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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 1020

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0111%3A1. Public record. Not legal advice.