Petition for Writ of Certiorari — Parker v. United States Air Force

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FILE

99 538 sep 21 19%

No. OFEEE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1999

HOBERT PARKER, Jr., Petitioner

VS.

UNITED STATES AIR FORCE AND

UNITED STATES OF AMERICA, Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Hobert Parker, Jr.,

Petitioner, Pro Se

205 South Huntington Place

Lompoc, CA. 93436

Telephone: (805) 736-0380

Quix

IV

QUESTIONS PRESENTED

1. Whether Due Process is constitutionally required

after the issuance of a barment order from a military

installation which contains "regular allegations", punishable

by imprisonment, which impose a badge of infamy on the

accused person.

2. Whether the First Amendment protects speech during

a private telephone conversation that was not perceived as

threatening by the sole-direct witness.

3. Whether barment orders from military installations are

required to comply with:

A--18 U.S.C., Section 1001 (prohibits false official

statements).

B--Applicable military regulations (e.g. Air Force

Instruction 31-209, chap. 2, para. 2.8,

“Barment orders should be in writing and

contain sufficient details to support prosecution

by civilian authorities.")

C--The Administrative Procedures Act, 5 U.S.C.,

Sections 700-706 (agency action must be based

on facts or substantial evidence).

4. Whether the Court will require that the actions and

statements of military authorities before the issuance of a

barment order--and any EXCEPTION within the barment

order itself--are to be consistent with their allegation within

a barment order that the accused person is considered to be

a threat to the maintenance of good order and discipline on a

military installation.

Vv

LIST OF PARTIES

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

page.

VI

TABLE OF CONTENTS

PAGE

. QUESTIONS PRESENTED....0000 i

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TAREE, OF CONTENTS. ...0..0.0...00cccccescceceseceseceses. iil

NRE Te ER Iv

TABLE OF AUTHORITIES CITED... Vv

PETITION FOR WRIT OF CERTIORARI... |

RS l

IE AR SE l

. CONSTITUTIONAL AND STATUTORY

PROVISIONS PROVIDED...000ooooo oon. 2

10. STATEMENT OF THE CASE... 3

11. REASONS FOR GRANTING THE WRIT........ 13

Sa i bcs cinecscasoss nésuasic cease 18

vil

APPENDICES INDEX

APPENDIX A Decision of the Ninth

Circuit Court of Appeals.

APPENDIX B Decision of the

United States District Court.

APPENDIX C Findings and Recommendations of

United States Magistrate Judge.

APPENDIX D---------Denial of Petition for Rehearing by

Ninth Circuit Court of Appeals.

Vili

TABLE OF AUTHORITIES CITED

CASES:

Bridges v. Davis, 443 F.2d 970

ee Se oo ee ee 14

Cafeteria & Restaurant Workers v.

McElroy, 367 U.S. 886,

81S. Ct. 1743, 6 L.Ed. 2d

en ee 11, 13, 15, 16, 18

Guerrero _v. Stone, 970 F.2d 626

Ra NE RN 14

Joint Anti-Fascist Ref C ;

vy. McGrath, 341 U.S. 123, 71

S.Ct. 624, 646, 95 L.Ed. 817 (1951)... 14

State v. Wilbourn, 219 Iowa 120, 257 N.W.

United States v. Evans, 559 F.2d 244

(Sth Cir. 1977) cert. den.,

435 U.S. 945, 98S. Ct. 1528

Mite MSCS... 17

Wieman v. Updegraff 344 U.S. 183,

pe eee ennna aes 14,15

STATUTES:

PAGE

Administrative Procedures Act, 5 U.S.C.,

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Bee Cig IID De vccncnnssccsncecsnseestassetonoesnsesio’ 16, 17

p ES Te Ee - | | | nC rn Om ]

RULE:

United States Supreme Court Rule 10 (a).........0000.000..... 17

OTHER:

Air Force Instruction 31-201, chap. 6,

SEEN, TOE bsconsesogunisntnecnetuiinlisieladsentbesilianmmedaeeteads 3

Air Force Instruction 31-201, chap. 7,

Eh Niels Dasencinstneneneisepehtsinliahinnbenmadesiaememenied 6

Air Force Instruction 31-201, chap. 8,

IIE: iS inntonnidnsniccousecsninsaviahuainiclichansaainadaesamelonmel 4

Air Force Instruction 31-209, chap. 2,

III III cisicitcislenic aiah on ciiak diel tndeosietiondeatamaaaeanancane 14

Be I SEI scccaccsocsssnsabeinateniancimnnmemmiameimaatian 4

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to

review the judgment below from the Ninth Circuit Court of

Appeals.

IX

OPINIONS BELOW

The opinion of the United States Court of Appeals

appears at Appendix A to the petition and is unpublished.

The opinion of the United States District Court appears

at Appendix B to the petition and is unpublished.

xX

JURISDICTION

The date on which the United States Court of Appeals

decided Petitioner's case was March 23, 1999.

A timely petition for rehearing was denied by the United

States Court of Appeals on July 22, 1999, and a copy of

the order denying rehearing appears at Appendix D.

The jurisdiction of this Court is invoked under 28

U.S.C., Section 1254 (1).

XI

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

UNITED STATES CONSTITUTION,

First Amendment (protects speech)...................:0::05 15

UNITED STATES CONSTITUTION,

Fourth Amendment (requires probable cause

UNITED STATES CONSTITUTION,

Fifth Amendment (requires due

SE cticceibgnn ‘snnnnepantina 11, 12, 13, 14, 15, 16, 17, 18

Administrative Procedures Act, 5 U.S.C.,

Sections 700-706 (requires that agency

Air Force Instruction 31-201, chap. 6, para.

6.2.2 ("military authorities may not investigate

or arrest persons not subject to the UCMJ

[Uniform Code of Military Justice] " ).................0..004. 3

Air Force Instruction 31-201, chap. 7,

para. 7.1.2 ("Since civilians are not normally

subject to the UCMJ [Uniform Code of

Military Justice] refer civilian violators to a US

Magistrate for judicial disposition or to the local

civil authorities having jurisdiction")...........0..00....0ccc0e. 6

Air Force Instruction 31-201, chap. 8,

para. 8.2.1 (requires Security Police to

obtain the installation commander's (or

appointed military magistrate's) permission

to conduct a probable-cause search)................0...ccc000. 4

Air Force Instruction 31-209, chap. 2,

para. 2.8 (barment orders should be in

writing and contain sufficient details to

support prosecution by civilian authorities)................... 14

Xi

STATEMENT OF THE CASE

1. On November 3, 1993, the Vandenberg Air Force

Base ("VAFB") Chief of Security Police Investigations, a

Master Sergeant, issued and authenticated a pick up order

for the Petitioner, Hobert Parker, Jr., a civilian. The pick up

order was issued despite being specifically prohibited by Air

Force Instruction 31-201, chap. 6, para. 6.2.2 ("military

authorities may not investigate or arrest persons [i.e.

civilians] not subject to the UCMJ [Uniform Code of

Military Justice].") The pick up order was in response to a

telephoned report or complaint received from a hearsay

witness. This pickup order was, also, issued in spite of the

requirement of Air Force Instruction 31-201, chap. 8, para.

8.2.1, which states: "Security police will obtain the

installation commander's (or appointed military magistrate's)

permission to conduct a probable-cause search." Despite a

Freedom of Information Act Request, dated March 6, 1995,

the Petitioner has not been provided with any written

evidence that prior permission to search was obtained.

2. The basis for the pick up order was:

"TRESPASSING/COMMUNICATING A THREAT &

UNAUTHORIZED POSSESSION OF VAFB_ ID

PASSES."

3. The true facts related to the alleged causes for the

Petitioner's arrest were:

A. TRESPASSING--The non-secured, area where the

Petitioner was allegedly trespassing was wide-open to the

public. Base-entry passes were not required for this non-

secured area. For people to obtain a base-entry pass for an

initial entrance into the secured area it was necessary to

enter this non-secured area. There were not any “no

trespassing" signs in this non-secured area. However, there

was a very-visible sign directing visitors to park in a specific

parking lot where the Petitioner had parked on several

different days. Before the issuance of the pick up order the

Petitioner was never ordered to vacate this non-secured area

while peacefully standing there, for short periods of time, on

several different days. (Trespasser: A person who enters

on the property of another without any right, lawful

authority or an express or implied invitation or license.

Black's Law Dictionary, Fifth Edition, 1979) Therefore, the

above facts do not constitute trespass. (See District Court

Clerk's Record 38, at page 5, paragraphs 25-31.)

4

B. COMMUNICATING A THREAT--The sole-

direct witness received inadequate questioning by the

VOLO Ve It Wa UeCessal\ 6

. Or something to that

effect." (Emphasis added.), (The Air Force's response to

Interrogatory no. 11 [see District Court Clerk's Record 33,

at pages 27-30] was that the Air Force has no information

with which to respond to questioning about the perception

of the sole-direct witness in relation to an alleged threat.)

The hearsay witness telephoned the Security Police 18 days

after the Petitioner's telephone conversation with the sole-

direct witness. During this time span the hearsay witness

offered to rehire the Petitioner to, again, work on VAFB.

(The Petitioner asserts that if the sole-direct witness did

not perceive a threat or make a report to the Security Police

it is illogical and unreasonable for any other person to state

that a threat was made.)

C. UNAUTHORIZED POSSESSION OF VAFB ID

PASSES--The Petitioner had resolved this issue prior to

November 3, 1993, with the Pass & ID Section of the

Security Police. However, the Investigator neglected to

inquire with Pass & ID, or any other person, prior to issuing

the pick up order. This prior resolution is confirmed by the

audio-tape recording of the Petitioner's interrogation on

November 15, 1993. New records created after the arrest

do not mention this alleged offense. (Compliance with

existing investigative procedures would have prevented this

alleged offense from being included on the pick up order.)

4. Although required by the Air Force's own regulations,

civilian law enforcement was never contacted either before

or after Petitioner's arrest. (Air Force Instruction 31-201,

chap. 7, para. 7.1.2 states, "Since civilians are not normally

subject to the UCMJ [Uniform Code of Military Justice],

refer civilian violators to a US Magistrate for judicial

disposition or to the local civil authorities having

jurisdiction.") The Petitioner had no knowledge of any type

of police controversy prior to his arrest on November 15,

1993. The Petitioner's normal reaction to his unexpected

arrest was shock and anger. The Petitioner has never

been provided with any written statement from the

security police who were assigned to the security gate prior

to Petitioner's arrest. Nor has any written evidence been

received which contains a complaint by any person--except

for the hearsay witness--about the Petitioner's conduct prior

to his arrest.

- A--The subsequent interrogation of Petitioner was, for

the most part, tactful and was audio-tape recorded at the

Petitioner's request. The Petitioner was released--without

any charges ever being filed--after being in custody for 2

hours and 45 minutes and a consented search of the

Petitioner's vehicle which was in the nonsecured area.

5. On November 16, 1993, unbeknownst to the

Petitioner, statements were faxed to the Security Police by

the General Foreman (the hearsay witness) and the

Superintendent (the sole-direct witness). A pertinent part of

a written statement by the Superintendent states: "During

one of his [Petitioner's] phone calls to me he mentioned he

6

much more about it, but I did mention the conversation

about the gun to my General Foreman." (Emphasis added.)

6. On July 5, 1994, the VAFB Judge Advocate mailed to

the Petitioner an "insufficient evidence to warrant

prosecution" letter. (At this time neither the Commander--

nor any other person--considered the Petitioner to be a

"security risk" or believed a barment order was necessary. )

7. In October of 1994, the Petitioner was issued an

unrestricted, base-entry pass to work on South VAFB, an

extremely-high-security area--the location where the alleged

offenses occurred. (Again, indicating there was no security

risk or need for a barment order.)

8. There was absolutely no law enforcement activity in

relation to the Petitioner on VAFB between July 5, 1994,

and December 30, 1994, when the Petitioner received a

partial-barment order from VAFB. Nor was there any

indication of any type of problem or complaint involving the

Petitioner on VAFB. (In reference to the impropriety of

nos. 6, 7, and 8, above and the "considered to be a threat to

the maintenance of good order and discipline on this

installation" within the partial-barment order, please refer

back to page i, QUESTIONS PRESENTED, no. 4.)

9. The Petitioner was deprived of possible witness

statements, despite several Freedom of Information Act

Requests, until Petitioner "accidentally" received them from

Defendant-Cook's-Welding in small claims court on

December 8, 1994. The Petitioner had no prior knowledge

that the Air Force possessed any witness statements. (These

statements are referred to in no. 5 above.)

10. On November 9, 1994, the Petitioner requested,

within a letter (with U.S. Senator Dianne Feinstein as an

intermediary), a 45 minute appointment with the Air Force

Secretary who was scheduled to visit VAFB on January 9,

1995. The quoted purpose for the requested appointment

was:

"Currently, there is a raging controversy between

the VAFB Security Police, the VAFB Judge

Advocate's office, and me, Hobert Parker, Jr.

The advantages:

A-For You-An opportunity to correct a wrong

and thereby reduce the effects of the afore-

mentioned controversy and prevent damaging

publicity and controversy and possibly prevent

another "trouble" [a lawsuit] which You--like all

people--could do with out.

B-For me-Justice."

The request for an appointment was denied. During this

time span the Petitioner had, also, made a_ reservation to

attend a social function, featuring the Secretary, at the

Officer's Club on VAFB to which the public was invited by a

local newspaper article. The Petitioner asserts that the tue

cause for the barment order was an intention to prevent the

Petitioner from talking with the Air Force Secretary.

11. On December 30, 1994, the VAFB Commander

issued a barment order for the Petitioner. The order

informed that the Petitioner was considered to be a threat to

the maintenance of good order and discipline on the

installation. The alleged crimes stated in the order were:

“your [Petitioner's] involvement in trespassing, nuisance

telephone calls, verbal threats, and, disorderly conduct

between 13 Oct and 11 Nov 93, while on Vandenberg

AFB. Additionally, you are considered to be a threat to

individuals who work on, or visit, the confines of

Vandenberg AFB." The order contained an exception

which allowed the Petitioner, with limitations, to enter and

work on South VAFB, an extremely-high-security area and

the location where the stated offenses allegedly occurred.

A--This exception stimulates this proper question:

Whether the exception belies and nullifies the Commander's

assertion that the Petitioner's presence on VAFB was

considered to be a threat to the maintenance of good order

and discipline?

B- The basis for the barment order (and the investigative

report) specifically states that the alleged offenses occurred

"between 13 Oct and 11 Nov 93". However, according to

other Air Force official records the allegation of disorderly

conduct allegedly occurred on November 15, 1993, when

the Petitioner was arrested. The allegation of nuisance

telephone calls, according to other Air Force official

records, allegedly occurred after November 15, 1993.

12. On March 28, 1995, the Petitioner requested, in

writing, that the VAFB Commander provide proof of the

allegations in the barment order or that criminal prosecution

of Petitioner be arranged. There was no response.

9

13. From the Air Force Legal Services Agency, the

Petitioner received by "accident" part of an inter-office

memorandum, dated 26 Jul 1995, which states, in pertinent

part, "If claimant was represented by a competent attorney, I

believe we would have some exposure as to a claim for false

arrest/imprisonment. But if a wrongful detention was

proved, I do not believe a judge would award more than the

most nominal of damages, given the facts of this case." (See

District Court Clerk Record no. 36, Exhibit 8, page 0136.)

14. After Petitioner made several unsuccessful

administrative attempts to obtain proof of the barment

order's allegations, he initiated litigation in District Court on

August 28, 1996. The primary purpose was for a District

Court order requiring the Air Force to provide proof of the

accusations within the barment order or to retract them.

15. In all of the documents the Petitioner has submitted

to the lower Courts, the Petitioner has never challenged the

barment order, per se, or the Commander's authority to

exclude persons from the Base; rather, the challenge has

been to the truth of the allegations which were stated as the

official basis for the barment order.

10

16. The Magistrate's Report and Recommendation

(adopted by the District Court) in pertinent part states:

A--"Plaintiff seeks an evaluation of the truth of the facts

underlying the allegations in the administrative record which

is clearly beyond the permissible scope of review. This

Court is limited to consideration of the question whether,

assuming the allegations in the record are true, defendants’

barment order based on those facts was patently arbitrary or

discriminatory. Cafeteria Workers, id' Review of the

record makes it abundantly clear that the conduct attributed

to plaintiff, if true, would justify a barment order in the

interest of maintaining order, safety, and security on

Vandenberg Air Force Base." (See Appendix C, page 13,

lines 17-23 and page 14, lines 1-3.)

B--"Similarly, the commanding officer here was well

within his broad discretion in deciding to bar plaintiff based

on the evidence contained in the administrative record, even

considering those facts which plaintiff concedes. Plaintiff

admittedly engaged in at least some conduct which could

reasonably be considered disorderly, harassing and

threatening. Although explanations, excuses or extenuating

circumstances may exist, it is clear that the commander's

decision was not irrational, and there is no support for a

finding that the decision was patently arbitrary or

discriminatory. Accordingly, plaintiffs motion for summary

judgment should be denied and defendants’ motion should be

granted." (Emphasis in original. )

1 367 US.

886, 898, 81 S.Ct. 1743, 6 L.Ed. 2d 1230 (1961).

11

C--In "A", above, the Magistrate's Report states that

evaluation of the facts underlying the allegations in the

administrative record "is clearly beyond the permissible

scope of review." However, further in the paragraph there

is mention that the record was reviewed--"review of the

record makes it abundantly clear... ." Also, in "B", above,

the Magistrate's Report does not specify what “some”

admitted conduct there was "which could reasonably be

considered disorderly, harassing and threatening." The

Petitioner has not admitted any of the alleged offenses stated

in his barment order which were the specific, official basis

for the order. The truth of these alleged offenses are what

the Petitioner has challenged in this litigation. (All other

alleged offenses and/or those in the barment order and their

respective dates that were not specifically and correctly

stated in the barment order are not relevant and should not

be considered by the Courts. Accusers have the moral and

legal responsibility of being accurate when making

accusations.) [Please refer back to page 9, no. 11 "B".]

D--Neither are there any explanations for, nor examples

of, "Although explanations, excuses or extenuating

circumstances may exist... ." (These facts should have

been available for the scrutiny of the District Court and

higher Courts.)

12

Xi

REASONS FOR GRANTING THE PETITION

1. "The Fifth Amendment does not require a trial-type

hearing in every conceivable case of government impairment

of private interest, for though due process generally implies

and includes regular allegations, and a trial according to

some settled course of judicial proceedings, that is not

universally true." Const. Amend. 5; Cafeteria &

367 U.S. 886, 898, 81

S.Ct. 1743, 6 L.Ed. 2d 1230 (1961).

A--Petitioner asserts that "regular allegations" include the

type of offenses alleged in the barment order that Petitioner

was “involved in trespassing, nuisance telephone calls,

verbal threats, and, disorderly conduct between 13 Oct

and 11 Nov 93, while on Vandenberg AFB.

Additionally, you [Petitioner] are considered to be a

threat to individuals who work on, or visit, the confines

of Vandenberg AFB."

B--Petitioner asserts that due process should be the right

of any person who has been accused by a military

commander of offenses that are "regular allegations" which

are punishable by imprisonment if proved in a court of law.

2. "Consideration of what procedures due process may

require under any given set of circumstances begins with a

determination of precise nature of government function

involved as well as private interests that have been affected

by governmental action.". Const. Amend 5; Id, Cafeteria

Workers.

13

A--The Petitioner asserts that every person accused of

punishable offenses, by a military commander within a

barment order, has the private interest of the right to “be

heard before being condemned to suffer grievous loss of any

kind, even though it may not involve the stigma and

hardships of a criminal conviction is a principle basic to our

society." Joint Anti-Fascist Refugee Committee __v.

McGrath, 341 U.S. 123, 168,71 S.Ct. 624, 646, 95 L.Ed.

817 (1951).

B--"But it [a barment order] ought not to affix a "badge

of infamy," Wieman v. Updegraff 344 U.S. 183 at page

191, 73 S.Ct. 215 (1952) at page 218, to a person without

some statement of charges, and some opportunity to speak

in reply."

C--According to Air Force Instruction 31-209, chap. 2,

para. 2.8, "Barment orders should be in writing and contain

sufficient details to support prosecution by civilian

authorities." (The Petitioner was never prosecuted.)

D--"Administrative orders of commanding officers of

military installations are not beyond reach of the courts and

are not nonreviewable." Bridges yv. Davis, 443 F. 2d 970,

973-974 (9th Cir. 1971).

E--"The military is an "agency" within the meaning of the

Administrative Procedures Act," 5 U.S.C. poe ag

Guerrero vy. Stone, 970 F. 2d 626 (9th Cir. 1992).

only exceptions of the APA applicable > is a

those for "military authority exercised in the field in time of

war or in occupied territory" and “courts martial and military

commissions." Guerrero at p. 628. "Military Records

Board decisions are subject to judicial review" and “can be

set aside if they are arbitrary or not based on substantial

evidence." Id at p. 628.

14

3. It is important for the Court to clarify whether the

First Amendment protects speech that is not perceived as

threatening by the sole-direct witness during a private

telephone conversation.

A-Threat: “All that is necessary is that it be definite

and understandable to a mind of ordinary intelligence."

State ___y.__Wilbourn, 219 Iowa 120, 257 N.W. 571.

According to the Law the perception of the sole-direct

witness is the primary, if not the only, determinant of

whether a true threat was made. (The sole-direct witness,

the job Superintendent, did not perceive a threat or initiate

a complaint or report to the VAFB Security Police. The Air

Force's response to Interrogatory no. 11 was that it has no

information with which to respond to questioning about the

perception of the sole-direct witness in relation to an alleged

threat.)

B--"Governments need and have ample power to punish

unreasonable acts. But it does not follow that they must

have a further power to punish thought and speech as

distinguished from acts." Wieman v. Updegraft, 344 U.S.

215, at page 220; 73 S. Ct. 215 (1952).

4. “State and federal governments, even in exercise of

their internal operations, do not constitutionally have

complete freedom of action enjoyed by private employers.”

Id, Cafeteria Workers

A--The Petitioner has never challenged his barment

order, per se, or the Commander's internal operations

authority to exclude persons from the Base; rather, the

challenge has been to the accuracy of the "regular

allegations" officially stated within the barment order.

15

B--Despite this specific, repeated "non-challenge" in

documents submitted to lower Courts, the Courts have not

ordered the Air Force to furnish proof of the accusations or

to retract them as requested in Petitioner's Complaint. The

Petitioner respectfully asserts that if the Air Force has

complied with 18 U.S.C., Section 1001 (prohibits false

official statements) there is no valid cause for its continued

refusal to provide proof of the allegations against the

Petitioner or to retract them. Nor is there proper cause for

the lower Courts to not order the Air Force to furnish proof

of the allegations or to retract them.

5. It is important for the Supreme Court to issue a ruling

as to whether the veracity of the accusations within a

military barment order is, or can be, a separate and distinct

Fifth Amendment issue WITHOUT a challenge to the

barment order, per se, or the Commander's authority to

exclude civilians from a military installation.

6. It is important for the Supreme Court to issue a ruling

whether, and to what extent, any evidence derived from a

false arrest can be the basis for accusations within a

barment order.

7. Cafeteria & Restaurant Workers v. McElroy, 367

U.S. 886, 898, 81 S.Ct. 1743, 6 L.Ed. 2d 1230, (1961) is

the primary and dominant Supreme Court decision in

relation to military barment orders. The litigant therein was

described as being, simply, a "security risk". It is important

for the Supreme Court to issue a ruling to provide judicial

guidance for the issuance of military barment orders where

the facts are greatly different--e.g. this case-- from Cafeteria

Workers and which will cause the standards of Cafeteria

Workers to be judicially inapplicable and improper.

(Cafeteria Workers allows a Commander to exclude persons

from a military installation for all but patently arbitrary and

16

Capricious causes. The APA only uses arbitrary and

capricious. )

8. It is important for the Court to clarify whether the

Fourth Amendment requires that military authorities:

A--Determine whether the sole-direct witness perceived

a threat before alleging this offense within a pick up order.

B--Determine whether there is probable cause that

trespassing has occurred before alleging this offense within a

pick up order.

C--Provide, within a reasonable time, complaining-

witness statements when requested by an arrestee.

9. United States Supreme Court Rule 10 ree

has so far departed from the accepted and usual course of

judicial proceedings, or sanctioned such a departure by a

lower court, as to call for an exercise of this Court's

supervisory power."

A--The Petitioner filed his District Court action under

the Administrative Procedures Act, 5 U.S.C., Sections 700-

706, which states that Courts have the duty to review

agency administrative actions which must be based on facts

or substantial evidence. There is a violation of 18 U.S.C.,

Section 1001 when official statements are made, ". . .or at

least [made] with reckless disregard of truth and with

conscious purpose to avoid learning truth." United States

v. Evans, 559 F. 2d 244 (Sth Cir. 1977) cert. den.,

435 U.S. 945, 55 L. Ed. 2d 542, 98 S.Ct. 1528 (1978).

B--Despite these APA review requirements the District

Court's ruling was: “Plaintiff seeks an evaluation of the facts

underlying the allegations in the administrative record which

17

is clearly beyond the permissible scope of review. This

Court is limited to consideration of the question whether,

assuming the allegations in the record are true, defendants'

barment order based on those facts was patently arbitrary or

discriminatory. Id., Cafeteria Workers."

C--The Ninth Circuit Court of Appeals’ Memorandum

affirming the District Court decision stated in pertinent part,

"the Air Force determined Parker trespassed on the Base

and was guilty of disorderly and threatening conduct."

However, on July 5, 1994, the Vandenberg AFB Judge

Advocate sent the Petitioner an “insufficient evidence to

watrant prosecution letter." This letter is part of the

evidence the Petitioner has submitted to the lower Courts.

This contradiction stimulates reasonable doubt as to whether

all evidence had been adequately or properly considered by

the Court of Appeals. Also, the Memorandum does not

mention how or when "the Air Force determined Parker

trespassed on the Base and was _ guilty of threatening and

disorderly conduct." There was no due process whatsoever.

(Every person is presumed innocent until proven guilty.)

XIV

CONCLUSION

The petition for a writ of certiorari should be granted.

Dated: September 15, 1999.

AL Leaf UBMIATED

Abul lack fp

L

Hobert Parker, Jr., _ f

Petitioner, Pro Se

18