Petition for Writ of Certiorari — Rivera, In re: (No. 08-900)

Supreme Maur $78

oe oe Mah

\\Y | 0, 08 900 JAN 5 - 2009

IN THE SUPREM EPS IGRROF THE CLERK

OF THE UNITED STATES

IN RE ANGEL RUIZ RIVERA

Petitioner

Vv.

THE HONORABLE SANDRA LYNCH

CHIEF JUDGE

U.S. COURT OF APPEALS

FOR THE FIRST CIRCUIT

Respondent

ON PETITION FOR A WRIT OF MANDAMUS

TO THE UNITED STATES SUPREME COURT

Se eee eee eee BME BOE OO BEBE ETH OH OM KO MK ROE MO Bee BBB ee Oe Me eee eee

PETITION FOR A WRIT OF MANDAMUS

Angel Ruiz Rivera

Pro Se

P.O Box 191209

San Juan, P.R. 00919.

787-435-3512

QUESTIONS PRESENTED

Can a U.S. Court of Appeals refuse to evaluate a

petition for rehearing en banc timely filed by a

named party to the controversy and its appeal and

consequently forfeit the right of that party to appeal

from an action that finally disposes of one’s rights

which has a statutory basis? 28 U.S.C. section 1291.

Can a U.S. Court of Appeals rule against the

precedents of eight (8) different Circuit Courts

including itself, when it determined that a named

party to the controversy negatively affected by its

decision cannot continue to appear on its appeal,

especially when same party was the one who filed

the Notice of Appeal, upon which the Circuit acted?

Can a U.S. Court of Appeals rule against the stare

decisis of this Court in a decision where thou

addressed the pertinent legal issue expressly,

explicitly and with specificity?

LIST OF ALL THE PARTIES

The Petitioner is: Angel Ruiz Rivera.

The Respondent is The Honorable Sandra Lynch

Chief Judge of the U.S. Court of Appeals for the

First Circuit

CORPORATE DISCLOSURE STATEMENT

I the Petitioner, Angel Ruiz Rivera, appearing here

Pro Se, hereby certify that there is no parent

corporation, or publicly held company owning 10% or

more of the corporation's stock

il

TABLE OF CONTENTS

L, Dub SCiOts POMOMEOE ao oo cdes cc cecssccccavcccerccaveccensess il

D.. LAR OE Fe CO FCO iia .ns iis cc cnccece sivedcsewsicovseevens ill

3. Corporate Disclosure Statement................. 220000 ll

Ee Flin iv ccivnncavcecsepisa cinereus iV

Ci, "Taer ee COE FE a vo a sic cs xe xtncncdaskcenans or dacsaces Vv

6. Citations and the Official and Unofficial Reports

of the Opinions and Orders Entered in the case by

CH Ci sic jain kth nncdisciescsstessnii ace 1

2 Concise Statement of the Basis for

I i ia Oe i ee 1

8. The Constitutional provisions, Treaties, Statutes,

Ordinances and Regulations involved in_ the

9. A Concise Statement of the Case setting out the

facts material to the consideration of the questions

NE os ideccitiens oer eve bila ee wae Renee 2

10. A Direct and Concise Argument amplifying the

reasons relied on for allowance of the

I see can ee ee ee a eee 3

0 Eo re ea ea er hae ne 7

Bey PROC IIIII ios ine csacsbiswsads ee eal 7

TABLE OF AUTHORITIES

CASES

AAL High Yield Bond Fund v. Banc of America

Securities, 361 F.3d 1305 (11th Cir. 2004).........00...... 5

Cardoza v. Pacific States Stee] Corporation, 320 F.3d

NE I, id oo sd oss bi rack vaoveaseeecaavanane 5

Castillo v. Cameron County, 238 F. 3d 325 (5th Cir.

CE a ig es Ne ede bapeeeseuuatin 5

Churchill Village v. General Electric, 361 F.3d 566

(9th Cir.

REET SSS NC ae er ony Py Pen LON, A A SE ane 5

Devhn v. Scardelleti, 122S.Ct.2005(2002) .............. 5

Goya Foods, Inc. v. Wallack Management Co., 290

Bele SA Se TOE TN os os cog acbiededaee kes detivceveeets. 5

Grace v. Bank of Leumi Trust Co. of New York, No.

O4-G624-c¥ (2d Civ. CAA BG) ics cc vascecccvsecvevccscenes A

Hispanic Society of New York City Police v. New

York City Police 806 F.2d 1147, (2"4-1r, 1986).........5

In_ re Estate of Marcos Human Rights Litigation, 94

tree ee ty. Bo ie wine vincbcucceccudencesbduncsdeccccnsesll

In re Piper Funds, Institutional Government Income

Portfolho Litigation, 71 F.3d 298, 301 (8th Cir.

CEOS ecco ta oe eC i ae eae dena aoin es 5

In re Sealed Cases, 363 U.S. App. D.C. 214, 381 F.3d

1205 (D.C. Cir. 2004).. NP TS ET TIT

Kaplan v. Rand, 192 F.3d 60 aia +e eee

Karaha_ Bodas Co. v. Perusahaan Pertambangan,

ETE Oe FAP, FR ion oss is sectnnceadceveccvssivssessect

Microsystems Software, Inc. v. Scandinavia Online

Fe, SOE 1k SO CLE Cie, BOO) on onside csswcccesesccessscsncd

Official Committee of Unsecured Creditors of

WorldCom, Inc. v. Securities and Exchange

Commission, 467 F.3d 73 (2d Cir. 2006)

Pediatric Specialty Care v. Arkansas Department of

Human Services, 364 F.3d 925, (8th-Cir, 2004)......0..... 5

Plain v. Murphy Family Farms, 296 F.3d 975 (10th

A |. ESS ae eee ae Ree TS

Securities and Exchange Commission v. Forex Asset

Management, 242 F.3d 325 (5th Cir. 2001)..............5

United States v. Alisal Water Corp., No. 02-15907

Se TNs cain asus van ay eukwab ONL bpp nike ddanevecinnuesl 5

United States v. Kirschenbaum, 156 F.3d 784 (7th

Velez-Diaz_v. Vega Irizarry, 421 F.3d 71 (1t*.

NN anv cio aceken tak cdaeenasakewake Vor <scaveeekkerencssssetn 6

RULES AND REGULATIONS

Rule 17 (b) Federal Rules of Civil Procedure.......... 3

Rule 35 Federal Rules of Appellate Procedure. ........ 1

STATUTES

rn NAG Yds niin vk na es at nen kin vacunadeepudecoeinens i11,4

ee ey irs ord acl nd snctndnae saipnda vce sewuvedudanaserwennenl 3

es NN Sas vin dss. Hap wes bons ves uaedenun ive ieee 1

re a or capensis a ndiecs 654 bss sa eek anes esesanneane 1

U.S. CONSTITUTION

Fifth (V) Amendment, specifically with regards to

the clause that forewarns that no person shall be

deprived of life, liberty, or property, without due

process of law

V1

CITATIONS AND THE OFFICIAL AND

UNOFFICIAL REPORTS OF THE OPINIONS AND

ORDERS ENTERED IN THE CASE BY THE

COURTS

Order of August 5, 2008 denying “Motion For

Conversion of the Motion Requesting Court To

Clarify Its Order Into A Motion For Panel Rehearing

and/or Rehearing En Banc’.

Order of April 30, 2008 denying Co-Plaintiff Angel

Ruiz Rivera’s “Motion For Reconsideration” of Order

dismissing him as a party.

CONCISE STATEMENT OF THE BASIS FOR

JURISDICTION

) ‘

The date the order sought to be reviewed was

entered was August 5, 2008.

Jurisdiction of this Court is authorized by 28 U.S.C.

1651. See also 28 U.S.C. 1361.

THE CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES, ORDINANCES AND

REGULATIONS INVOLVED IN THE CASE.

Fifth (V) Amendment, specifically with regards to

the clause that forewarns that no person shall be

deprived of life liberty, or property, without due

process of law.

Rule 35 of the Federal Ruics of Appellate Procedure.

CONCISE STATEMENT OF THE CASE SETTING

OUT THE FACTS MATERIAL TO THE

CONSIDERATION OF THE QUESTIONS

PRESENTED

The Petitioner is the promoter, Co- Plaintiff,

signatory and filer of the controversy below and of

all the Notices of Appeals, that of the appeal object of

the instant Petition and still others that have

evolved from the original petition for judicial review

of the final agency decision initially captioned at the

U.S District Court for the District of Puerto Rico

(P.R.) as: “Angel Ruiz Rivera and Instituto de

Educacion Universal (IEU), Inc. v. U.S. Department

of Education (USDE)”, 98-2225(RLA). The Petitioner

also acted as same for its first appeal 99-1628

(vacated and remanded; and subsequent appeals; 05-

1775 and 06-1562, all “evaluated” by the First

Circuit. He also acted as same in_ preceding

controversy 96-1893(JAF), appeal 99-1398, (the

Bivens Complaint), which was consolidated with 99-

1628. By vacating and remanding the latter and not

the former, the First Circuit produced the

contradictory result of pre-exonerating the federal

officers involved in the controversy before’ the

judicial review of their actions was scrutinized by

the District Court to which it was remanded.

Presently, Petitioner is awaiting resolution of

an “Urgent Motion To The Chief Judge Beseeching

For A Ruling On The Motion For Rehearing En Banc

Timely Filed” in appeal 06-1562. See Appendix below

under vi.

The instant Petition is filed to request that

thou order the First Circuit Judge to rule upon the

above Motion, accord the jurisprudence of eight (8)

tr

circuits, including itself, and thou own stare decisis.

If the First Circuit may be allowed to not rule, the

due process rights of the Petitioner wiil be

confiscated, after more than twelve years (12)

struggling, not only for Justice, but for a modicum of

due process, in licu of a trial on its merits. All this in

a controversy where overwhelming smoking gun

evidence was timely produced proving abuse of

process and fraud upon the courts.

The basis of jurisdiction in the court of first

instance were: 28 U.S.C. 1331, 1332, and Rule 17 (b)

of the Federal Rules of Civil Procedure.

DIRECT AND CONCISE ARGUMENT

AMPLIFYING THE REASONS RELIED ON FOR

ALLOWANCE OF THE WRIT.

Heretofore, all the last motions filed before

the Circuit by the Petitioner have been denied based

on the Circuit’s evidently obvious’ erroneous

determination that he somehow discontinued to have

standing to appear in the present appeal (06-1562),

because at an earlier appeal (05-1775), it determined

that because during the first appeal of this

controversy (99-1628), Petitioner had withdrawn his

appearance once he was able to retain legal counsel

for the Co-Plaintiff/Co-Appellant, Instituto de

Educacion Universal (IEU), Inc., ergo, he forfeited

his right to appeal this latest and different appeal of

a different decision. For the Circuit, even when he

was a named party and much more as we have seen,

that withdrawal had the effect of forfeiting his legal

rights in the subsequent appeals that have ensued,

even when it was Petitioner himself the one who

filed #!) «i the Notice of Appeals in this and even all

of the appeals that ensued.

Incidentally, Petitioner Angel Ruiz Rivera, for

many years, had been appearing Pro Se for IEU the

corporation, before the administrative agency forum,

including before its own Administrative Law Judge

(ALJ), the District Court judges and even the own

First Circuit panel and en banc, with all these

forums legally untenable acquiescence. ' Now, not

only have all the above mentioned motions been

denied by the First Circuit, based on the supposed

discontinuance of the Co-Plaintiff/Co-

Appellant/Petitioner standing to continue appearing,

but they have also been ordered to be stricken from

the record.

Petitioner has timely filed motions requesting

the First Circuit to clarify why in denying these

timely filed motions and ordering them to _ be

stricken from the record, it has departed from the

jurisprudential precedents of cight (8) circuits

including itself. In these decisions, cited infra, the

stare decisis of this Court has been ratified in that

“the right. of that party to appeal from an action that

finally disposes of one’s rights which has a statutory

basis”. 28 U.S.C. section 1291, as cited in Devlin,

infra.

The First Circuit has judicial knowledge of the

fact that the Internal Revenue Service (IRS) imputed

Trust Funds laabilities over Petitioner Ruiz Rivera

personally for the taxes allegedly owed by the

corporation, I[EU, making him the “responsible

person” (IRS Code section 6672), ergo, lable for

those taxes. Consequently, Ruiz Rivera's standing to

' Incidentally, Petitioners have cited Grace v. Leumi ‘Trust Co.

ot New York, No. 04-5824-cv (2d Cir. 04/04/2006), in support of

their proposition that for this reason only, the appeal below

should be granted and the controversy below declared void.

appear in the instant appeal has been pre-empted,

ergo, preserved by the IRS actions over his person,

which negatively affect him, his successors and are

not dischargeable even through a_ personal

bankruptcy. For this reason, he has claimed

elsewhere that this predicament he has consequently

fallen into, is the quintessential injury in fact

provoked by the government, deserving de minimis,

the right to defend oneself.

See Hispanic Society of New York City Police

v. New York City Police 806 F.2d 1147, (2"¢ Cir, 1986);

In re Piper Funds, Institutional Government Income

Portfolio Litigation, 71 F.3d 298, 301 (8th Cir. 1995);

In re Estate of Marcos Human Rights Litigation, 94

F.3d 539 (9th Cir. 1996); United States vy.

Kirschenbaum, 156 F.3d 784 (7th Cir. 1998); Kaplan

v. Rand, 192 F.3d 60 (2d Cir. 1999); Microsystems

Software, Inc. v. Scandinavia Online AB, 226 F.3d 35

(Ist Cir. 2000); Castillo v. Cameron County, 238 F.

3d 325 (5th Cir. 2001); Securities and Exchange

Commission v. Forex Asset Management, 242 F.3d

325 (5th Cir. 2001); Karaha Bodas Co. v. Perusahaan

Pertambangan, 313 F.3d 70 (2d Cir. 2002); Goya

Foods, Inc. v. Wallack Management Co., 290 F.3d 63

(1st.Cir.5/17/2002); Plain v. Murphy Family Farms,

296 F.3d 975 (10th Cir. 07/16/2002); Cardoza_vy.

Pacific States Steel Corporation, 320 F.3d 989 (9th

Cir. 2003); AAL High Yield Bond Fund v. Banc of

America Securities, 361 F.3d 13805 (11th Cir. 2004),

Churchill Village v. General Electric, 361 F.3d 566

(9th Cir. 2004); Pediatric Specialty Care v. Arkansas

Department of Human_ Services, 364 F.3d 925,

(SthCir, 2004); In re Sealed Cases, 363 U.S. App. D.C.

214, 381 F.3d 1205 (D.C. Cir. 2004); United States v.

Alisal Water Corp., No. 02-15907 (9th Cir. 2005);

ae) |

Velez-Diaz_v. Vega Irizarry, 421 F.3d 71 (1,

9/2/2005); Official Committee of Unsecured Creditors

of WorldCom, Inc. v. Securities and Exchange

Commission, 467 F.3d 73 (2d Cir. 2006).

More importantly, the First Circuit decisions

against Ruiz Rivera in this vein are inconsistent and

directly in conflict with this Court's special reference

to the specific legal issue in question on its express

clarification in Devlin v. Scardelleti, 122 S.Ct. 2005,

(2002) where thou admonished that:

We have never, however, restricted the

right to appeal to named parties to the

litigation. (Citations omitted). (Emphasis

added).

In view of all the above cited precedents, it is

diaphanously clear that the Circuit’s order

preconfiscating the due process rights of Angel Ruiz

Rivera is not only inconsistent with all judicial

precedent but discriminatory and an usurpation of

its own authority. It is only consistent with the

extreme bias and prejudice with which all the

Petitioner's prayers for Justice have been treated for

the past long twelve (12) years. This amidst the fait

accompli that the Petitioners timely produced

overwhelming exonerating evidence that prove

without a doubt that they were victims of a

vexatious abuse of the legal process, originated by

the USDE legal counsels who occluded exonerating

evidence, suborned perjury, intimidated witnesses,

obstructed justice and committed fraud upon the

courts.

All of the above due process violations have been

heretofore condoned with total impunity, due to the

egregious dereliction in their ministerial and ethical

6

duties by the intervening U.S. Attorneys who

neglected to prevent this fraud, while acting in their

investigative role as their client agency counsels. See

related controversy, Ruiz Rivera v. Gonzales, Et Al,

Et Al., 08-1560 at the U.S. District Court for the

District of Columbia.

CONCLUSION

In summary, we respectfully pray that this

Court orders the Circuit to rule on the pending

petition for rehearing en banc, especially since in the

past our previous petitions for rehearing en banc

have been decided by a majority and not unanimity

of the judges. Incidentally, in the past, when this

same Petitioner has timely moved to request the

composition of the en banc vote, it has been also

unreasonably denied by the First Circuit. So | state,

allege and pray. Respectfully submitted, today,

Angel Rui

Pro Se

P.O Box 191209

San Juan, P.R.00919

787-435-3512

APPENDIX

I. The orders entered in conjunction with the

judgment sought to be reviewed.

It. Any other relevant order entered in the case by

courts or administrative agencies

Vi. Any other material the petitioner believes

essential to understand the petition.

~)

I. The orders entered in conjunction with the

judgment sought to be reviewed.

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NO. 06-1562

ANGEL RUIZ RIVERA, ET AL.

Plaintiffs, Appellants

w

U.S. DEPARTMENT OF EDUCATION, ET

AL.,

Defendants, Appellees.

Before

Lynch, Chief Judge, 'lorruelJa and Selya,

Circuit Judges

ORDER OF THE COURT

Entered August 5, 2008.

Currently pending in the above-mentioned

appeal are (1) the motion of Angel Ruiz-Rivera

asking that this court clarify its order of April

30, 2008 denying his motion reconsideration

and (2) a request that we convert the motion

for clarification into a motion for rehearing and

for a stay of mandate. However, and as noted

before, since appellant is not a proper party to

this appeal, these motions must be stricken.

So ordered.

By the Court:

/s/Richard Cushing Donovan

ii. Any other relevant order entered in the case by

courts or administrative agencies

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NO.06-1562

ANGEL RUIZ RIVERA, ET AL.

Plaintiffs, Appellants

v. '

U.S. DEPARTMENT OF EDUCATION, ET

Ade.

Defendants, Appellees.

Before

Torruella Circuit Judge, Selya, Senior Judge

and Lynch, Circuit Judge

ORDER OF COURT

Entered April 10, 2008.

For the reasons stated in one of our earlier

opinions in these proceedings, see Ruiz-Rivera

v. United States Dep’t of Education, No.U5-

1775, 2006 WL 1343431 (1st. Cir. May 10,

2006), the motion of Angel Ruiz Rivera for

reconsideration of our order dismissing him as

a party to this appeal is denied. Since

Ruiz_Rivera is not a party, the other pending

motions that he has filed must be stricken.

So ordered.

By the Court:

/s/Richard Cushiag Donovan

vi. Any other material the petitioner believes

essential to understand the petition

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

ANGEL RUIZ RIVERA AND

INSTITUTO DE EDUCACION UNIVERSAL

PLAINTIFFS/APPELLANTS

V. 06-1562

RICHARD RILEY AND THE

U.S. DEPARTMENT OF EDUCATION

DEFENDANTS/APPELEES

URGENT MOTION TO THE CHIEF JUDGE

BESEECHING FOR A RULING ON THE

MOTION FOR REHEARING EN BANC TIMELY

FILED

TO THE HONORABLE U.S. COURT OF APPEALS

FOR THE FIRST CIRCUIT (HUSCAIC):

Comes now the Co-Plaintiff, Co-Appellant,

(CP/CA), Angel Ruiz Rivera (ARR), appearing here

Pro se (PS), promoter, signatory and filer of the

controversy below, of its previous, related appeals,

and the instant one, and respectfully states, alleges

and pray as follows:

1. That as this HUSCAIC has judicial knowledge of,

this CP/CA appeared before the Defendants/Appellees

(D/A’s), the Secretary of the U.S. Department of

Mducation (USDE) and its ageney, Pro Se (PS) for

himself, and also in representation of CP/CA,

Instituto de Edueacion Universal (LEU).

2. That this HUSCAIC has judicial knowledge

of the fact that same appearance by this CP/CA, a lay

person, for [EU the corporation, was done in good

faith, and due to the P/A’s lack of capacity to pay

legal counsel. This incapacity only grew as a result of

the D/A’s having unconstitutionally preconfiscated

without due process on February 1997, through a

Notice of Offset, all the funds owed to the P/A’s at the

time ($2.263 million dollars), while the

Administrative Law Judge (ALJ) decision had been

appealed to the Secretary by both parties, and

consequently was not final much less firm. This clear

taking of property without due process, was a reprisal

taken against the P/A’s by various of the same USDE

officers who were also Defe:dants in related

controversy 96-1893 (JAF), a Constitutional, Civil

Rights and Bivens torts action, timely filed against

them by the P/A’s. It was done in obvious retaliation

for the latter having exerted their First Amendment

rights by suing the government for the redress of

grievances and these own officers for their egregious,

vexatious and wanton ultra vires and discriminatory

acts against the P/A’s for reason of their national

origin and ethnicity. This taking also injured our

Sixth Amendment rights to retain the legal counsel of

our choice.

3. That same appearance by this CP/CA for IU

the corporation during the administrative

proceedings was never opposed nor objected to by the

USDE legal counsels most probably since it obviously

worked to their advantage to litigate against a

functionally illiterate in legal matters.

4. That we learned ex-post-facto that the

applicable and controlling stare decisis of the U.S

Supreme Court (the Court), as established in

Rowland v. California Men’s Colony, 506 U.S. 194

(1993) and its progeny, expressly prohibits that a lay

person may represent a corporation in federal court. 2

5. That the P/A’s have timely raised before the

forum below and this one, the existence of precedent

where a “final” decision nine (9) years old was

vacated as void for the president of a corporation

having been allowed to appear at a certain stage of

the process for the corporation without being a

lawyer. See Grace v. Leumi Trust Co. of New York,

No. 04-5824-cv (2d Cir. 04/04/2006).

6. That after the administrative proceedings

before the USDE were over, this CP/CA was allowed

during many years to continue to appear for IEU

the corporation, before the District Court below and

this own HUSCAI1C, without the opposition nor

objection by the U.S. Attorney's Office (USAO)

intervening Attorneys.

7. That this HUSCAIC has judicial knowledge of

the fait accompli that this CP/CA appeared before its

panel in the oral argument of 99-1398 [the appeal of

96-1893(JAF), the Constitutional, Civil Rights and

z

Although there were certain few exceptions to the rule that a

corporation may appear in federal court only through legal

counsel found in: United States v. Reeves, 431 F. 2d 1187 (CA9

1970) (per curiam) (partner can appear on behalf of a

partnership), and In re Holliday's Tax Services, Inc., 417 F.

Supp. 182 (EDNY 1976) (sole shareholder can appear for a

closely held corporation), affirmance order swb nom. Holliday's

Tax Services, Inc. v. Hauptman, 614 F. 2d 1287 (CA2 1979).

Rowland v. California Men’s Colony, supra. See also O'Reilly v.

New York Times Co., 692 F.2d 863 (2nd Cir. 11/02/1982), where

a priest was allowed to represent a non-profit corporation, where

there are no stockholders nor owners, a scenario similar to that

of LEU.

Bivens action] which was consolidated by you sua

sponte with 99-1628 [the appeal of 98-2225(RLA), the

petition for judicial review of the final agency decision

authorized by the Administrative Procedures Act

(APA), 5 U.S.C. 1 et seq.].

8. That this HUSCAIC has judicial knowledge of

the fait accompli that this CA/CP was assessed Trust

Fund Liabilities (TFL’s) by the-Internal Revenue

Service (IRS) of the U.S. Department of the Treasury

(USDT) for the taxes allegedly owed by IEU after

having determined that J was the person responsible

for same taxes.

9. That same assessment was followed by liens,

levies and collection efforts that constitute the

quintessential injury in fact that a citizen can suffer

from the government and that same TFLs for

$336,000 plus interests are not dischargeable even

through bankruptcy.

10. That this HUSCAIC has judicial knowledge of

the fait accompli that this CP/CA was not only

allowed to appear for IEU before the District Court,

after its remand of 99-1628, but ordered by its court’s

clerk to file a new complaint in order for the remand

to effectuate or materialize and that same court acted

upon that appearance. That it was not until the

eleventh hour that for the first time in 2001 after

over five (5) years having appeared Pro Se for [EU

besides myself in federal court, that the USAO

intervening Attorneys belatedly opposed or objected

to same representation.

11. That this HUSCAIC has judicial knowledge of

the fact that I filed the Notice of Appeal in 05-1775

both for myself and [EU after the remand over which

the District Court sat for almost five (5) vears only to

railroad our just and timely petition for judicial

review of the final USDE action for a second time,

again without having allowed for a modicum of

discovery de minimis, a single hearing and much less

a full blown trial on its merits.

12. That same filing of the Notice of Appeal for

myself and [EU the corporation was more than

legally justified based on the law of the case that this

own HUSCAIC established in 99-1628, where you

ruled consistent with this and others circuits

precedent. 3

13. That this HUSCAIC has judicial knowledge of

the fact that it was the District Court’s evident errors

in its rulings what provoked the supposed late filing

of the Notice of Appeal in 05-1775. Same was

provoked by its denial of the P/A’s legal counsel

resignation due to unpaid past due honoraria. As its

concomitant this CP/CA was inhibited from filing the

Notice of Appeal since the P/A’s” remained

theoretically represented by counsel de jure although

certainly not de facto.4 This error by the District

3

Thus, we hold that a corporate officer may sign and file a notice

of appeal on behalf of the corporation, as long as the corporation

then promptly retains counsel to take up the cudgels and

prosecute the appeal. Accord Bigelow v. Brady, 179 F.3d 1164,

1165-66 (9th Cir. 1999) ("We fail to see any compelling reason to

refuse to recognize a corporation's notice of appeal, signed and

filed by a corporate officer, so long as a lawyer promptly

thereafter enters a formal appearance on behalf of the

corporation and undertakes the representation."); K.M.A., Inc. v.

GMAC, 652 F.2d 398, 399 (5th Cir. 1981) (similar). That

condition is satisfied here. Instituto De Educacion Universal

Corp. v. United States Department of Education, 209 F.3d 18

(Ist Cir. 04/12/2000).

4

Court left this CP/CA in a hybrid representation,

ergo, a Catch 22 predicament.

14. This HUSCAIC also has judicial knowledge of

the fait accompli that every time the courts ordered

me to retain counsel for [EU, 1 was somehow able to

comply with same orders, sooner or later. °

15. With regards to this strictly legal issue, this

HUSCAIC ended ruling here contrary to what it

decided in the analogous and contemporaneous

A second qualification recognized in our cases is that the rights

of self-representation and representation by counsel "cannot be

both exercised at the same time." United States v. Mitchell, 137

F.2d 1006, 1010 (2 Cir. 1943), cert. denied, 321 U.S. 794,(1944).

Although a trial judge may in his discretion permit a party to

enjoy both halves of the statutory right, see United States v.

Swinton, 400 F. Supp. 805, 806 (S.D.N.Y. 1975) and cases cited

therein, Section 1654 does not itself confer any right to "hybrid

representation". United States v. Wolfish, 525 F.2d 457, 462-63

(2 Cir. 1975), cert. denied, 423 U.S. 1059, 46 L. Ed. 2d 649, 96 S.

Ct. 794 (1976). Accord, United States v. Hill, 526 F.2d 1019 (10

Cir. 1975), cert. denied, 425 U.S. 940, 48 L. Ed. 2d 182, 96S. Ct.

1676 (1976); United States v. Daniels, 572 F.2d 535 (5 Cir.

1978). Thus, a party seeking to asseri his statutory right of self-

representation must clearly and unequivocally discharge any

lawyer previously retained. O'Reilly v. New_York Times Co., 692

F.2d 863 (2nd Cir. 11/02/1982). In the instant case the District

Court simply did not allow the discharge.

a2

The following is a lst of some of the Iega) counsels that

appeared for the P-As since the outset of the controversy and

that charged over $500,000.00 in honoraria, most of which was

paid. Dow Lohnes and Albertson, of Washington, D.C., Andrew

Usera of Virginia, Waleska Marrero Melecio and Charles

Candelaria Farulla, of San Juan, P.R., Benny Frankie Cerezo, of

San Juan, P.R.. Balber Pickard Battistoni Maldonado and Van

Der Tuin, of N.Y., N.Y., Frank Inserni. of San Juan, P.R.,

Schuster Usera and Aguilo, of San Juan, P.R. and Julio Morillo

Limardo of Bayamon, P.R..

controversy, Taffanelli-Figueroa v. Fajardo-Vélez, 483

F.3d 24 (1st Cir. 04/06/2007), where thou ruled that

the dismissal with prejudice for failure to comply

with court’s orders in situations where the party's

lawyer had resigned was too harsh a measure to

deserve approval. Our case was stronger in this vein,

since not only did we move in time, but the district

court had granted the extension to retain counsel

only to void it later nunc pro tunc. Just as in

Taffanelli, or perhaps even more, our FRCP 60 (b)

motion should had heen given at least a chance in

view of this.

16. That in the controversy below, a FRCP Rule 59

Motion was timely filed regardless of how it was

styled and the Court has admonished that in this

scenario; “The running of time for filing a notice

of appeal may be tolled, according to the terms

of Rule 4 (a), by a timely motion filed in the

district court pursuant to Rule 52 (b) or Rule 59.”

BROWDER v. DIRECTOR, 434 U.S. 257 (U5S.

01/10/1978).

17. That this HUSCAIC has judicial knowledge of

the fait accomph that I timely filed the Notice of

Appeal for the instant appeal for [EU and myself.

This HUSCAIC then ordered attorney Morillo

Limardo to cosign it for IEU, which he promptly did.

18. That the instant appeal is supposed to be a

reevaluation of the Motion for New Trial timely filed

under the Federal Rule of Civil Procedure (FRCP) 60,

that was also never considered on its merits or at all

since the District Court balked at it deciding that;

“This case is under appeal”, referring to the fact that

05-1775 was sub judice before you.

19. Although there is extensive jurisprudence on

the topic that while a controversy is under appeal the

lower court must defer to the appellate forum, it is

not less true that the Court has recognized that no

one remains in a better position to provide for Justice

than the court of first instance, especially in FRCP

Rule 60 (b) motions. © Contrary to what happened

here, if the lower court would had acted accord the

overwhelming evidence before it, and amended its

own errors, that appeal would had become moot. ’

6

Rule 60(b) allows a party to seek relief from a final judgment,

and request reopening of his case, under a limited set of

circumstances including fraud, mistake, and newly discovered

evidence.*fn2 Rule 60(b)(6), the particular provision under

which petitioner brought his motion, permits reopening when

the movant shows “any ... reason justifying relief from the

operation of the judgment" other than the more specific

circumstances set out in Rules 60(b)(1)-(5). See Liljeberg v.

Health Services Acquisition Corp., 486 U. S. 847, 863, n. 11

(1988); Klapprott v. United States, 335 U. S. 601, 613 (1949)

(opinion of Black, J.). The mere recitation of these

provisions shows why we. give little weight to

respondent's appeal to the virtues of finality. Gonzalez v.

Crosby, 545 U.S. 524 (U.S. 06/23/2005). (Emphasis ours).

be

‘

And last but not least, the pendency of an appeal does

not affect the district court's power to grant Rule 60

relief. (Emphasis ours). See Standard Oil Co. of Cal. v. United

States, 429 U.S. 17, 18-19 (1976) (per curiam); Wright & Miller,

Section(s) 2873 (1994 Supp.). A litigant faced with an

unfavorable district court judgment must appeal that judgment

within the time allotted by Fed. Rule App. Proc. 4, whether or

not the litigant first files a Rule 60(b) motion (where the Rule 60

motion is filed more than 10 days following judgment). Either

before or after filing his appeal, the litigant may also file a Rule

60(b) motion for relhef with the district court. The demial of the

motion is appealable as a separate final order, and if the original

appeal is still pending it would seem that the court of appeals

can consolidate the proceedings. Stone _v. Immigration and

Naturalization Service, No. 93-1199 (U.S. 04/19/1995).

8

a

20. Absent the will nor the way by the District

Court to alter its evidently obvious erroneous ruling

with regards to the timely filed FRCP Rule 60 (b)

motion, this HUSCAIC also erred by not considering

its merits, nor it at all.

21. That this HUSCAIC has judicial knowledge of

the fait accompli that this CP/CA timely filed for a

Petition For Rehearing Kin Banc and same has not

been decided nor ruled upon.

22. That this HUSCAIC has judicial knowledge of

the fact that the P-As timely produced overwhelming

evidence of smoking gun and beyond doubt quality

that prove without a doubt that the USDE legal

counsels acted ultra vires,” committed ' and

suborned perjury,'! obstructed justice,'* intimidated

8 On the other hand, it is clear that if the motion was a

valid Rule 60(b) filing, the Court of Appeals had

jurisdiction to review the District Court's denial of relief

— either because the denial was a final order from which

petitioner filed a timely appeal, or because the District

Court had transferred the matter to the Court of Appeals

pursuant to §1631.*{nl}. Abdur'Rahman v. Bell, 594, 537 U.S.

88 (U.S. 12/10/2002). (Emphasis ours).

* They applied the July 24, 1993 regulations retroactively to

July 1 of the 1993-94 award year against the express

proscription in the Higher Education Act (HEA).

10

They fraudulently represented to the courts that the decision in

In The Matter of MBTI did not consider the July 1993

regulations when in fact it did expressly.

11

They occluded from all the courts the fact that Office of the

Inspector General (O[G) Auditor In Charge (AIC) Nater had

been expelled and instead sat Porfirio Rios to testify for Nater.

witnesses,!3 occluded and/or suppressed exonerating

evidence ' and committed fraud upon all the

intervening courts, '

23. That this HUSCAIC has judicial knowledge of

the fact that the overwhelming exonerating evidence

timely produced of smoking gun and beyond doubt

quality proves the following:

a. That the application by the USDE legal

counsels of the July 23, 1993 regulation to support

the clock hour “finding” in the OIG pseudo-audit for

the award year that started in July 1, 1993 was

against the law. This in addition to the fact that it

They also coached AIC Lugo to falsely testify on the month the

refunds were allegedly paid and so inofficiously that the dates in

all the cases testified about did not match the month where he

was tuld to testify that they were supposedly paid.

12

They denied the existence of the Nater v. USDE controversy

before the U.S. Merit Protection Board, after he had been

expelled as a result of his flaws in [EUs audit.

13

They admittedly ex-parte called the two independent Certified

Public Accountants (C.P.A.’s) that I had announced as witnesses

to the Alw intimidating one of them.

14

They suppressec’ from all the courts the exonerating evidence

contained in the OIG'’s own Quality Assurance Review Team

Report and the Pell Grant program official documents that

proved that the refunds were paid, when, and for how much

15

They fraudulently represented to the courts that the evidence

in the USDE official documents proving that the refunds had

been paid by way of direct debit to [EU's account 1n total control

of and by the USDE Finance Division, was allegedly not proof of

payment when they knew this was, is and shall remain false

10

was against three decisions of their own ALJ’s. See

HEA and In the Matter of Denver Paralegal

Institute, MBTI and _ Instituto de Educacion

Universal (Exhibit 1).

b. That the excess cash “finding” that resulted

from the OIG pseudo-audit was so crassly, grossly

and wantonly inflated that it was, is and shall remain

a mathematical impossibility. Equally or more

important, it was rejected by the own OIG’s Quality

Assurance Review Team Report (QARTR) on the

expelled AIC Nater’s work. The USDE legal counsels

suppressed this exonerating evidence from the courts,

neglected to produce it through the Freedom of

Information Act (FOIA) avenues, occluded the fact

that Nater had been expelled from the OIG for his

flaws in IEU’s audit and denied me the existence of

the Nater v. USDE record at the U.S. Merit System

Protection Board where | was able to learn from the

pertinent and relevant QARTR = despite their

obstruction of justice. See Exhibit 2.

c. The USDE legal counsels knew that we had

paid the fraudulently imputed “unpaid” refunds,

since we had resubmitted their payment vouchers so

that the refunds were made by way of a direct debit

to our funds authorization first and our funds per se

second. Since they fraudulently represented to the

courts that allegedly the above evidence emerging

from official USDE documents was not enough to

prove the payment of the 512 refunds imputed as

unpaid, we then timely produced the smoking gun

evidence made reference to respect to each one of

them, showing the specific social security numbers of

each one, the amount of the refunds, the date and the

1]

batch number in which each one was processed, ergo

paid. See Rx'nioit B.

More than for anything else, it is because of

the quality of this exonerating evidence that I will not

get tired of making absolutely certain that I take you

out of your myriads of terrible errors related to this

controversy and that you make sure that the lawyers

responsible for this grave Injustice plus your waste of

time and effort end paying for their malice, perfidy

and opprobrium disguised as overzealousness.

24. That this HUSCAIC has judicial knowledge of

the fact that the USAO intervening Attorneys were

derelict in their ministerial duties as mandated by

the U.S. Attorney's Manual and their ethical duties

as mandated by their corresponding Lawyer's Bar

Rules of Ethics, by instead of duly investigating the

facts and sifting the exonerating evidence when

acting as their client-agency (the USDE) legal

representatives, they egregiously and wantonly

elected to cover up all the evidently obvious violations

committed by their client agency legal counsels, ergo,

converted their abuse of the legal process into a

malicious prosecution of their own. See Angel Ruiz

Rivera v. Alberto R. Gonzales, Et Al., Et Al., 08-1560

at the U.S. Distmet Court for the District of

Columbia.

25. That this HUSCAIC has judicial knowledge

of the fait accompli that this CP/CA has timely filed

various motions to publicly denounce that heretofore

all the intervening courts have not only decided

contrary to the overwhelming evidence mentioned

16 If someone in this HUSCAIC happens to be really interested

in revisiting this controversy, see Motion To Facilitate A Ruling,

to save time and effort since there the hard exonerating

evidence is fully digested.

12

above, but worse, covered up all of the above and

elsewhere denounced fraud and misconduct. !7

26. In my timely filed motion in the instant appeal

where I challenged the Honorable Judge Selya’s

improvident decision to forfeit my appeal rights by

simplistically deciding that I supposedly do not have

standing to defend myself of this evidently obvious

Injustice, for allegedly having ceased to be a party to

the proceeding below, I timely produced precedents

from the Court itself, plus eight (8) circuits including

thyself, that have decided that a person or entity that

has not been a party to a case or controversy has the

right to appear on its appeal if negatively affected by

same decision and/or order, especially in the case of a

named party like myself here. '8

17 This in addition to having judicial knowledge of the fait

accompli that desperate for his quest for Justice this CP/CA filed

a Complaint against nine (9) of the Honorable Federal Judges of

this HUSCAIC Judicial Council for having covered up the

evidently obvious judicial misconduct of the Honorable District

Court Judge Fuste in 96-1893, [00-1609 (DRD) Appeal 1-1611],

reason why this HUSCATIC should had recused itself from any

dealings with this litigant at least for the appearance of Justice

if not for Justice.

18

See Hispanic Society of New York City Police v. New York City

Police 806 F.2d 1147, (2°94, 1986); In re Piper Funds,

Institutional Government Income Portfolio Litigation, 71 F.3d

298, 301 (8th Cir. 1995); In re Estate of Marcos Human Rights

Litigation, 94 F.3d 539 (9th Cir. 1996); United States v.

Kirschenbaum, 156 F.3d 784 (7th Cir. 1998): Kaplan v. Rand.

192 F.3d 60 (2d Cir. 1999): Microsystems Software, Inc. v.

Scandinavia Online AB, 226 F.3d 35 (Ist Cir. 2000); Castillo v.

Cameron County, 238 F. 3d 325 (5th Cir. 2001): Securities and

Exchange Commission v. Forex Asset Management, 242 F.3d

325 (5th Cir. 2001); Karaha_Bodas Co. v. Perusahaan

Pertambangan, 313 F.3d 70 (2d Cir. 2002); Devlin v.

13

We have never, however, restricted the

right to appeal to named parties to the

litigation. In Blossom v. Milwaukee &

Chicago R. Co., 1 Wall. 655 (1864), for

instance, we allowed a bidder for property

at a foreclosure sale, who was not a named

party in the foreclosure action, to appeal

the refusal of a request he made during that

action to compel the sale. In Hinckley v.

Gilman, C., & S. R. Co., 94 U.S. 467 (1877),

we allowed a receiver, who was an Officer of

the court rather than a named party to the

case, to appeal from an order "relat{ing] to

the settlement of his accounts," reasoning

that "[flor this purpose he occupies the

position of a party to the suit." Jd., at 469.

More recently, we have affirmed that "[t]he

right of a nonparty to appea. an

adjudication of contempt cannot _ be

questioned," United States Catholic

Conference v. Abortion Rights Mobilization,

Scardelletti, No. 01-417, June 10, 2002; Goya Foods, Inc. v.

Wallack Management Co., 290 F.3d 63 (1st.Cir.5/17/2002): Plain

v. Murphy Family Farms, 296 F.3d 975 (10th Cir. 07/16/2002):

Cardoza v. Pacific States Steel Corporation, 320 F.3d 989 (9th

Cir. 2003); AAL High Yield Bond Fund v. Banc of America

Securities, 361 F.3d 1305 (11th Cir. 2004), Churchill Village v.

General Electric, 361 F.3d 566 (9th Cir. 2004): Pediatric

Specialty Care v. Arkansas Department of Human Services, 364

F.3d 925, (8-C'r, 2004); In re Sealed Cases, 363 U.S. App. D.C.

214, 381 F.3d 1205 (D.C. Cir. 2004); United States v. Alisal

Water Corp., No. 02-15907 (9th Cir. 2005): Velez-Diaz v. Vega

Irizarry, 421 F.3d 71 (1st©', 9/2/2005); Official Committee of

{'nsecured Creditors of WorldCom, Inc. v. Securities and

Exchange Commission, 467 F.3d 73 (2d Cir. 2006).

14

Inc., 487 U.S. 72, 76 (1988), given the

binding nature of that adjudication upon

the interested nonparty. Devlin _ v.

Scardelletti, No. 01-417, June 10, 2002.

In view of all of the above, this HUSCAIC has

the legal, ethical and moral duty to rule upon our

timely filed Petition for Rehearing En Banc, and

more importantly explain why you have departed

from all these circuits’ precedents including yours

and the own Court’s admonishment in this vein, and

have chosen instead to work a manifest injustice,

something which is outrageous enough. Nevertheless,

you should also explain why you have covered up and

shielded the government barristers evidently obvious

fraud upon all the courts, overt violation of the

candor and decorum owed to the dignity of them all

courts including yours, and allow them to get away

with this conduct unbecoming of a U.S. lawyer, with

absolute impunity.

That for all the aforementioned reasons, this

HUSCAIC should rule or decide upon the timely filed

petition for rehearing en banc, as a matter of

principle and decency to say the least, or in the

alternative, recuse itself from the instant appeal and

transfer it to the Circuit Court of Appeals for the D.C.

Circuit, as prayed before with more than enough

justifications in all my previous motions, all of them

unopposed. So we state, allege and pray. Respectfully

submitted, today September 29, 2008.

Angel Ruiz Rivera

P.O. Box 191209

San Juan, P.R.,00919-1209.

787-435-3512

15

CERTIFICATE OF COMPLIANCE

I, Angel Ruiz Rivera, appearing here Pre Se,

hereby certify that this Motion complies with the

Rules of this HUSCAIC.

CERTIFICATE OF SERVICE

I, Angel Ruiz Rivera, appearing here Pro Se,

hereby certify that I have served a copy of this Motion

through Express Mail of the U.S. Postal Service to

the appearing counsel for the Defendants/Appellees,

Ms. Barbara Biddle, Esq., AUSA, to her address of

record; U.S. Department of Justice, 950 Pennsylvania

Ave. NW, Room 9124, Washington, D.C. 20530 and to

IEU’s appearing counsel Julio Morillo Limardo, Esq.,

personally.

EXHIBITS

1. Applicable HEA section, and in the

Matter of Denver Paralegal Institute,

MBTI and Instituto de Educacion

Universal (IEV).

2. Specific Observations section of the

QARTR and other excerpts proving

the flaws in the excess cash “finding”.

3. Unpaid” refunds’ smoking gun

exonerating evidence.

16

EXHIBIT 1

That the application by the USDE legal

counsels of the July 23, 1993 regulation to support

the clock hour “finding” in the OIG pseudo-audit for

the award year that started in July 1, 1993 was

against the law. This in addition to the fact that it

was against three decisions of their own ALJ’s. See

HEA and In the Matter of Denver Paralegal

Institute, MBTI and _ iMInstituto de Educacion

Universal.

Higher Education Act of 1965 as amended, Sec. 482.

(c) Delay of Effective Date of Late Regulations — Any

regulatory changes initiated by the Secretary

affecting the programs pursuant to this title that

have not been published in final form by December 1

prior to the start of the award year shall not

become effective until the beginning of the second

award year after such December 1 date.

17

EXHIBIT 2

That the excess cash “finding” that resulted from the

OIG pseudo-audit was so crassly, grossly and

wantonly inflated that it was, is and shall remain a

mathematical impossibility. Equally or more

important, it was rejected by the own OIG’s Quality

Assurance Keview Team Report (QARTR) on the

expelled AIC Nater’s work. The USDE legal counsels

suppressed this exonerating evidence from the courts,

neglected to produce it through the Freedom of

Information Act (FOIA) avenues, occluded the fact

that Nater had been expelled from the OIG for his

flaws in IEU’s audit and aenied me the existence of

the Nater v. USDE record at the U.S. Merit System

Protection Board where I was able to learn from the

pertinent and relevant QARTR despite their

obstruction of justice.

Pertinent and Relevant Excerpt from the occluded

QARTR

“Specific Observations

2. The audit work papers contain two different

methods for calculating imputed interest. D-1

calculates interest on a daily basis, but the logic is

faulty. D-1-1 calculates interest on a six-month basis

which cannot be justified. The report says we

calculated interest on a monthly basis. This

statement obviously is not supported by the

work papers. “

18

KXHIBIT 3.

The USDE legal counsels knew that we had

paid the fraudulently imputed “unpaid”

refunds, since we had _ resubmitted their

payment vouchers so that the refunds were

made by way of a direct debit to our funds

authorization first and our funds per se second.

Since they fraudulently represented to the

courts that allegedly the above evidence

emerging from official USDE documents was

not enough to prove the payment of the 512

refunds imputed as unpaid, we then timely

produced the smoking gun evidence made

reference to respect to each one of them,

showing the specific social security numbers of

each one, the amount of the refunds, the date

and the batch number in which each one was

processed, ergo paid.

19