly delegates authority to Interior involving aviation,

Congress provides FAA has the final authority. See U.S. Air Tour

Assoc. v. FAA, 298 F.3d 997 (D.C. Cir. 2002); Grand Canyon Air

Tour Coal. v. FAA, 154 F.3d 455, 468 (D.C. Cir. 1998). Agency action

taken without statutory authority is plainly illegal. American School

of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110 (1902); Larson,

supra, 337 at 701-702; Oestereich v. Selective Serv. Sys. Local Bd.

No. 11, 393 U.S. 233, 237-38 (1968) (“We deal with conduct of a

local Board that is basically lawless.”); Stark, supra, 321 at 310-

11; Harmon v. Brucker, 355 U.S. 579, 581-82 (1958) (per curiam);

Louisiana Pub. Serv. Comm. v. FCC, 476 U.S. 355, 374 (1986) (“an

agency literally has no power to act ... unless and until Congress con-

fers power upon it.”); Bowen v. Michigan Academy of Family Physi-

2SFAA’s annual and continual certification of Mr. Arment as a safe pilot and

Research Air’s part 135 operating certificate constitutes FAA’s final binding deter-

mination in this matter that Interior illegally refuses to accept.

cians, 476 U.S. 667, 681 (1986); see Dart v. United States, 848 F.2d

217, 224 (D.C. Cir. 1988) (“When an executive acts ultra vires, courts

are normally available to reestablish the limits on his authority, ...the

Veterans’ Administrator cannot issue oil drilling permits—nor can the

Secretary of Labor rescind television licenses—and expect to escape

judicial review by hiding behind a finality clause.”).

Petitioners’ right to relief under the APA was equally clear. 5

U.S.C. §§ 703, 706; TVA v. Hill, 437 U.S. 153, 194 (1978) (“Once

Congress, exercising its delegated powers, has decided the order

of priorities in a given area, it is for the Executive to administer

the laws and for the courts to enforce them when enforcement is

sought.”, citing Marbury, supra, 1 Cranch at 175). See United States

v. Seatrain Lines, 329 U.S. 424, 432-33 (1947) (no authority to alter

carriers certificate fixing terms and conditions); CAB v. Delta Air

Lines, Inc., 367 U.S. 316, 324-25 (1961) (a certificated commercial

airline carrier’s operations could not be curtailed without notice or

hearing because the aviation statute clearly provided for notice and

hearing”); Oceanair of Florida » DOT. 876 F.2d 1560 (11th Cir.

1989) (no regulatory authority to revoke air carrier’s certificates

without hearing on the record).

C. TONOT REVIEW LOCAL ADMISSION RULES

In denying any relief upon Petitioners’ challenges to local admis-

sion rules, the Court of Appeals apparently determined failure to

exercise discretion in determining whether to waive L.R. 83.3(a)

or to decide the Equal Protection Clause challenge pursuant to L.R.

83.3(e) (2) (A) & (B) was either not clear error or not “new and

important.” L.R. 83.3(e) (2) itself requires determination of the

constitutional issue. App. W at 146a (“Unless authorized by the

Constitution of the United States or acts of Congress,”). Respondent

District Court’s reasoning that he had no authority to waive his rules

is clear error. He clearly had such authority. Gerritsen v. Consulado

General de Mexico, 989 F.2d 340, 342, n.1 (9th Cir. 1993).

“Admission to practice law before a state’s courts and admis-

sion to practice before the federal courts in that state are separate,

independent privileges.” Theard v. United States, 354 U.S. 278,

281 (1957)); Brown v. Smith, 222 F.3d 618 (9th Cir. 2000) (citing

Theard). “[W]hen a state licensing law excludes a lawyer from prac-

tice that federal rules expressly allow, the two rules do conflict, and

the state law must give way.” Sperry v. Florida ex rel. Florida Bar,

373 U.S. 379, 383-385 (1963) (a state has no power of review over

federal determination of practice authority). States cannot impose

licensing requirements on federal government contracts. Leslie

Miller, Inc., v. Arkansas, 352 U.S. 187 (1956) (cited in Sperry, supra,

373 U.S. at 403). See Rittenhouse v. Delta Improvement, Inc.), 291

F.3d 925 (6th Cir. 2002) (Texas bar member a resident of Wisconsin

practicing bankruptcy law not admitted to the Michigan bar eligible

to practice in Michigan federal district court notwithstanding a dis-

pute with Michigan state bar. He had “a valid state source of the

authority to practice law: he is properly licensed by Texas.”’).?6

Petitioners Arment and Research Air complain about their attor-

ney’s exclusion when the government’s attorney is not subject to the

same admission requirements that discriminate in violation of the

Equal Protection Clause. Respondent District Court improperly based

his denial on Ditton not having passed the Montana Bar Examina-

tion.2”7 See Frazier v. Heebe, 482 U.S. 641, 646 (1987) (local rule

requiring members of Louisiana state bar either reside or maintain an

office in Louisiana “unnecessary and irrational”). Montana resident

attorneys who have not passed any bar examination are admitted to

practice automatically if they represent the federal government while

Mr. Ditton who has passed a bar examination (Virginia Feb. 1982,

during law school, and who was an Army JAG) is absolutely denied

admission. As applied to Petitioners as a class of one, Respondent

26Private attorneys practicing federal government contracts law are not required

to be members of state bars where they live or have an office. See, e.g., COFC, Rule

81(b); ASBCA (1 July 1997), Rule 26; GAO Rules of Practice, 4 C.F.R § 21.

27Until after 1980, law school graduates of the University of Montana were

admitted to the Montana State Bar without passing any multi-state or state bar

examination. The justification then given as a rational basis for the “diploma privi-

lege” was state court judges’ “familiarity” with the state law school. See Goetz v.

Harrison, 154 Mont. 274, 280-281, 462 P.2d 891 (1969) (denying Yale law school

graduate admission); Huffman v. Montana Supreme Court, 372 F. Supp. 1175

(1974) (denying U. of Chicago law school graduate admission). That rationale

was discarded in Matter of Bar Examination, 187 Mont. 159, 187, 609 P.2d 263

(1980) (“The wrong people are making threshold decisions that have the effect

of transferring control of the admission of lawyers to the Bar away from the court

of last resort, ...”). Nonetheless, diploma privileged attorneys were grand-fathered

into the federal bar.

District Court discriminates irrationally against him. See Willowbrook

v. Olech, 528 U.S. 562 (2000). Denying Mr. Ditton admission in

this case because he has not taken and passed the Montana state bar

examination is irrational when federal government contracts, consti-

tutional, and administrative law are not tested by that examination

differently than any other state’s bar examination. Those subjects, if

tested, are done so uniformly on a national basis by the multi-state bar

examination that he already has passed.

CONCLUSION

Through enforcement of a new strange little rule proclaiming supe-

riority over nationwide federal rules of appellate procedure endorsed

by this Court and Congress, contrary to other federal statutes and

all other circuits, the Court of Appeals abdicated from considering

matters of substantial, significant national importance that irrepara-

bly injures Petitioners. The record shows untoward involvement by

clerks/motions attorneys that amount to fraud on the court. The Ninth

Circuit’s Bauman formula as applied for all writs relief imposes con-

ditions violating the Court’s precedent and decisions of other circuit

courts of appeal. Federal officers acted without any statutory authority

and in derogation of the Transportation agencies having exclusive and

final authority in matters of aviation safety, regulation and commerce.

They violated Petitioner Arment and Research Air’s constitutional

rights to due process of law. The district court refuses to rule and the

circuit court refuses to protect its appellate jurisdiction. This is not

justice. Petitioners respectfully request that for the foregoing reasons

this petition should be granted forthwith.

Respectfully submitted,

RESEARCH AJR, INC.,

CHARLES R. ARMENT and

MICHAEL H. DITTON.

by:

/s/Michael H. Ditton

Counsel of Record

2210 Bridger Drive

Bozeman, Montana 59715

(406) 587-7386

August 2004

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Circuit No. 04-70454

RESEARCH AIR, INC.; ET AL.,

Petitioners,

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

MONTANA (BUTTE),

Respondent,

HONORABLE GAIL A. NORTON, Secretary of the Interior;

et al.,

Real Parties in Interest.

D.C. No. CV-03-00054-RFC

ORDER

[Filed May 17, 2004]

Before: KOZINSKI and PAEZ, Circuit Judges

Petitioners’ motion to vacate the Clerk’s April 5, 2004, order

and file petitioners’ petition for rehearing and rehearing en banc

is denied. Any request for rehearing of an order filed by a motions

panel must be filed within 14 days from the date of the motions

panel order. See 9th Cir. R. 27-10; see also Circuit Advisory Com-

mittee Note to Rules 21-1 to 21-4.

No motions for reconsideration, rehearing, clarification, stay of

the mandate, or any other submissions shall be filed or entertained

in this closed docket.

APPENDIX B

PETITIONER’S LETTER TO CLERK OF THE COURT

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

April 28, 2004

Cathy A. Catterson

Clerk of the Court

United States Court of Appeals

for the Ninth Circuit

P.O. Box 193939

San Francisco, California 94119-3939

Re: Jn Re Research Air, Inc. (9th Cir. No. 04- 70454)

Dear Ms. Catterson:

] am attorney for Petitioners in a case before the Court. Petitioners

invoked the Court’s jurisdiction by submitting a Petition for Writs

of Mandamus and/or Prohibition to the Court in overnight mail on

January 29, 2004. Petitioners included payment of the $250.00

original proceedings filing fee. Along with their Petition, Petitioners

submitted a Motion For Expedited Consideration pursuant to Circuit

Rules 27-12, 27-3, and 34-3(5), stating as grounds, inter alia, the

District Court’s refusal to rule on the preliminary injunction motion

and giving priority to a local counsels’ motion to withdraw, schedul-

ing a hearing on that motion for January 30, 2004.

Petitioners and I complain about several acts occurring in your

office by deputy clerks relating to the above-styled proceedings.

These acts involve fabricating a nonexistent case, demanding an

additional $255.00 from Petitioners as a “filing and docketing fees,”

dismissing the entire Petition within two hours of my telephone calls

inquiring and complaining about the nonexistent case and demand

for another docketing fee, and then wrongly dismissing our Petition

for Rehearing and Suggestion for Rehearing En Banc as untimely

without any lawful authority.

Petitioners spent considerable time, effort and money sending their

Petition for Writs of Mandamus and Prohibition with accompany-

ing Record Excerpts of Administrative and Court Proceedings to

the Court in overnight mail on January 29, 2004 so that the Petition

would arrive during the morning of January 30, 2004. There was a

hearing scheduled for 2:00 p.m. MST that day in the district court.

My check in the amount of $250.00 for the filing fee was enclosed and

my cover letter clearly identified the Petition as an original proceed-

ing. The shipping receipt and package tracking report shows delivery

by UPS to the Court on January 30, 2004 at 8:48 a.m. PST. (Encl. 1).

The Petition, however was not filed until February 2, 2004, accord-

ing to a docketing statement dated February 2, 2004 bearing deputy

clerk Verna Travis’s name. The Court’s docket number is stated as 04-

70454. The following day I received a receipt from the Court signed

by deputy clerk Richard Rhodes showing the Court received and

deposited Petitioner’s payment of the $250.00 original proceedings

docketing fee on January 30, 2004.! (Encl. 2). In other words, your

office took and banked our money on January 30th, refused to file our

papers, and wasted our money spent on overnight delivery. Petitioners

would not have spent the time, effort and money to overnight mail the

Petition to the Court if they had known the Court would not file the

Petition until three days later. As you know your clerks are respon-

sible for docketing the case “immediately” upon receipt.

On February 13, 2004 I received in U.S. mail a docketing state-

ment from the Court bearing deputy clerk Teresa Mitchell-Bell’s

name. This statement is dated February 6 and postmarked Febru-

ary 10, 2004. I thought this was a correction to the case caption

(“USDC-MOB?” for “USDC-MBU”) and did not notice the different

docket number. Although this statement refers to the Petition for

Writs of Mandamus and/or Prohibition, it lists a different docket

number: 04-70572. Petitioners, however, only submitted one peti-

tion to the Court.

On February 23, 2004 I received in U.S. mail from the Court an

order purporting to dismiss 04-70572 unless within 14 days Peti-

tioners paid a $255.00 filing fee. The order is dated as filed February

'This receipt shows allocation of Petitioners’ filing fee to two Ninth Circuit

financial accounts. I do not know whether that was proper or not.

17, 2004 and is postmarked that same day. Although the order refers

to “this petition for mandamus”, the stated $255.00 “filing and dock-

eting fees” is only for appeals. Ila Deiss, motions attorney/deputy

clerk, signed this order. I called Ms. Deiss on February 24, 2004

and informed her there was no appeal, there was only one original

proceeding for mandamus and prohibition, and Petitioners had paid

the $250.00 original proceedings docketing fee. 1 had spoken on

February 23, 2004 with Jane __, a deputy clerk in original proceed-

ings, and with her permission faxed her a copy of the Court filing fee

receipt. I also asked her why two different docket numbers appear for

one petition. (Encl. 3). I received no response to this letter. Accord-

ing to information I reviewed from the Administrative Office of the

United States Courts, the Ninth Circuit is the busiest federal circuit

court in the nation. (The Montana district court, on the other hand,

is one of the least busiest federal district courts). I am surprised that

the Court would countenance fabricating a case to increase the num-

ber of cases pending before it, particularly since this information is

conveyed to Congress. Further, when I first called the clerk’s office

on February 23, 2004, I spoke with deputy clerk (Roberta Bradley?)

and was told the assigned clerk was sick that day. That makes three

different deputy clerks and three other motions attorney/deputy

clerks assigned to one original proceeding.

Ms. Deiss gave me Leslie Hale’s name as the motions attorney

assigned to 04-70454 and Ms. Hale returned my telephone call to

her on February 25, 2004. She stated to me that the Court would not

consider the motion for expedited consideration (that cites 28 U.S.C.

§ 1657) until March 15, 2004. Inasmuch as the District Court had

issued an order dated February 2, 2004 stating Petitioners below had

to notify the court within 20 days whether they intended to proceed

pro se; I told her Petitioners wanted the Court to order the District

Court to take no further action in the case pending disposition of the

Petition other than to rule on the preliminary injunction motion. She

?The Court’s docket sheet strangely refers to my residence state as “MO” pre-

sumably meaning Missouri, instead of Montana, and there is no obvious reason how

such an error was made. For your information, in 2000, a Virginia state employee

official sent to the state of Montana an affidavit falsely stating my birthplace as

“Terry, MO” instead of Terry, MT. Further, although AUSA Darragh is listed as

making an appearance, Petitioners have never been notified of that.

emphasized that we had filed the Petition on February 2, 2004, when

in fact clerks, not Petitioners, delayed filing the Petition until then.

(The District Court’s order is dated February 2, 2004 and occurred

after Petitioners sent the Court, and delivered to Respondent District

Court, their Petition. On February 5, 2004 Petitioners sent the Court

a copy of this order as an addendum to their Petition.). Ms. Hale

then said another motions attorney would handle this matter and call

me back in five minutes. No one called me. Two hours later Cecilia

Denris, motions attorney/deputy clerk, faxed to me a three sentence

order from the Court stating the Court had dismissed the entire

Petition and then denied “all motions” as moot. She apparently

drafted the dismissal order herself. (See filename on February 25,

2004 Order at i}. No one told me that if I asked for expedited con-

sideration by the Court the entire Petition could or would be sum-

marily dismissed. I only anticipated that the Court would rule upon

3She also asked me whether irreparable injury was discussed in the Petition and I

replied yes. See Petition at 4 and nn. 5 & 6 and accompanying cited record excerpts

including two Plaintiff affidavits. The motion itself states in pertinent part:

Without the Interior pilot card wrongly withheld from Petitioners, without rein-

statement of their basic ordering agreement and listing of Petitioners’ names on

Interior's approved vendor pilot and aircraft lists, and without enjoining the contin-

ued maintenance and dissemination of false, derogatory and stigmatizing informa-

tion about Petitioners, Petitioners suffer irreparable injury. Petitioners are not Delta

Air Lines, however, their expectations and rights are the same and their investments

proportionally similar. Petitioners lost about $38,640 in income from federal gov-

ernment contracting because of Respondents’ initial March 27, 2002 suspension

and contract exclusions. Because of Respondents’ u/tra vires, unconstitutional, and

otherwise illegal actions Petitioner Arment’s annual salary has been only $400.00.

Petitioners had invested about $300,000 in their FAA Part 135 commercial flight

operations small business. Since May 6, 2003 when Respondent Smith illegally

imposed sanctions against Petitioners, Petitioners have had only less than $1,200 in

income compared with annual expenses of about $13,000. On November 24, 2003

Petitioners’ local counsel filed a motion to withdraw from representing Petitioners

in the district court action. Respondent District Court on January 7, 2004 scheduled

a hearing on that motion for January 30, 2004 at 2:00 p.m. In doing so he gave

priority over deciding Petitioners’ motion for preliminary injunction filed July 2,

2003 and his failure to decide that motion deprived Petitioners of relief to recover

financially or their appeal rights under 28 U.S.C. 1291.

Respondents’ ultra vires actions publicly stigmatize Petitioners. Respondents

have branded Petitioners unsafe in their chosen profession of civil commercial

aviation although Petitioner Arment since 1992 has never received any unsatisfac-

tory marks on his annual FAA pilot and part 135 flight evaluation checks, nor any

Petitioners’ motion for expedited consideration. If the Court denied

that motion the Court would nonetheless in due course consider

the merits of the Petition. Nothing I stated to Ms. Hale derogated

from the reasons given in the Petition for extraordinary relief that

includes ultra vires action by a federal agency and officers impair-

ing the concurrent prospective jurisdiction of the appeals court and

denial of admission of myself as Petitioners’ attorney pursuant to the

district court’s unconstitutional local rules, in addition to the district

court’s refusal to rule upon the preliminary injunction motion hav-

ing a statutory duty to do so. She never mentioned Bauman and, in

any event, Bauman is discussed in the Petition insofar as the guide-

lines therein are applicable.

No one has responded to my verbal and written complaints about

the Court docketing two separate cases and demanding further

money from Petitioners as “docketing and tiling fees”. There is no

notice of appeal in the district court civil action so there could not

be any case in which to assess an appeal docketing fee. Petitioners

on Respondents flight evaluation checks.? Petitioners’ names were removed from

Interior’s exclusive vendor pilot and aircraft lists. OAS Aircraft Source List (avail-

able at http ://www. oas.gov/source/AirMulti. asp). Respondents placed Petitioners’

names in an OAS SAFECOM Internet website readily accessible and searchable by

the public that can retrieve false and derogatory information about Petitioners, inter

alia. an OAS April 2000 SAFECOM alleging violation of 14 C.F.R. §§ 91.119(b)

& (c), unnoticed to Petitioner Arment that he strenuously denies. R. 51 & R. 16 at

1 5. Within Interior’s records are OAS McCorkle’s February 19, 2003 memoran-

dum to Respondent Smith falsely charging Petitioner Arment committed an aircraft

maintenance safety violation (R.52) and OAS Director McCuny’s April 4, 2002

memorandum to FWS ASM Butler concluding that “Arment failed to maintain a

minimum of 500 feet from structures (powerlines) which constitutes a violation of

FAR 91.119”; and, “by under flying the powerlines and subsequently contacting the

frozen surface of the river, Mr. Arment placed himself and Mr. Kitcheyan in serious

jeopardy” (R.31). These are false and derogatory Interior records. See R. 16 at |

3-4, 6. Respondents also maintain false and derogatory information about Petition-

ers publicly accessible through the Internet at Respondents’ searchable website in a

SAFECOM referring to an April 2000 alleged federal aviation regulation violation

while flying near Yellowstone National Park. Records system managers Smith and

Galloway unilateral disclose, “to Federal, State, or local agencies or commercial

businesses where necessary to obtain information relevant to the hiring or retention

of an employee, or the issuance of a security clearance, license, pilot qualification

card, grant or other benefit.” 64 Federal Register 66, 16981-16983 (Apr. 7, 1999).

Motion For Expedited Consideration at 7-9. (footnotes omitted).

timely filed their mandamus and prohibition writs petition to seek

relief from the Ninth Circuit to order the district court to rule on

plaintiffs’ preliminary injunction motion pending since July 2, 2003

in the District Court. Petitioners learned in January 2004 that the

District Court prioritized local counsels’ motion to withdraw over

deciding the preliminary injunction motion that violates 28 U.S.C. §

1657. Petitioners alleged serious economic and constitutional inju-

ries from Department of Interior’s denial of their right to practice

their profession and earn a living having no authority to restrict

Petitioners’ commercial flight operations and providing Petitioners

no due process of law when blacklisting them. Petitioners’ com-

plaint is unanswered with only defendants’ response to preliminary

injunction motion and their motion to dismiss interposed as reasons -

for denying relief, upon which the district court refuses to rule. As

the Petition explains, it was nonsensical for the district court to pri-

oritize local counsels’ motion to withdraw for failure to pay them

attorney fees when Petitioners had no income to keep paying them

because of the illegal acts they had complained about in the civil

action since July 2, 2003 and Petitioners’ preliminary injunction

motion to remove those illegal impediments remained pending.

Your deputy clerk dismissed the Petition only after my com-

plaints to the Court about a nonexistent appeal or case—a second

case separately docketed from the one Petitioners submitted—and

another deputy clerk/motions attorney demanded an additional

$255.00 that I refused. This appears retaliatory. I seriously doubt the

motions panel actually read the Petition and accompanying appen-

dix with addenda (totaling about 300 pages) given the brief time

between my conversation with Ms. Hale and the order faxed to me

by Ms. Dennis.

Then after petitioning the Court for rehearing and rehearing en

banc, submitted to the Court on March 17, 2004, Ms. Dennis herself

on April 5, 2004 summarily denied the petition (that is not a motion)

stating it was untimely as not being filed within 14 days of the Febru-

ary 25, 2004 dismissal order. A certified deputy clerk or motions attor-

ney has no authority to deny a petition for rehearing. See Ninth Circuit

General Orders and Appendix A. FRAP Rules 40 and 35 plainly state

we had 45 days to petition for rehearing. A/-Harbi v. INS, 284 F.3d

1080, 1082 (9th Cir. 2002) (“In our decision filed on March 9, 2001,

Wheres “Hine ROR RRR CRENORRCMMNRNENT cemmmmanon, smncsseniniscnmmsacnlitl

et A ye

Al-Harbi prevailed on his Petition for Review. The government had

until April 23, 2001 to file a petition for panel rehearing or for rehear-

ing en banc, ...”) (footnote omitted). See 28 U.S.C. § 46(c); Western

Pacific Railroad Corp. v. Western Pacific Railroad Co., 345 U.S. 247

(1953). Your published civil and agency processing guidelines clearly

state such a petition is due “[wl]ithin 14 days after decision is filed or

45 days, if USA is a party in a civil case.”. The petition was timely

because your office received the petition within 45 days, this is a civil

case, and the United States, a federal agency, and federal officers are

obviously named parties in these proceedings. As a result of this sec-

ond dismissal Petitioners had to spend additional aggravating time,

effort, and expense to preserve their rights and correct your clerks by

submitting a motion to vacate illegal order. Dismissal of Petitioners’

rehearing petitions appears to cover-up and obstruct presentment of

Petitioners’ arguments and statements from the original panel judges

and the entire Court.

_ I request you investigate the facts and circumstances of these

matters, explain why and how the acts we complain about happened,

and discipline those responsible including referral of any criminal

matters to the appropriate law enforcement agency. See e.g., 18

U.S.C. §§ 1001; 1341; 1343; 1951; 1952; & 371. Petitioners abide

by the rules, including Circuit Rules, and make their submissions in

good faith. Deputy clerks in these proceedings ignore or violate the

rules in serious matters of nationwide importance depriving Peti-

tioners of their rights to be heard by judges of this Court. The merits

of the matters Petitioners brought to the Court’s attention in their

Petition are not contested. While deputy clerks in your office appar-

ently play perverse shell games with the Petition and Petitioners’

papers. Petitioners continue to suffer with no relief in sight.

If you have any questions, please call me.

Sincerely,

/s/ Michael H. Ditton

Individually as an officer of the court;

Individually as Petitioner on Petition Part III

As Attorney for Petitioners Charles R. Arment

and Research Air, Inc.

Encls.:

1. UPS Shipping Tracking Report, Invoice, and Petitioners’ Janu-

ary 29, 2004 transmittal letter;

2. Ninth Circuit Receipt for payment of docketing fee dated Janu-

ary 30, 2004; ;

3. Petitioners’ February 23, 2004 facsimile letter with court receipt

to Clerk of Court’s office.

CF:

Charles R. Arment and Research Air, Inc.

10a

APPENDIX B—ENCLOSURE 1

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APPENDIX B—ENCLOSURE 1

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APPENDIX B—ENCLOSURE I

MICHAEL H. DITTON

ATTORNEY AT LAW

Adsnitied to practice im Virginia 2210 Bridger Drive

and the District of Columbia Bozeman, Montana 59715

(406) 587-7386 (voice/facsimile )

February 23, 2004

VIA FACSIMILE

Clerk of the Court

ATTN: Onginal Proceedings/Jane

United States Court of Appeals

for the Ninth Circuit

95 Seventh Street

San Francisco, Cslifornia 94103-1518

Re: Ne, 04-70572: No, 04-70454; In Re Research Air, Inc. v. USDC

Dear Clerk of the Court:

This is in furtherance of my telephone conversation with Jane today. I received in

U.S. mail this afternoon an Order dated February 17, 2004, postmarked February !7,

2004, signed by deputy motions clerk Ila Deiss, Motions Attorney/Deputy Clerk, stating a

filing fee of $255.00 was due in No. 70572. | paid the Writ Petition filing fee of $250.00

on January 29, 2004. A receipt showing that amount received and deposited by the Court

is attached. | do not know why two different docket numbers appear for one Petition.

Why do two different docket numbers appear? What is the status of No. 04-704547

If you have any questions, please call me.

CF:

Charies R. Arment and Research Air, Inc.

APPENDIX B—ENCLOSURE 2

Customer's Copy Receipt for Payment 59211

U. S. Court of Appeals for the Ninth Circuit

Friday, January 30, 2004

Account: TREASURY Research Air & Chas.

Amount Paid: $250.00, Check Number 104 Arment v DOI, et a

Account Amoun

Received Prom: 510000 Writ OfMandamus _$150.00

86900 Writ Of Mandamus $100.00

Michael H. Ditton

2210 Bridger DR

Bozeman, MT 59715

Two Hundred Fifty and 00/100 Dollars

Deputy Clerk: LA ) Mire

l3a

APPENDIX B—ENCLOSURE 3

FACSIMILE TRANSMISSION

Michael H. Ditton

Attomey et Law

2210 Bridger Drive, Bozeman, Montane 59715

Tal.: (406) 587-7386 (voice/facsimite)

February 23, 2004 CONFIDENTIAL

To From

Clerk of the Court/Attn: Jane Michael H. Ditton

Court of Appeais Ninth Circuit Attomey at Law

Fax. (406) §56-0624

Tel.: (415) 556-9740

Fax: (406) 587-7386

Tel.: (406) 587-7386

This fax consists of pages 2 including this cover sheet. Please inform me if transmission errors occur.

Re: No. 04-70672; No, 04-70454; ~ Petition For

Vv,

Writs of Mandamus and Prohibition and Motion For Expedited

NOTE: This entire transmission is intended only for the use of the individuals or entity

to which it is addressed, and contains information that is privileged, confidential, and

exempt from disclosure under applicable law. if the reader of this communication is not

the intended recipient or the employee or agent responsible for delivering the attached

material to the intended recipient, you are hereby notified that any dissemination,

distribution, disclosure, use or copying of this material is strictly prohibited, and

constitutes a felony crime under federal law. if you have received this communication in

error, please notify me immediately by telephone and retum the origine] message to me

at the address above via the U.S. Postal Service. You will be reimbursed for all

reasonable exnenses.

FAX NAME: M DITTON OATE: 23-FEB-O4

FAX NUMBER: 4965877386 TIME: 17:88

OATE = LIME BEMOTE FAX NAME AND NUMBER QURATION PG BESIAT QLAGNOSTIC

2 FEB 16:58 S_ 14156569624 @:01:44 3 OK 643849183198

S=F Ax SENT

TO PRINT THIS REPORT AUTOMATICALLY. SELECT AUTOMATIC REPORTS IN THE SETTINGS MENU.

ENTER.

TO PRINT MANUALLY. PRESS THE REPORT/SPACE BUTTON. THEN PRESS

l4a

APPENDIX C

IN THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE NINTH CIRCUIT

Circuit No. 04-70454

IN RE RESEARCH AIR, INC, AND CHARLES R. ARMENT,

Petitioners/Plaintiffs,

HONORABLE GAIL A. NORTON, SECRETARY, Department of

Interior,

STEVE R. SMITH, West Area Director, Office of Aircraft

Services,

ROBERT A. GALLOWAY, Aviation Safety Manager, Office of

Aircraft Services,

DEPARTMENT OF INTERIOR, United States of America,

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

MONTANA,

Respondents/Defendants.

D.C. No. CV 03-54-BU-RFC

[Filed April 16, 2004]

MOTION TO VACATE ILLEGAL ORDER AND FILE

PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

Petitioners, pursuant to Federal Rules of Appellate Procedure

(“FRAP”) Rules 27, 35 and 40, through their undersigned attor-

ney, hereby move the Court for entry of an order vacating motions

attorney/deputy clerk Cecilia Dennis’s April 5, 2004 order (Ex.

1) denying as untimely Petitioners’ FRAP 35 & 40 Petition for

Rehearing and Suggestion for Rehearing En Banc and ordering the

Clerk to file those papers nunc pro tunc and circulate them to each

judge in active service of the Ninth Circuit Court of Appeals. The

grounds for this motion are that the April 5, 2004 order illegally

denies Petitioners’ rehearing nghts under 28 U.S.C. § 46 and FRAP

15a

Rules 35 and 40 by dismissing their rehearing petitions as untimely

when Petitioners had 45 days within which to petition the court for

rehearing and the Court received the rehearing petitions March 22,

2004 (Ex. 2), 26 days after the February 25, 2004 panel order dis-

missing the mandamus and prohibition writs petition. Further, under

the Court’s internal procedures the staff attorney had no authority to

deny Petitioners’ petitions.

By order dated February 25, 2004 a panel of this court denied

Petitioners’ Petition for Writs of Mandamus and Prohibition.'

Respondent real parties in interest are the United States, Department

of the Interior, Interior Secretary Gale Norton, Office of, Aircraft

Services West Area Director Steve Smith, Office of Aircraft Ser-

vices Aviation Safety Manager Robert Galloway and United States

District Court for the District of Montana. The caption assigned this

original civil proceeding so states. The individual respondents are

officers of the United States.

By order dated April 5, 2004 Ninth Circuit motions attorney/

deputy clerk Cecilia Dennis denied Petitioners’ Petition for Rehear-

ing and Suggestion for Rehearing En Banc as untimely citing Ninth

Circuit Rule 27-10. (Ex. 1). Circuit Rule 27-10 is styled “MOTIONS

FOR RECONSIDERATION” and by its terms applies to motions.”

Petitioners did not submit or file a “motion for reconsideration,

clarification or rehearing of an order or cite Circuit Rule 27-10.

What Petitioners did submit citing FRAP 35 & 40, received by the

Court on March 22, 2004 (Ex. 2), is a “Petition For Rehearing and

IThe petition invokes this Court’s concurrent and prospective jurisdiction under

the Federal Aviation Act and the Independent Safety Board Act and seeks a writ

of mandamus ordering in aid of that jurisdiction. The petition also seeks a writ of

mandamus ordering Respondent District Court to decide Petitioner’s Motion for

Preliminary Injunction filed July 2, 2003 and stop violating 28 U.S.C. 1657 by pri-

oritizing other matters over this motion. The Petition also seeks an order admitting

Petitioners’ attorney Ditton’s admission to the District Court upoa determining the

District Court’s local attorney admission rules are unconstitutional.

2This rule states:

Unless the time is shortened or enlarged by order of this court, a motion for

clarification, reconsideration, or rehearing of an order entered by a motions

panel must be filed within 14 days of the date of the order, except a prisoner not

represented by an attorney shall have 28 days.

l6a

Suggestion For Rehearing En Banc.” Pursuant to Circuit Rule 35-4

pertaining to petitions for rehearing en banc Petitioners submitted

an original and 50 copies of their petition. See also Cir. R. 40-1(b)

(petition for panel rehearing alone only requires the original and 3

copies).

“The Court of Appeals of course cannot make the record what

it is not.”. Missouri v. Jenkins, 495 U.S. 33, 49 (1990). Petitioners’

papers are clearly a petition, not a motion, and a petition for rehear-

ing and suggestion for rehearing en banc, not for reconsideration,

clarification or rehearing. The staff attorney’s act illegally attempts

to make Petitioners’ papers what they are not, a motion for reconsid-

eration and not a petition for rehearing or petition for or suggestion

for rehearing en banc.

Petitioners’ petition is timely under the Federal Rules. FRAP 35

“En Banc Determination” states in pertinent part: “(c) Time for Peti-

tion for Hearing or Rehearing En Banc. A petition for a rehearing en

banc must be filed within the time prescribed by Rule 40 for filing a

petition for rehearing.”. FRAP 40 plainly states:

(a) Time to File; Contents; Answer; Action by the Court if

Granted.

(1) Time. Unless the time is shortened or extended by

order or local rule, a petition for panel rehearing may

be filed within 14 days after entry of judgment. But in

a civil case, if the United States or its officer or agency

is a party, the time within which any party may seek

rehearing is 45 days after entry of judgment, unless an

order shortens or extends the time.

Petitioners’ Petition for Writs of Mandamus and Prohibition is

clearly a civil case. Petitioners had 45 days within which to peti-

tion for rehearing and rehearing en banc. Bianchi v. Perry, 154

F.3d 1023, 1024 (9th Cir. 1998) (“Because an officer of the United

States was a party, the deadline for filing a petition for rehearing was

45 days from April 9, under Federal Rule of Appellate Procedure

40(a).”); Youghiogheny and Ohio Coal Co. v. Milliken, 200 F.3d

942, 952 (6th Cir. 1999), cert. den., 531 U.S. 818 (2000) (“In fact,

because Rule 40(a) now grants all parties to a civil case in which the

United States or a federal agency or officer is a party forty-five days

17a

from the entry of judgment to petition for rehearing, ...[dJuring the

first forty-five days of that time, of course, a party may file a peti-

tion for rehearing and the court of appeals may agree to rehear the

case.”). See Al-Harbi v. INS, 284 F.3d 1080, 1082 (9th Cir. 2002)

(“In our decision filed on March 9, 2001, Al-Harbi prevailed on his

Petition for Review. The government had until April 23, 2001 to file

a petition for panel rehearing or for rehearing en banc, ...”) (footnote

omitted). Since Petitioners’ rehearing papers were received March

22, 2004 they were timely and should have been filed and distrib-

uted to the judges in accordance with the Court’s rules.?

A staff attorney cannot change the Federal Rules of Appellate

Procedure. As the advisory committee notes to the amendment to

FRAP 40(a) states:

Although the first sentence of Rule 40 permits a court of

appeals to shorten or lengthen the usual 14 day filing period

by order or by local rule, the sentence governing appeals in

civil cases involving the United States purposely limits a

court’s power to alter the 45 day period to orders in specific

cases. If a court of appeals could adopt a local rule shorten-

ing the time for filing a petition for rehearing in all cases

involving the United States, the purpose of the amendment

would be defeated.

These notes are “entitled to great weight”. Western Pacific Rail-

road Corp. v. Western Pacific Railroad Co., 345 U.S. 247, 261

(1953) (applying 28 U.S.C. § 46). Moreover, Petitioners have a “the

right to know the administrative machinery that will be followed” in

processing rehearing and en banc petitions. Shenker v. Baltimore &

Ohio Railroad Co., 374 U.S. 1, 5 (1963). When an appellate court

makes rules in this area “it should be clearly explained, so that the

members of the court and litigants in the court may become thor-

oughly familiar with it.” Western Pacific, 345 U.S. at 254-55 (Court

3Circuit Advisory Committee Notes to Rules 35-1 to 35-3(2) state in pertinent

part:

Petition for Rehearing for En Banc. When the clerk receives a timely petition

for rehearing en banc, copies are sent to all active judges. If the panel grants

a rehearing it so advises the other members of the Court, and the petition for

rehearing en banc is deemed rejected without prejudice to its renewal after the

panel completes action on the rzhearing.

18a

of Appeals could not restrict the initiation of the en banc procedure

to the court itself, and that a decision striking out an application by

a party for en banc consideration was error).

Nor can any credible argument be made that extraordinary writ

petitions are somehow different from appeals for rehearing pur-

poses. The Ninth Circuit itself has always regarded denial of man-

damus and prohibition petitions as subject to petitions for rehearing

en banc. See, e.g., Ellis v. United States Dist. Court (In re Ellis),

294 F.3d 1094, 1099-1100 (9th Cir. 2002), withdrawn, 313 F.3d

1094 (9th Cir. 2002), rev'd on rehearing en banc, _ F.3d ___ (9th

Cir. Feb. 4, 2004) (United States real party in interest); Miller v.

Gammie, 335 F.3d 889, 895 (9th Cir. 2003) (en banc) (Nevada state

respondent); /n Re McClatchy Newspapers , Inc. v. United States

Dist. Court (In Re McClatchy Newspapers), 288 F.3d 369 (9th Cir.

2002) (United States a named real party in interest); Rosenfeld v.

United States, 859 F.2d 717 (9th Cir. 1988) (denying government’s

mandamus petition in opinion as amended on denial of rehearing

and rehearing en banc). There is no authority whatsoever for elimi-

nating original proceedings or extraordinary writs from petitions for

rehearing en banc. 28 U.S.C. 46(c) (“Cases and controversies”).

The Court cannot deny Petitioners their right to petition for panel

rehearing and suggest rehearing en banc. William H. Banks Ware-

houses, Inc. v. Watt, 205 F.2d 44 (9th Cir.) (per curiam) cert. den.,

74 S.Ct. 43 (1953) (upon Supreme Court remand vacating panel

denial of rehearing en banc without determination by the active

judges of the court); Thomas v. United States, 328 F.3d 305, 308

(7th Cir. 2003) (“Any order that terminates the appeal, and may be

reviewed by the Supreme Court, also should be eligible for review

by the full court of appeals....Consequently, a document (whether

styled “petition for rehearing” or “motion for reconsideration”) that

seeks review by the court en banc will be distributed to all active

judges.”).

Moreover, the staff attorney herself had no authority to deny

a petition for rehearing or suggestion for rehearing en banc. See

United States v. James, 146 F.3d 1183 (9th Cir. 1998) (three judge

panel); Ninth Circuit General Orders App. A, § 55 (Jan. 1, 2003)

(limiting authority to “orders denying untimely motions for recon-

sideration of a motions panel order”). Indeed, the Court’s own rules

19a

provide otherwise: “Upon the filing by a party of a petition for

rehearing en banc, the Clerk shall circulate a copy to each active

judge and to those senior judges who have requested copies.” G.O.

5.4a (“Duties of Clerk”) (Mar. 26, 2003).4

WHEREFORE, good cause having been shown and pursuant

to FRAP Rules 35 & 40, Petitioners request the Court grant this

motion, vacate the panel’s April 5, 2004 order denying their Petition

Rehearing and Suggestion for Rehearing En Banc, file Petitioners’

Petition for Rehearing and Suggestion for Rehearing En Banc nunc

pro tunc as of March 22, 2004, and circulate a copy thereof to each

active judge and to those senior judges who have requested copies.

DATED: April 13, 2004 Respectfully submitted,

CHARLES R. ARMENT and

RESEARCH AIR, INC. by

Michael H. Ditton

Attorney at Law

2210 Bridger Drive /s/ Michael H. Ditton,

Bozeman, Montana 59715 VSB No. 21915

(406) 587-7386 (voice/fax) Attorney for Petitioners, and

Petitioner on Part IVC supra.

4Suspension of the General Orders can come only upon a proper two-thirds vote

of the court, which, itself must follow the appropriate procedures. See G.O. 11.11.

Nor does GO. 6.11 entitled “Suggestions for Rehearing En Banc” that refers to

motions before a panel alter this result. As shown above such an internal rule cannot

change the Federal Rules rehearing timeliness provision or deny petitioners their

right to suggest rehearing en banc to all active judges “upon the filing by a party”,

G.O. 5.4(a). There is no provision for a staff attorney interfering with this process.

20a

CERTIFICATE OF SERVICE

I hereby certify that on April 13, 2004 I served a copy of the

foregoing Motion to Vacate Illegal Order and to File Petition for

Rehearing and Suggestion for Rehearing En Banc by placing a copy

in U.S. mail postage prepaid addressed to the following:

Honorable Richard F. Cebull

United States District Court Judge .

United States District Court for the District of Montana

James F. Battin United States Courthouse

316 North 26th Street

Billings, Montana 59101

Respondent District Court

George F. Darragh, Jr.

Assistant United States Attorney

U.S. Attorney’s Office

P.O. Box 3447

Great Falls, Montana 59403

Counsel for Respondents/Defendants

/s/ Michael H. Ditton

2la

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Circuit No. 04-70454

IN RE: RESEARCH AIR, INC., ET AL.

RESEARCH AIR, INC.; ET AL.,

Petitioners,

UNITED STATES DISTRICT COURT OR THE DISTRICT OF

MONTANA,

Respondent,

GALE NorTON, Secretary of the Interior, et al.,

Real Parties in Interest.

D.C. No. CV-03-00054-RFC

DISTRICT OF MONTANA, BUTTE

ORDER

[Filed February 25, 2004]

Before: FERNANDEZ, W. FLETCHER and TALLMAN,

Circuit Judges

Petitioners have not demonstrated that this case warrants the

intervention of this court by means of the extraordinary remedy of

mandamus. See Bauman v. United States Dist. Court, 557 F.2d 650

(9th Cir. 1977). Accordingly, the petition is denied.

All pending motions are denied as moot.

DENIED.

22a

RTT GS: loem = Fremr-Bth CIR 4 W514 PR ORANO2 Ft e

FA)

SHEET

UNITED STATES COURT OF APPEALS

FOR THE MINTH CIRCUIT

- P.O. Box 193939

(415) 556-9890

pare: february 26, 2004

ro: Mic trel pirrew / Gewese Dpeeactt

TELEPHONE:

— Céeila Dennis?

TELEPHONE: 415-556-9890

FAX #. 415-556-8131

PAGE(S): _F_,tnctatiag teers tant.

MESSAGE: , Pe 7 7

Moni TAWA

if you have any questions comceraing the transmitral of this material, please comtact the sander.

THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DOES NOT ACCE?PT

TRANSMITTED

DIRECTLY BY TELEPHONE F. WITHOUT THE EXPRESS

PRIOR APPROVAL OF A COURT FAILURE TO REQUEST AND OBTAIN COURT

PERMISSION TRANSMITTING BY FAX MAY SUBJECT THE SENDER TO SANCTION

PLEASE REFER TO %* CIR. &. 25-3 FOR FURTHER INFORMATION.

23a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

95 Seventh Street, P.O. Box 193939

San Francisco, CA 94119-3939

February 2, 2004

CA No. 04-70454 Research Air, Inc., v. USDC-MBU

A petition’ for writ of mandamus and/or prohibition has been

received in the Clerk’s Office of the United States Court of Appeal

for the Ninth Circuit. :

The U.S. Court of Appeals docket number shown above has been

assigned to this case. You must indicate this Court of Appeals docket

number when corresponding to this office relative to your case.

If the U.S. Court of Appeal docket fee has not yet been paid,

please make immediate arrangements to do so. If you wish to apply

for in forma pauperis status, you must file a motion for permission

to proceed in forma pauperis with this court.

Pursuant to Rule 21(b), FRAP, no answer to a petition for writ

__ of mandamus and/or prohibition may be filed unless ordered by the

Court. If such an order is issued, the answer shall be filed by the

respondents within the time fixed by the Court.

A copy of the docket sheet case title page is attached. Please take

special note of the case caption, as it may differ from that shown on

the papers submitted for filing. Pursuant to Circuit Rule 21-2, an

application for writ of mandamus and/or prohibition shall not bear

the name of the district court judge concerned. Rather, the appropri-

ate district court shall be named as respondent.

Very truly yours,

Cathy A. Catterson

Clerk of Court

By: Verna Travis

Deputy Clerk

24a

INTERNAL USE ONLY: Proceedings include all events.

04-70454 Research Air, Inc., et al v. USDC-MBU

In re: RESEARCH AIR, INC AND

CHARLES R. ARMENT

RESEARCH AIR, INC., AND CHARLES R. ARMENT

Petitioners,

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

MONTANA (BUTTE);

Respondent,

GALE NORTON, HON, AS SECRETARY OF THE

INTERIOR; STEVEN R. SMITH, West Area Director Office of

Aircraft Services,, ROBERT A. GALLOWAY, Aviation Safety

Manager, Office of Aircraft Service; DEPARTMENT OF

INTERIOR, AND UNITED STATES OF AMERICA

Real Parties in Interest.

Docket as of February 2, 2004 11:45 am

25a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

95 Seventh Street, P. 0. Box 193939

San Francisco, CA 94119-3939

February 6, 2004

CA No. 04-70572 Research Air, Inc. v. USDC-MOB

A petition for writ of mandamus and/or prohibition has been

received in the Clerk’s Office of the United States Court of Appeals

for the Ninth Circuit.

The U.S. Court of Appeals docket number shown above lias been

assigned to this case. You must indicate this Court of Appeals docket

number when corresponding to this office relative to your case If the

U.S. Court of Appeals docket fee has not yet been paid, please make

immediate arrangements to do so. If you wish to apply for in forma

pauperis status, you must file a motion for »ermission to proceed in

forma pauperis with this court.

Pursuant to Rule 21(b), FRAP, no answer to a petition for writ

of mandamus and/or prohibition may be filed unless ordered by the

Court. If such an order is issued, the answer shall be filed by the

respondents within the time fixed by the Court.

A copy of the docket sheet case title page is attached. Please take

special note of the case caption, as it may differ from that shown on

the papers submitted for filing. Pursuant to Circuit Rule 21-2, an

application for writ of mandamus and/or prohibition shall not bear

the name of the district court judge concerned. Rather, the appropri-

ate district court shall be named as respondent.

Very truly yours,

Cathy A. Catterson

Clerk of Court

By: Teresa Mitchell-Bell

Deputy Clerk

26a

Titel: USPS - Track & Contirm ' 4/13/2004

URL: D:\SAVED WORK \ResearchA\Ninth Circuit\Delivery Confirmation Rehearing Petition. htm 12:34:58

<_USPS Home Page | wee: Home

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Shipment Details

You entered 0302 1790 0001 6590 7365

Your item was delivered at 9:16 am on March 22,

2004 in SAN FRANCISCO, CA 94119. Enter label number.

Here is what happened eartier.

@ ENROUTE, March 21, 2004, 4:48 am, SAN

FRANCISCO, CA 94188

@ ACCEPTANCE, March 17,2004, 11:58am, ‘Track & Confirm

BOZEMAN, MT 59718 “FAQs *

o Track & Confirm by email What is this?

27a

MICHAEL H. DITTON

ATTORNEY AT LAW

Admitted to practice in Virginia 2210 Bridger Drive

and the District of Colambia Bozeman, Montana 59715

(406) 587-7386 (voice/facsimile)

March 17, 2004

Clerk of the Court

United States Court of Appeals

for the Ninth Circuit

P.O. Box 193939.

San Francisco, California 94119-3939

Dear Clerk of the Court:

Enclosed for filing please find the original and fifty copies of Petitioner's Petition

for Rehearing and Suggestion for Rebearing Ea Banc of the motion panel's denial of the

Petition for Writs of Mandamus and Prohibition in the above-styled case. If you have any

questions, please call me.

Encls.

CF:

Charles R. Arment and Research Air, Inc.

Honorable Richard F. Cebull, United States District Judge

Assistant United States Attorney George F. Darragh

28a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Circuit No. 04-70454

RESEARCH AIR, INC.; ET AL.,

Petitieners,

Vv.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

MONTANA,

Respondent,

GALE NORTON, Secretary of the Interior, et al.,

Real Parties in Interest.

D.C. No. CV-03-00054-RFC

ORDER

[Filed April 5, 2004]

The petition for rehearing and suggestion for rehearing en banc is

denied as untimely. See 9th Cir. R. 27-10.

For the Court

/s/ Cecilia Dennis

Motions Attorney/Deputy Clerk

9th Cir. R. 27-7

General Orders/Appendix A

29a

APPENDIX E

IN THE UNITED STATES CIRCUIT COURT

OF APPEALS FOR THE NINTH CIRCUIT

Circuit No. 04-70454

IN RE RESEARCH AIR, INC., AND CHARLES R. ARMENT,

Petitioners/Plaintiffs,

HONORABLE GALE A. NoRTON, Secretary, Department of

the Interior,

STEVE R. SMITH, West Area Direcior, Office of Aircraft

Services,

ROBERT A. GALLOWAY, Aviation Safery Manager, Office of

Aircraft Services,

DEPARTMENT OF THE INTERIOR, UNITED STATES OF AMERICA

AND

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

MONTANA,

Respondents/Defendants.

D.C. No. CV 03-54-BU-RFC

[Filed March 22, 2004]

PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

Petitioners, pursuant to FRAP Rules 35 and 40, hereby petition

the Court for rehearing and rehearing en banc of the summary denial

order dated February 25, 2004 denying their Petition for Wnits of

Mandamus and Prohibition.’ The panel’s denial conflicts with

decisions of the United States Supreme Court, the Ninth Circuit,

and other courts of appeal, and involves a question of exceptional

IThere is no answer or appearance by respondents in these proceedings.

30a

importance. The panel’s denial occurred after a Ninth Circuit deputy

court clerk docketed a non-existent Petitioners’ appeal whose pres-

ence would justify denial of mandamus relief. Petitioners, however,

filed no notice of appeal, and submitted only one petition filed as

an original proceeding that court staff impermissibly and wrongly

bifurcated into a parallel appeal. See R.62 (Appeal No. 04-70572)

(attached hereto). Fraudulent manipulation of the Court’s internal

processes denied incontestable constitutional and statutory rights to

Petitioners.

Upon Petitioners’ Motion for Expedited Consideration the

motions panel denied their Petition for Writs of Mandamus and

Prohibition, and then denied the motion as moot. The two-sentence

denial order states only that Petitioners had not “demonstrated that

this case warrants the intervention of this court by means of the

extraordinary writ of mandamus. See Bauman v. United States Dist.

Ct., 557 F.2d 650 (9th Cir. 1977).” R.63 at 1. This statement over-

looks what Petitioners argued and sought, and misapprehends the

law. Petitioners stated three grounds for mandamus or prohibition

relief: (1) ultra vires and unconstitutional federal agency and officer

acts involving exclusive administrative and judicial provisions of

the federal aviation statutes within this Court’s prospective concur-

rent jurisdiction; (2) Respondent District Court’s failure to prioritize

and decide Petitioners’ Motion for Preliminary Injunction; and, (3)

unconstitutional local attorney admission rules denying Petitioners’

choice of attorney. Construing Bauman to deny Petitioners equitable

relief upon uncontested blatant statutory violations conflicts with

Stark v. Wickard, 321 U.S. 288, 310-11 (1944) (“The responsibil-

ity of determining the limits of statutory grants of authority in such

instances is a judicial function entrusted to the courts by Congress

by the statutes establishing courts and marking their jurisdiction.”);

Leedom v. Kyne, 358 U.S. 184, 190 (1958) (court will not infer that

Congress did not intend courts to protect parties against agency

action taken in excess of delegated powers); Harmon v. Brucker,

355 U.S. 579, 581-82 (1958) (per curiam) (“Generally, judicial

relief is available to one who has been injured by an act of a gov-

ernment officia! which is in excess of his express or implied pow-

ers.”); Bowen v. Michigan Academy of Family Physicians, 476 U.S.

667, 681 (1986) (“We ordinarily presume that Congress intends the

executive to obey its statutory commands and, accordingly, that it

3la

expects the courts to grant relief when an executive agency violates

such a command.”).

Applying a Bauman demonstration requirement in face of clear

violations of the Federal Aviation Act, 49 U.S.C. §§ 40101 ef seq.,

Independent Transportation Board Act, 49 U.S.C. §§ 1901 et seq.,

and APA, 5 U.S.C. § 701 et seq., depriving this Court of its concur-

rent and prospective jurisdiction under 49 U.S.C. § 46110 and 49

U.S.C. §1153, is an unreasoned and unprincipled exercise of an

appellate court’s power conflicting with Jn Re California Power

Exchange Corp., 245 F.3d 1110, 1120 (9th Cir. 2001) (“We gener-

ally employ a three-part test to determine whether to grant manda-

mus relief: ‘(1) the plaintiff’s claim is clear and certain; (2) the duty

is ministerial and so plainly prescribed as to be free from doubt;

and (3) no other adequate remedy is available.””); Idaho Watersheds

Project v. Hahn, 307 F.3d 815, 832 (9th Cir. 2002) (same; NEPA

violation by BLM). The Court’s order is a manifest injustice that

perverts the Court’s rules and directly conflicts with federal stat-

utes and Supreme Court decisions. 28 U.S.C. § 1651; Mallard v.

United States District Court, 490 U.S. 296, 309-10 (1989) (revers-

ing court of appeals for denying mandamus to petitioner who met

“this demanding standard” and had “an absolute right”); General

Atomic Co. v. Felter, 436 U.S. 493, 497 (1978) (absolute right to

present its claims to federal forums); Whitney Nat’l. Bank v. New

Orleans Bank, 379 U.S. 411 (1965); Roche v. Evaporated Milk

Assoc., 319 U.S. 21, 25 (1943) (“Otherwise the appellate jurisdic-

tion could be defeated and the purpose of the statute authorizing the

writ thwarted by unauthorized action of the district court obstructing

the appeal.”).2 The panel must have misapprehended the Petition.

Petitioners have no adequate remedy—conclusively disposing of

the first and second Bauman guidelines—because Congress placed

administrative decision-making and due process of law in the FAA

2Rees v. United States District Court, 572 F.2d 700, 702 & n.8 (9th Cir. 1978)

(noting that the only Bauman guideline the Supreme Court identifies as a condi-

tion for mandamus relief is that an ordinary appeal after final disposition of these

cases for mandamus «stief is that an ordinary appeal after final disposition of these

cases in the district court is unavailable or inadequate, citing Kerr v. United States

District Court, 426 U.S. 394, 403 (1976)). See Gulfstream Aerospace Corp. v.

Mayacamas Corp., 485 U.S. 271, 289 (1988) (mandamus standard is ‘clear and

indisputable’ right to issuance).

Ps en os Ae

32a

and NTSB and judicial review in this Court; that is the whole point

of the first ground for extraordinary relief.

The federal agency Respondents refuse to defer to FAA and

NTSB, claiming superior authority. Pet. 7-8. Indisputably, however,

Department of Trasportation and the FAA Administrator have

exclusive regulato: thority over aviation safety and commerce.

Petitioners “demonstrated” Respondents clearly and indisputably

violated these federal statutes necessitating relief from this Court to

effectuate Congressional purpose. The Federal Aviation Act gives

exclusive administrative agency authority over aviation safety and

commerce in the nation’s airspace to the FAA. 49 U.S.C. § 40101(a)

& (c); United States v. Varig Airlines, 467 U.S. 797, 804 & n.5

(1984) (“all regulatory authority”); Westside Property Owners v.

Schlesinger, 597 F.2d 1214 (9th Cir. 1979) (“authority to regulate

the use of all airspace over the United States by both civil and mili-

tary aircraft”); Arapahoe County Public Airport Authority v. FAA,

242 F.3d 1213 (10th Cir. 2001) (City airport authority’s proclaimed

“safety” and “civil aviation needs” a factual matter for the FAA );

Oceanair v. Transportation, 876 F.2d 1560 (11th Cir. 1989) (hear-

*Bauman itself involved a district court, not a federal agency or officers. The

only Bauman guidelines that might apply to agency and officer writs are the first

and second: whether Petitioners have other adequate means to obtain the requested

relief such as a direct appeal and whether Petitioners are damaged or prejudiced in

a way not correctable on appeal. 557 F.2d at 654. Petitioners showed irreparable

injury through economic losses and illegal deprivation of constitutional rights.

Pet.at 18. Mendenhall v. NTSB, 92 F.3d 871, 876 (9th Cir. 1996) (“Contrary to the

FAA's assertions, ten days without a license is not ‘a reasonable period of time,’

when one’s livelihood depends on it.”); Coteau Properties Co. v. Interior, 53 F.3d

1466 (8th Cir. 1995) (reversing denial of preliminary injunction for contractor with

Interior mining permits because delay, denial or suspension “would clearly cause

Coteau serious difficulties in meeting its contractual obligations, if not make it

impossible to meet them.”); Collord v. Interior, 154 F.3d 933 (9th Cir. 1998) (Con-

stitution requires a hearing before Interior can cancel mining claims); Walters v.

Reno, 145 F.3d 1032 (9th Cir. 1998) (if prejudice was required plaintiffs showing in

connection with due process violation sufficed); Matter of Sandahl, 980 F.2d 1118

(7th Cr. 1992) (lack of an adequate remedy by way of direct appeal or otherwise

amounts to irreparable harm); Casad v. HHS, 301 F.3d 1247, 1254 (10th Cir. 2002)

(rejecting appeal for § 1657(a) violation; “The district court has resolved the case;

this court can provide no relief for any alleged delay.”); In Re Ellis, No. 01-70724,

1498 (9th Cir. Feb. 4, 2004) (en banc) (uncorrectable prejudice from denial of

mandamus relief).

33a

ing on the record required by Congress in Federal Aviation Act

applies to revoking air carrier’s certificates of public convenience

and necessity).* Judicial review is lodged in the courts of appeal.

49 U.S.C. §§ 46110 & 1153. Alameda v. FAA, 285 F.3d 1143, 1145

(9th Cir. 2002) (§ 46110(a) encompasses orders relating to air safety

within court of appeals jurisdiction); Los Angeles y. FAA, 239 F.3d

1033, 1036 (9th Cir. 2001) (“Every court of appeals case that could

be found exercising jurisdiction under § 46110(a) involved airline

commerce and safety or a specific provision under Part A.”); Foster

v. Skinner, 70 F.3d 1084, 1087 (9th Cir. 1995) (claims regarding

flight privileges revocation for safety regulation violations court of

appeals jurisdiction).

Rehearing en banc is necessary because the panel’s decision

directly conflicts with existing opinions by other courts including the

Ninth Circuit and substantially affects a rule of national application in

which there is an overriding need for national uniformity -- regulation

of the nation’s airspace. Deciding that Interior, instead of FAA, had

statutory authority to do the acts complained of, or had superior or

concurrent authority, when plain statutory language states otherwise

manifestly conflicts with Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842-843 (1984) (“If the intent of

Congress is clear, that is the end of the matter; for the court, as well as

the agency, must give effect to the unambiguously expressed intent of

Congress.”); Whitman v. American Trucking Associations, Inc., 531

U.S. 457, 468 (2001); ICC v. American Trucking Associations, Inc.,

467 U.S. 354 367 (1984) (“[t]o lie within the Commission’s discre-

tionary power, the proposed remedy must satisfy two criteria: first the

power must further a specific statutory mandate of the Commission,

and second, the exercise of power must be directly and closely tied

to that mandate.”); Gorbach v. Reno, 219 F.3d 1087, 1102 (9th Cir.

2000) (en banc) (administrative power “must be exercised within the

authority granted by the governing statute”); Burlington Eisinger v.

“When Congress expressly delegates authority to Interior involving aviation,

Congress provides FAA has the final decision. See U.S. Air Tour Association v.

FAA, 298 F.3d 997 (D.C. Cir. 2002); Grand Canyon Air Tour Coalition v. FAA, 154

F.3d 455, 468 (D.C. Cir. 1998) (Overflights Act “clearly divides the institutional

responsibilities between” the FAA and the Park Service, the Act directs FAA to

‘implement the recommendations of the Secretary without change’ unless they

would adversely affect aviation safety,”).

34a

FLRA, 218 F.3d 1097, 1103 & n.5 (9th Cir. 2000) (“Given this clear

statutory language, it is unnecessary to abdicate our jurisdiction

because Eisinger may have other avenues of relief.”). See Escondido

Mutual Water Co. v. La Jolla Bands of Mission Indians, 466 U.S. 765,

780-81 (1984) (upholding FERC’s rejection of Interior’s prescrip-

tions that on their face exceed statutorily defined geographic limits

on Interior’s jurisdiction); Bonnichsen v. United States, No. 02-35994

(9th Cir. Feb. 4, 2004) (Interior’s regulation conflicting with statute’s

plain language invalid, citing Whitman, 531 U.S. at 481); Wilderness

Society v. Fish & Wildlife Service, 353 F.3d 1051 (9th Cir. 2003) (en

banc) (FWS permit for commercial fish enhancement program vio-

lated Wilderness Act); American Rivers v. FERC, 201 F.3d 1186 (9th

Cir. 2000) (“adopting the sound reasoning in United States Depart-

ment of Interior [v. FERC, 952 F.2d 538, 545 (D.C. Cir. 1992)] which

withholds from the agencies a “veto power” over the section 10(j)

process’’); United States v. Pend Oreille Pub. Utility Dist. No. 1,28 F.3d

1544, 1549 (9th Cir. 1994), cert. denied, 115 S. Ct. 1356 (1995) (“...

but Congress neither required the [Interior] Secretary to include Arti- ~

cle 33 in the license nor placed the damage issue “within the special

competence of an administrative body” under “a regulatory scheme.”

quoting United States v. Western Pac. R.R., 352 U.S. 59, 64 (1956)).

Consideration by the full court is also necessary to secure and

maintain uniformity of the court’s decisions with the Supreme Court

and other circuit courts of appeals. Jn Re United States, 345 F.3d 450,

253 (7th Cir. 2003) (Posner, J.) (“The historic and still the central

function of mandamus is to confine officials within the boundaries of

their authorized powers,”); Sandahl, 980 F.2d 1118 (“If the [disquali-

fication] order is plainly wrong—if this is apparent without elaborate

consideration of contested facts and legal principles—considerations

of administrative efficiency argue for resort to mandamus as a swift

and economical remedy against injustice.”); Maloney v. Plunkett, 854

F.2d 152, 155 (7th Cir. 1988) (writ’s “proper use cannot be wholly

reduced to formula”); Jn re Vargas, ‘723 F.2d 1461, 1467 (10th Cir.

1983), cert. denied, 469 U.S. 819 (1984) (The right to a wntt is “clear

and indisputable” when the petitioner can show “a judicial usurpa-

tion of power or a clear abuse of discretion”, citing Mallard); ALPA

v. CAB, 750 F.2d 81, 84 (D.C. Cir. 1984) (necessary to protect circuit

court’s exclusive prospective jurisdiction over review of NTSB’s pre-

decessor); Rhode Island Dept. Env. Met. v. United States, 304 F.3d

35a

31 (1st Cir. 2002); In Re FCC, 217 F.3d 125 (2nd Cir.-2000) (issuing

mandamus relief where FCC’s licensing decisions are subject to the

exclusive jurisdiction of the federal courts of appeals and outside the

bankruptcy court’s limited jurisdiction); Allied Signal v. Allied Signal,

Inc., 298 F.3d 263, 270 (3rd Cir. 2002) (writ of mandamus remedy in

order to vacate the unauthorized district court order sending case to

stranger court, citing Mallard).

The panel’s implicit holding that Petitioners do not have a clear

and indisputable right to be free of ultra vires lawless agency action

conflicts with American School of Magnetic Healing v. McAnnullty,

187 U.S. 94, 110 (1902); Oestereich v. Selective Serv. Sys. Local Bd.

No. 11, 393 U.S. 233, 237-38 (1968) (“We deal with conduct of a

local Board that is basically lawless.”), and CAB v. Delta Air Lines,

Inc., 367 U.S. 316 (1961). Construing Bauman to deny a writ of pro-

hibition against federal officers acting ultra vires conflicts with Phila-

delphia v. Stimson, 223 U.S. 605 (1912); Larson v. Domestic and

Foreign Commerce Corp., 337 U.S. 682, 701-702 (1949); Joint Anti-

Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951); Greene

v. McElroy, 360 U.S. 474 (1959). Construing Bauman to justify grant-

ing Petitioners no relief conflicts with United States v. Oakland Can-

nabis Buyers’ Coop., 532 U.S. 483, 497-98 (2001) (“Courts of equity

cannot, in their discretion, reject the balance that Congress has struck

in a statute.”) and TVA v. Hill, 437 U.S. 153, 194 (1978) (“Once Con-

gress, exercising its delegated powers, has decided the order of priori-

ties in a given area, it is for the Executive to administer the laws and

for the courts to enforce them when enforcement is sought.”, citing

Marbury). See Aid Association for Lutherans v. U.S. Postal Service,

321 F.3d 1166, 1175 (D.C. Cir. 2003) (challenged regulations ema-

nating from ultra vires action cannot survive judicial review under

Chevron); Chamber of Commerce v. Reich, 74 F.3d 1322, 1327-28

(D.C. Cir. 1996) (ultra vires Executive Order); Dart v. United States,

~ 848 F.2d 217, 224, 227-31 (D.C. Cir. 1988) (“Were such unauthorized

actions to go unchecked, chaos would plainly result.”). When denying

Petitioners any relief the panel applied Bauman guidelines mechanis-

tically in derogation of Chevron and Hill, and in conflict with Armster

v. United States District Court, 806 F.2d 1347, 1352 (9th Cir. 1986)

(“The Bauman factors “are not susceptible of mechanical application”

and are only “a useful starting point.” quoting In re Cement, 688 F.2d

1297, 1301 (9th Cir. 1982), aff'd for lack of a quorum, 459 U.S. 1191

i aeeesiniennieniciseninaisiaeemeaimeauaiial

36a

(1983)); United States v. Harper, 729 F.2d 1216, 1222 (9th Cir. 1984)

(same); Special Investments, Inc. v. Aero Air, Inc., No. 02-55788, 2683

(9th Cir. Mar. 2, 2004) (“While the guidelines should inform a court’s

decision whether to grant a mandamus petition, they are not meant to

supplant reasoned and independent analysis by appellate courts.”).

Denying mandamus and prohibition relief to Petitioners for

Respondent District Court’s refusal to decide Petitioners’ motion

for preliminary injunction pending for over eight monthsS conflicts

with 28 U.S.C. § 1657(a); Ex Parte Bradstreet, 32 U.S. (7 Pet.)

634, 649-50 (1833); Life and Fire Insurance Co. v. Wilson's Heirs,

33 U.S. (8 Pet.) 291, 303 (1834) (“Without the action of the judge

the plaintiffs can take no step, unless it be the one they have taken,

in this case.”); Insurance Co. v. Comstock, 83 U.S. 258, 270-71

(1872); McClellan v. Carland, 217 U.S. 268, 280 (1910) (“But

we think it the true rule that where a case is within the appellate

jurisdiction of the higher court a writ of mandamus may issue in

aid of the appellate jurisdiction which might otherwise be defeated

by the unauthorized action of the court below.”); Ex Parte Simons,

247 U.S. 231, 239 (1918) (Holmes, J.) (“If we are right, the order

was wrong and deprived the plaintiff of her right to a trial by

jury.”); Ex Parte United States, 287 U.S.241 (1932) (refusal to

perform a plain ministerial duty); Williams v. Simons, 355 U.S. 49

(1957) (per curiam);® Beacon Theaters v. Westover, 359 U.S. 500

(1959); Thermtron Products Inc. v. Hermansdorfer, 423 U.S. 336,

352 (1976); Miller, 530 U.S. at 349-50 (holding constitutional

5When Interior refused to provide Petitioners any ‘formation concerning the

sanctions imposed against them, failed

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