H N
3n the 'uprerne Court of the aniteb--state!
REV. JOSPEHENIE ROBERTSON, M.T.T., individually, as the Representative, Officer, and Matriarch of the Traditional Authority, and the Miskitu Government-in-Exile - PETITIONER.
VS.
THE REPUBLIC OF NICARAGUA, JOSÉ DANIEL ORTEGA SAAVEIThA, RCSARIO MURILLO, SANDINISTA PARTY and INFINITY ENERGY
RESOURCES, INC., - RESPONDENTS.
ON PETITION FOR A WRIT OF CERTIORARI TO
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ENBANC
------I
PETITION FOR WRIT OF CERTIORARI
Rev. Josephenie E. Robertson, M.T. 1557 Jackson St. #301
Oakland, CA 94612 - U.S.A. Telephone:510.410.1144 Email: [email protected]
Petitioner
- - RECEIVED JAN 2 ' 2019- RECEIVED OFF E DEC 27 2018 -- M F
- - S L
QUESTION(S) PRESENTED
Whether the Petitioner was deprived of an independent, neutral, and impartial tribunal in violation of the First and Sixth Amendments under the
Equal Protection and Due Process clauses of the Fifth and Fourteenth
Amendment of the United States Constitution?
Whether the Petitioner's right to self-representation and the assistance of counsel were denied under the capacities of individual and class action, in violation of the Sixth Amendment under the Equal Protection and Due
Process clauses of the Fifth and Fourteenth Amendment of the United States
Constitution?
Whether there are deprivations of the Equal Protection and Due Process clauses under the Fifth and Fourteenth Amendments of the Constitution by the lower courts applying the Political Question Doctrine to dismiss the
Petitioner's complaint?
Whether there are deprivations of the Equal Protection and Due Process clauses of the Fifth and Fourteenth Amendment of the Constitution by the lower courts failing to cite reasons on appeal to seek relief and remedy? S LIST OF PARTIES . I] All parties appear in the caption of the case on the cover page.
• [x I All parties do not appear in the caption of the case on the cover page. A list of all parties to the proceeding in the court whose judgment is the subject of this petition is as follows:
Office of the Clerk U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, California 94119-3939
Office of the Clerk United States District Court Philip Burton Federal Building 450 Golden Gate Ave San Francisco, CA 94102
Andrew Z. Schwartz, Esq. Foley Hoag LLP 155 Seaport Boulevard Boston, Massachusetts 02210 Email: [email protected]
Philip C. Swain, Esq. Foley Hoag LLP 155 Seaport Boulevard Boston, Massachusetts 02210-2600 Tele: 617-832-1000 Email: [email protected]
Christopher A. Nedeau, Esq. 154 Baker Street San Francisco, California 94117 Tele: 415.516.4019 Email: [email protected]
Mr. Stanton E. Ross, President & CEO Infinity Energy Resources, Inc. 11900 College Boulevard Overland Park Kansas 66210 USA Phone: 913-948-9512 Email: [email protected] .TABLE OF CONTENTS . OPINIONSBELOW...... 1
JURISDICTION ...... CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...... 3
STATEMENTOF THE CASE...... 4
REASONS FOR GRANTING WRIT 16 CONCLUSION...... 34
INDEX TO APPENDICES
APPENDIXA U.S. Court of Appeals for the Ninth CircuitEn Banc ...... 1A APPENDIX B United States Court of Appeals for the Ninth Circuit ...... lB
APPENDIX C United States District Court ...... 1C S . TABLES OF AUTHORITIES CITED
CASES PAGE
3 Wayne R. LaFave et al., The Constitutional Rights to Retained and Appointed Counsel, Crim. Proc. § ii.i(b), at 1 (3d. ed. 2013) ...... 29
Argersinger v. Hamlin, 407 U.S. 25 (1972) ...... 26
Armstrong v. Manzo, 380 U.S. 545, 552 (1965); 287 U.S. 45 (1932) ...... 28
Baker v. Carr, 369 U.S. 186 (1962) Decided March 26, 1962 ...... 31
Bolling v. Sharpe, 347 U.S. 497 (1954) - Due Process Clause ...... 3
CBS Corp. v. Fed. Commun. Comm'n, 535 F.3d 167 (3d Cir. 2008) ...... 17
Ex Parte Hennen, 13 Pet. 225 (1839)...... 18
Faretta v. California, 422 U.S. 8o6, 812-13, 821-832, 843-845, 850 note 2 supra (1975)...... 26
Gideon v. Wainright, 372 U.S. 335 (1963)...... 26
Halbert v. Michigan, 545 U.S. 600, 610 (2005) (quoting M.L.B. v. S.L. J., 519 U.S. 102,120 (1996)). Id. at 6i0-11 ...... 29
In Re Estate of Marcos Human Rights Litigation, 910 F. Supp. 1460 (D. Haw. 1995); US District Court for the District
of Hawaii - 910 F. Supp. 1460 (D. Haw. 1995) November 30, 1995 ...... 11
In re Murchison, 349 U.S. 133 (1955)...... 15
Johnson v. Zerbst, 304 U.S. 458 (1937)...... 26
Kenna v. U.S. Dist. Ct. for the C.D. Cal., 435 F.3d iou, i016 (9th Cir. 2006)...... 28
Marbury v. Madison, 5 U.S. (i Cranch) 137 (1803)...... 32
Mathews v. Eldridge, 424 U.S. 319, 334 (1976) ...... 29
Nixon v. United States, 506 U.S. 224 (1993). Decided January 13, 1993 ...... 32
Powell v. Alabama, 287 U.S. 45 (1932)...... 26 iv S
TABLES OF AUTHORITIES CITED. CASES PAGE
Powell v. McCormack, 395 U.S. 486 (1969). Decided June 16, 1969...... 32
.1 United States v. Plattner, 330 F.2d 271, 274 (2d Cir. 1964)...... 27
Vekuii Rukoro v. Federal Republic of Germany Case No. 1:17-cv-00062 filed on 01.05.17 in the U.S.D.C. Southern District of New York...... 12
Vieth v. Jubelirer, 541 U.S. 267(2004)...... 32
STATUTES AND RULES
I Stat. 73, 92, Amended (1789 First Congress)...... 26
The Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771 ...... 28
28 U.S.C. H 332(d)(1), 351-364 (Judicial Councils Reform and Judicial Conduct and Disability Act of 19 80) ...... 17
28 U.S.C. § 1654 (1970) note 20 ...... 26
JCUS-APR 73, pp. 9-11...... 17
Magnitsky Act, formally known as the Russia and Moldova Jackson—Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012
(Public law Pub.L. 112-208 - Statutes at Large 126 Stat. 1496) ...... 9
Export Administration Act of 1979 (50 U.S.C. App. 24050)), Section 62oA(a) of the Foreign Assistance Act of 1961, Public Law 87-195, as amended (22 U.S.C. 2371(c)), and Section 40(f) of the Arms Export Control Act, Public Law 90-629, as amended (22 U.S.C. 2780(f)), on or about November 17, 2017. 82 Fed. Reg. 56100 (Nov. 27, 2017)...... 7
Section 8o66 of the Department of Defense Appropriations Act (Title VIII of the Continuing Appropriations, 1985) ...... 10
28 U.S.C. § 16o5A(a)(2)(A)(i)(I)...... 2
28 U.S.C. § 1603...... 8
V MISCELLANEOUS . Congressional Record of September iSt, 1789 Pages 8 0-100 ...... 25
Kish Formula - Leslie Kish, Survey Sampling 53 (New York, John Wiley andSons 1962) ...... 11
Martin Davies, Time to Change the Federal Forum Non Conveniens Analysis, 77 TuL. L. REv. 309, 352-53 (2002) ...... 19
M. Ryan Casey & Barrett Ristroph, Boomerang Litigation: How Convenient Is Forum Non Conveniens in Transnational Litigation? 4 B.Y.U.INT'L L. & MGMT. REV. 21, 51 (2007) ...... 19
Vi 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:
OPINIONS BELOW
[x] For cases from federal Courts:
The opinion of the United States Court of Appeals En Banc appears at Appendix A to the petition and is
[x] reported at Case No. 1717156; or, [ ] has been designated for publication but is not yet reported; or, [x] is unpublished.
The opinion of the United States Court of Appeals appears at
Appendix B to the petition and is
[x] reported at Case No. 1717156; or, [] has been designated for publication but is not yet reported; or, [x] is unpublished.
The opinion of the United States District Court appears at
Appendix C to the petition and is
[x] reported at Case No. U.S.D.C. No. 3:17-cv-00852-JST; or, [1 has been designated for publication but is not yet reported; or, [x] is unpublished.
1 JURISDICTION . [x] For cases from federal courts:
The date on which the United States Court of Appeals decided my case
was April 11, 2018.
[] No petition for rehearing was timely filed in my case.
[x] A timely petition for rehearing was denied by the United States Court
of Appeals on the following date: September 10, 2018, and a copy of the
order denying rehearing appears at Appendix A.
[ ] An extension of time to file the petition for a writ of certiorari was
granted to and including (date) on
(date) in Application No. A
The jurisdiction of this Court is invoked under 28 U.S.C. §1253 and 28
U.S.C. § 1254(l); Article III, Section 2 U.S. Constitution.
This Court and lower courts has subject matter jurisdiction over this
matter pursuant to 28 U.S.C. §§ 1330(a), 1367, and 1605A because the
Republic of Nicaragua and other defendants committed acts including but
- not limited to, of torture, hostage taking, and extrajudicial killing.
This Court and the lower courts has personal jurisdiction pursuant to
28 U.S.C. § 1330(b) because it has subject matter jurisdiction pursuant to
28 U.S.C. § 1330(a) and because service of this Complaint was being made
pursuant to 28 U.S.C. § 1608.
2 S CONSTITUTIONAL AND STATUTORY PROVISIONS. INVOLVED First Amendment. Religion and Expression. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. It was part of the Bill of Rights that was added to the Constitution on December 15, 1791.
Fifth Amendment. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in actual service in
time of War or public danger; nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life, liberty, or property, without
due process of law;' nor shall private property be taken for public use, without just
compensation.
Sixth Amendment. In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and district wherein
the crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accusation; to
be confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance of Counsel for his
defence.
1 Boiling v. Sharpe, 347 U.S. 497 (1954) -Due Process Clause.
3 Fourteenth Amendment. Section 1. All persons born. or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Fourteenth Amendment (Amendment XIV) to the United States
Constitution was adopted on July 9, 1868;
U.S. Constitution, Article III, Section 2, In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and
Fact, with such Exceptions, and under such Regulations as the Congress shall make.
STATEMENT OF THE CASE
A. Facts Giving Rise to the Case:
In 1850, John M. Clayton and Sir Henry Lytton Buiwer negotiated an international treaty on behalf of the United States and Great Britain known as the
Clayton-Buiwer Treaty.2 This contentious treaty favored Great Britain's position that the Mosquito (Miskitu) Coast is identified by the parties as a sovereign nation
2 https://www.oas.org/sap/peacefundfbelizeandguatemalaltimelinedocuments/TheClayton -
BulwerTreaty-English.pdf
4 S (Article 1) along with Costa Rica, Nicaragua, and other parts of Central America.
The actual purpose of the treaty was based upon the United States intent to build
an inter-oceanic canal through Nicaragua that subsequently never happened.
From this point in history, Great Britain and Nicaragua signed what is
internationally known and recognized by the United Nations as the Treaty of
Managua on February 11th, 1860. The treaty guaranteed the Mosquito (Miskitu)
peoples the rights of self government, control of their natural resources, flag, as well
as stipulated a demarcation border westward of 84° 30' throughout the whole extent
of the territory hither to, occupied or claimed by the Mosquitoes within the frontier
of the Republic of Nicaragua.
The stipulations, of the Treaty of Managua, gave to Great Britain the right of
practical intervention in the affairs of Nicaragua, if any emergency should render it
necessary, should the Republic of Nicaragua not adhere to the treaty.
On July 2", 1881 the international 1860 Treaty of Managua went before the
Emperor of Austria for interpretation.3 Among the Emperor's rulings was that the
Mosquito people were in control of their natural resources and afforded self-rule.
The United Nations recognizes these international instrumentalities as lawful
treaties. The United States is a member of the United Nations.
The Congress of Nicaragua has persistently claimed that the inhabitants are
ignorant and incapable of self-rule from ancient legal times of the 1800's to the
3 http://Iegal.un.org/riaa/cases/vol—XXVIII/167-184.pdf present day of 2018,. showing both contempt and extreme. bias towards the Miskitu peoples.
In 1956, the Council of Elders gave the royal staff to the Reverend Josephenie E.
Robertson. She was immediately targeted by the Nicaraguan government who
seized her children, tortured her and threatened her with death less she be forced
into exile where she obtained political asylum in the United States. She is a
member of the royal Miskitu family and known to her people as the Matriarch of
the Miskitu nation. She has never abdicated her position. Many other royal family
members have been forced in a similar manner to seek refuge in other nations. She
is a member of the Miskitu government in exile. As a result of her horrific
experiences, the loss of her children's love and companionship, having suffered
severe mental anguish, yet maintained hope for her people.
Before the Court she seeks solatium damages and the right to represent her
people in the negotiations of the Miskitu natural resources that are being sold via
concessions through the Nicaraguan government to international companies
including American companies that are in excess of over $1 billion dollars with no
benefit whatsoever to the Miskitu people except for suffering, forced relocations,
genocide, the rape of young Miskitu girls and women, extrajudicial murders,
deprivations of medical treatment and food as this very case proceeds before the
United States Federal Court system.
The animus bias conduct by the Republic of Nicaragua has been continuous
regardless of subsequent Nicaraguan governments and is presently because of the S direct conduct of the defendants, who are presently .engaging in crimes against humanity, the situation is both unconscionable and intolerable for her and her
people. -
Under the Reagan Administration, the Republic of Nicaragua and other
Defendants were designated as state sponsors of terrorism and the United States
put in place an embarg04 against Nicaragua which was declared by then-U.S.
President Ronald Reagan on May 1, 1985. The embargo prohibited all trade
between the U.S. and Nicaragua. President Bush continued the embarg05 against
Nicaragua for breaching the peace treaty and other agreements. U.S. Treasury
prohibitions are also noted 6 7exp1icit1y citing Republic of Nicaragua.
It is quite evident that even more sanctions are about to be administered by
the United States very shortly, if not already in place, pursuant to the Export
Administration Act of 1979 (50 U.S.C. App. 24050)), Section 620A(a) of the Foreign
Assistance Act of 1961, Public Law 87-195, as amended (22 U.S.C. 2371(c)), and
section 40(f) of the Arms Export Control Act, Public Law 90-629, as amended (22
U.S.C. 2780(f)), on or about November 17, 2017. 82 Fed. Reg. 56100 (Nov. 27, 2017).
The acts of the Defendants constitute deprivations that require a designation
as a result of the acts herein described under 28 U.S.C. § 1605A(a)(2)(A)(i)(I).
4 https:/!en.wikipedia.org/wikilUnited_States_embargo_against_Nicaragua
http://www.envio.org.nilarticulo/2695
6 The International Lawyer Vol. 20, No. 3 (Summer 1986), pp. 1101.1103 (3 pages)
https://www.jstor.org/stable/40705790?read-
now1&googleloggedintrue&seq2#page_scan_tab_contents
7 S Defendant The Republic of Nicaragua is a foreign state within the meaning of
28 U.S.C. § 1603, and includes its officials, employees, agents, and other
instrumentalities.
The Republic of Nicaragua, through its officials, employees, agents, and other
14, instrumentalities, intentionally ordered, directed and caused the torture, hostage
taking of Plaintiff Josepehine Robertson while appropriating the natural resources
and extrajudicial killing of other Miskitu peoples resulting harm to Plaintiffs. The
plaintiff is a residing member of the Royal Miskitu family who has never abdicated
her government position. She presented petitions representing over 80% of the
Miskitu peoples, council of Elders and other government figures representing her
position of authority and right to act on their behalf as she seeks an individual and
class action lawsuit. She was further denied the rights afforded her in the Managua
Treaty of 1860 and other subsequent international treaties to participate in the
negotiations that pertain to the Miskitu people's inherent right to govern and
negotiation on behalf of their own natural resources.
In recent months, the United Nations,8 91nter-American commission on Human
Rights,'(' President Trump" and U.S. National Security Advisor John Bolton12
ri 8 The Washington Times - Tuesday, April 24, 2018 -
https://www.washingtontimes.comlnews/2018/apr!24/un-joiiis-trump-admin-slamming-nicaragua-
leftists!
https:/!news.un.org!en!story!2018/09/1018442 .U.N. Security Council Takes up Nicaragua Crisis
10 https:/!www.mcclatchydc.com/news/politics-government!white-house/article2 11781249.html S
13have publicly condemned the defendants of this instant case before the United
States Supreme Court. The Defendants in this matter can be construed in a "de facto" application subject to the Magnitsky Act,14 which applies globally, and authorizes the U.S. government to sanction human rights offenders, freeze their assets, and ban them from entering the U.S.
In a statement15 on June 1, 2018, Secretary-General Antonio Guterres called on the Nicaraguan Government to "favourably consider" the requests of the Office of the UN High Commissioner for Human Rights (OHCHR) to visit the country.
The Inter-American Commission on Human Rights has recommended an
international investigation of the violence to identify and hold accountable those
responsible. U.S. Adviser John Bolton refers to Nicaragua as part of the "Troika of
Tyranny" and adamantly states: "This Troika of Tyranny, this triangle of terror
stretching from Havana to Caracas to Managua, is the cause of immense human
suffering, the impetus of enormous regional instability, and the genesis of a sordid
11
rights-abuses.suppression
12 https://www.vox.comlworld]20 18/11/1/180523381bolton-cuba.venezuela-nicaragua-Speech-troika-
tyranny
13 https://www.mcc1atchydc.com/news!nationwOr1dJWOr1dJlatifl-america1article220954395.html
14 Magnitsky Act, formally known as the Russia and Moldova Jackson—Vanik Repeal and Sergei
Magnitsky Rule of Law Accountability Act of 2012 (Public law Pub.L. 112-208 - Statutes at Large
126 Stat. 1496)
15 https:Hnews.un.org/en/story/2018/06/1011131
01 cradle of communism in the Western Hemisphere," Bolton said. "Under President
Trump, the United States is taking direct action against all three regimes to defend
the rule of law, liberty, and basic human decency in our region." -
The Republic of Nicaragua has been identified as one of the "State Sponsors of
Acts of International Terrorism" as recent as November 21, 2017.16 The Defendant
Republic of Nicaragua's conduct towards engaging in terrorism is further identified
in pertinent part of Section 8066 of the Department of Defense Appropriations Act
(title VIII of the Continuing Appropriations, 1985.'
16 https://www.everycrsreport.com/reports/R43835.html
17 Section 8066 of the Department of Defense Appropriations Act (title VIII of the Continuing
Appropriations, 1985; P.L. 98-473; 98 Stat. 1837 at 1935), placed restrictions on fiscal year 1985
funds made available to the Central Intelligence Agency, the Department of Defense, or any other
agency or entity of the United States involved in intelligence activities, which would have the effect
of supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any nation,
group, organization, movement, or individual. Subsec. (b) of that section allowed for the lifting of the
prohibition (1) if the President reported on certain criteria; and (2) if a joint resolution approving
assistance for military or paramilitary operations in Nicaragua were to be enacted.
In particular subsec. (c), paras. (1) and (3) through (7), provided the following expedited procedure
process [para. (1) Included here because of repeated references to it throughout paras. (3) through
(7)]:"(c)(1) For the purpose of subsection (b)(2), 'joint resolution' means only a joint resolution
introduced after the date on which the report of the President under subsection (b)(1) is received by
the Congress, the matter after the resolving clause of which is as follows: 'That the Congress
approved the obligation and expenditure of funds available for fiscal year 1985 for supporting,
directly or indirectly, military or paramilitary operations in Nicaragua.'
10 Inclusively, the other. Defendants in this matter, which. represent the Republic of Nicaragua have been identified individually, as a group, and as representatives of
18 o the Republic to be affiliated and involved as participants with terrorism. The Sandinista government led by Daniel Ortega engaged in a civil war against
the Nicaraguan people. In the negotiations to end the civil war, he did not comply
with the treaties affording the Miskitu people their natural and inherent rights and
legitimate government that oversees and protects their natural wellbeing, natural
resources and human rights under international treaties. Instead, the Sandinista
government appointed some of the Miskitu allies who fought with them in the war,
giving them huge sums of monies, while their own people are subject to horrible
sufferings, death, rape, forced relocations or shot dead just because they are Miskitu
peoples.
In other international19 cases that were that were afforded to proceed in the
United States and was tried in the United States such as the Ferdinand E. Marcos20
where the plaintiffs were alleging human rights violations. The Court allowed the
plaintiffs to proceed with their complaint, both individually and as a class action
18 https://en.wikipedia.org/wildfunited_StateS_afld_State-SPOflS0red_terr0r15m
19 https://law.justia.com/cases/federalldiStriCt-COUrtS/FSUPP/910/14GOfl943938t
20 In Re Estate of Marcos Human Rights Litigation, 910 F. Supp. 1460 (D. Raw. 1995); US District
Court for the District of Hawaii - 910 F. Supp. 1460 (D. Haw. 1995) November 30, 1995
11 lawsuit which also. allowed the Kish Formula21 for formulating an award to the plaintiffs. This involved inferential statistics which is a recognized science which
uses mathematical equations to infer the probability of events occurring or not
occurring. One branch of that science is the sampling theory, which deals with the
selection of sample sizes sufficient to produce results that can be applied to a larger
population from which the sample was selected with a specified probability of error.
B. The District Court Proceedings:
The Petitioner filed an individual and Class Action lawsuit in the United States
District Court and requested the assistance of counsel under similar circumstances
and authorities in the case, Vekuii Rukoro v. Federal Republic of Germany Case No.
1:17-cv-00062 filed on 01.05.17 in the U.S.D.C. Southern District of New York to
assure due process considerations for herself and our Miskitu people.
We allege that the defendants are engaging in "crimes against humanity" against
our people the question to harvest our natural resources resulting in severe human
rights violations against my person and our people as well as our right to negotiate
with respect to international companies and financiers who are doing business in
21 The formula used and accepted in that case is a well-known statistical tool that is found in Leslie
Kish, Survey Sampling 53 (New York, John Wiley and Sons 1962) (KISH FORMULA).
12 the autonomous regions. of the Miskitu peoples who are suffering horribly without any benefits from the sales of their natural resources.
During the course of litigation, we noted that the defense lawyers were
contacting the Deputy Clerk of the federal court on a rather inappropriate "legal il basis" without our input or involvement. We noted this was not appropriate contact
to the Deputy Clerk, who bizarrely, in turn advised me not to contact him in a
similar manner. Throughout litigation as it continued, we actively sought to retain
counsel to no avail. As our case continued, one of our royal family members on our
behalf was referred to an agency in Washington D.C. that unknown to us,
employees a Sandinista government official who claimed that only he represents the
Miskitu people and controls the district court as well as what happens in the
District Court. Our royal family member tape recorded the conversation and
provided me a copy along with his personal statement that he was brutally beaten
by Sandinista cohorts and provided photographic evidence that we submitted to the
District Court to find out both, who was responsible in the judicial system with
contacting this representative of the Sandinista Party. The very day before the
District Court made its decision to dismiss our cause, the service of summons and
complaint against Defendant Infinity Energy was filed in the Clerk's office -
remaining absent for months depriving the plaintiffs of our right to seek a default
judgment as well as complying with our case complying with "touches and
concerns" the United States. In response, the District Court judicial officer solely
stated that he had no contact with this Sandinista employee. However, he did not
13 investigate the conduct of his Deputy Clerk, who in turn signs the dismissal order
for the judge.
The instant case also involves itself in the human rights deprivations and
suffering of indigenous people's where we were receiving photographic evidence and
statement of genocide, rape of women and young girls, extrajudicial killings, denial
of food and medical supplies, as well as forced relocations and while American
companies and Defendant Republic of Nicaragua are plundering our natural
resources throughout the process of litigating our complaint without our right to be
directly involved in negotiations.
The Court had ruled that there was a "political question" that is not resolved in
our case. During oral arguments a second plaintiff was afforded the right to self-
representation which was subsequently quashed by the Court's next order. She had
eye witness evidence of humanitarian aid destined to the Miskitu people being
obstructed by the Sandinista government in Nicaragua as well as other testimonial
evidence.
In the Defendant's Appellate brief, they made an admission of ex parte
communication and conspiracy with the District Court judge by stating, the Court
dismissed the plaintiffs complaint because she was "imaginary" when the actual
- facts are this word is not found in the public records. Therefore, the natural
conclusion is that there was prejudicial communication between the defendant's
counsel anid the court that constitutes an animus bias ex parte
communications.
14 It is our natural conclusion that the sole basis of the Deputy Clerk intervening in this case and signing judicial orders was to remove the presiding judicial officer from complicity with the defendant's misconduct or some form of secret hearing22 in
violation of the Due Process Clause of the 14th Amendment.
C. The Appellate Proceedings.
The Ninth Circuit and the 9th Circuit Rehearing En Banc denying without
comment resulting in the affirming the District Court's decision to dismiss the case
that was assigned to a "deputy clerk" where both complaint and summons were
properly timely served - and abruptly disappear from the records for over two
months until the day before the District Court's dismissal is a clear violation of the
plaintiffs equal protection and due process rights, when there is sufficient evidence
for the Defendant Infinity Energy Resources, Inc. to answer or deny calls for an
investigation. Then, for the "clerk" to be afford judicial power grant the dismissal
without commenting on the due process deprivations imposed on the plaintiffs
without the right to have appointed counsel during these proceedings is tantamount
to a conspiracy of silence, notwithstanding the Court affording so much as a
comment regarding judicial and/or clerical misconduct that is a natural conclusion
simply based upon the facts of the matter, where said Defendant Infinity Energy
Resources, Inc would be liable as a creditor to the Miskitu people owing huge
amounts of monies illegally obtained from Miskitu territory without the treaty right
22 In re Murchison, 349 U.S. 133 (1955)
15 S of the Miskitu royal family as the natural government to participate in these kinds of negotiations.
May I enlighten this Honorable Court that the Petitioner is of the royal family of the Miskitu nation, who has never abdicated although she is living in exile. And, under international treaties and laws she has a right to represent herself as well as her people, with all due respect afforded her position.
REASONS FOR GRANTING PETITION
I. Review is warranted because the Petitioner was deprived of an
independent, neutral, and impartial tribunal in violation of the First and
Sixth Amendments under the Equal Protection and Due Process clauses of
the Fifth and Fourteenth Amendment of the United States Constitution.
Duty of Courts: "It may be that it is the obnoxious thing in its mildest and
least repulsive form; but illegitimate and unconstitutional practices get their
first footing in that way, namely, by silent approaches and slight deviations
from legal modes of procedure. This can only be obviated by adhering to the
rule that constitutional provisions for the security of person and property
should be liberally construed. A close and literal construction deprives them
of half their efficacy, and leads to gradual depreciation of the right, as if it
consisted more in sound than in substance, It is the duty of courts to be
watchful of the constitutional rights of the citizen, and against any
stealthy encroachments there on."
16 S Code of Judicial Conduct for United States Judges.23 24 25 26
The First, Fifth, Sixth, and Fourteenth Amendment to the Constitution clearly afford the rights of citizens to petition the government under guarantees of an impartial and neutral judicial officer. The canons of judicial conduct are explicitly definitive to assure that these standards are met to assure public confidence in the integrity and independence of judges.
These judicial officers, including the chief justice of the various judicial courts are responsible for their employee, such as law clerks and clerks of the court under judicial canons, judicial administration27, rules of Administrative Oversight and
Accountability28 as well as the Respondeat Superior Doctrine29.
The Judicial officer's responsibility regarding clerks under the Respondeat
Superior Doctrine is sustained under The Judiciary Act of 1789 that authorized the
Supreme Court and the judge of each district court to appoint a clerk to assist with the administration of federal judicial business in those courts.
23 http://www.uscourts.gov/sites/default/files/1973-04.pdf
24 See: JCUS-APR 73, pp. 9-11.
25 Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (28 U.S.C. §§ 332(d)(1),
351-364).
26 http://www.uscourts.gov/judges.judgeships/code-cofldUct-Uflited-StateS.iUdgeS#g
27 http://www.uscourts.gov/about-federal-courts/iuclicial-administratiofl
28 http://www.uscourts.gov/about.federa1courts/judiciaJ-.admifliStratioflIadmifliStratiVe-OVerSight- and-accountability
29 CBS Corp. v. Fed. Commun. Comm'n, 535 F.3d 167 (3d Cir. 2008)
17 The Judiciary Act30 was silent on the question of the tenure of the federal court clerks, but in 1839 (Ex Parte Hennen , 13 Pet. 225) the Supreme Court rejected a clerk's challenge to his removal from office by a district judge and declared that each clerk served at the pleasure of the judge or judges of the appointing court.
Under these authorities, if there is a question or complaint of inappropriate
conduct, the judicial officer is to request an investigation via email to the director of
the Administrative Office of the U.S. Courts (AO).
This case, now before this Honorable Court brings forth questions of the ethics31
and animus bias that were being applied directly and/or indirectly by either the
judicial officer and/or his Deputy Clerk against the plaintiffs required an 9th investigation that was not provided, and this bias continued into the Circuit
Court and rehearing en banc by what appears to be a conspiracy of silence.
Under the circumstances now before this Court, it is our natural conclusion that
the lower courts failed to adhere to the principle of Audi alteram partem where
their omissions and silence was a premise not to hear the plaintiffs side of the
complaint which unequivocally infringes upon the plaintiffs 14th Amendment due
process rights and defies previous Supreme Court precedents.
The lower courts failed to follow the commands of the Supreme Court and the
dictates of the United States Constitution, and rather followed disingenuous
80 https://www.fjc. gov/history/administratiorulcourt-officers.and-staff.clerks-court
3lhttps://scholarship.richmond.edulcgilviewcontent.cgi?refererhttps://www. google.com.ph/&httpsred
ir=1&articlell7 6&contextlaw-faculty-publications
18 misapplications of law to deprive the plaintiffs right to be heard and the right to an
appeal.32 In effect, defects in the lower courts have undermined and deprived the
plaintiff of both procedural and substantive due process. -
The lower courts must issue principled decisions resting on reasons that in their
generality and their neutrality transcend any immediate result that is involved.
The Court's dismissal of the plaintiffs' case was not a principled decision meeting
the standard of neutrality. The "neutral principle" concept is indeterminate and
oxymoronic, where the court bias in a conspiracy of silence violated neutrality
principles and the right to neutral access to the courts.
In a manner of speaking, the district court appears to be applying a doctrine of
forum non conveniens, towards the plaintiffs in ways that are unpredictable,
chaotic, and markedly different from one court to another.33 34
These omissions and bias have denied the plaintiffs right to a neutral and
detached decision maker as interpreted by the U.S. Supreme Court. This right
resides in the Constitution's Fifth Amendment and Fourteenth Amendment
32https://scholarlycommons.law.case.edu/cgiiviewcontent.cgi?articlelo57&contextfaculty_publicati
ons
33 See, e.g., Martin Davies, Time to Change the Federal Forum Non Conveniens Analysis,
77 TuL. L. REv. 309, 352-53 (2002); see also M. Ryan Casey & Barrett Ristroph, Boomerang
Litigation: How Convenienr Is Forum Non Conveniens in Transnational Litigation?, 4 B.Y.U.
INT'L L. & MGMT. REV. 21, 51 (2007).
https://scholarlycommons.1aw.case.edu/cgviewcontent.cgi?artic1e1O56&contextfacu1ty_publicati
ons
19 guarantees to procedural due process and in the Sixth Amendment's promise of an impartial jury.
Most litigants are well aware there is a culture of judicial impunity and their battered integrity is always questionable. If a judge is biased or prejudiced for or
against a party or attorney, he cannot be fair and impartial in deciding the case. A
party or attorney who believes such bias or prejudice exists must prove it with
admissible evidence, and can't base this on mere suspicion.
Judges in local, state and federal courts across the country routinely hide their
connections to litigants and their lawyers. These links can be social - they may
have been law school classmates or share common friends - political, financial or
ideological. In some instances the two may have mutual investment interests. They
might be in-laws. Occasionally they are literally in bed together. While it's
unavoidable that such relationships will occur, when they do create a perception of
bias, a judge is duty-bound to at the very least disclose that information, and if it is
creates an actual bias, then allow a different judge to take over.
All too often, however, the conflicted jurist says nothing and proceeds to rule in
favor of the connected party, while the loser goes off without realizing an
undisclosed bias doomed their case.
One discouraging factor is the secrecy under which these commissions operate.
Allegations against a judge are commonly kept confidential unless a sanction of
some kind is imposed. New York's CJC, for example, is prevented by law from
disclosing whether anyone has complained about a judge, discussing specific
20 allegations, revealing what evidence might have been presented or what steps, if any, it took to investigative. When conduct boards do act, the sanctions usually amount to an admonishment that may be embarrassing but costs the judge little.
It was quite evident to me before the Courts that the judicial officer was concealing a conspiracy of secrecy and they are caught with their own words.
Our Courts in recent years, have been turning a blind eye35, in contrast to these duties mentioned above, where we have government representatives such as in
Congress engaging in treason against our Constitution and guaranteed rights, who
scandalously select their "victims" for political gain, by publicly parading them and
their horrible situation as a cause to seek exemption of Constitutional rights
against Americans who are classified as undesirables. They abuse their powers to
create by legislating "politically correct" laws in the furtherance of their careers that
the Courts are well aware that on their face of these proposed laws, that they are
extremely unconstitutional, and the government is outright barred from creating
9th such laws that are guaranteed rights reserved for the people under the
Amendment in the first place, not to mention our rights to petition our government,
exercise our rights before a court with the assistance of counsel equally and in a
neutral arena of law. In the instant case, lawyers are encroaching on the citizen's
35 Judges must maintain a high standard of judicial performance with particular emphasis upon
conducting litigation with scrupulous fairness and impartiality. 28 USCA § 2411; Pfizer v. Lord, 456
F.2d 532; cert denied 92 S Ct 2411; US Ct App MN, (1972). And, State Judges, as well as federal,
have the responsibility to respect and protect persons from violations of federal constitutional rights.
Gross v. State of Illinois, 312 F 2d 257; (1963).
21 right to the assistance of counsel that was not originally afforded to attorneys as some kind of exclusive right. It may be politically correct, but it's not
constitutionally correct.
The Bill of Rights guarantees that the government can never deprive people in
the U.S. of certain fundamental rights including the right to petition the
government with equal protection and due process of law, freedom of religion,
association, to marry, have children, work, travel, as inherent rights for everyone,
not just one class of human beings who believe they form some kind of elitist group
of humans beings and afforded more rights than some other American.
Cynical government officials engaging in politically dishonest manipulation of
Constitutional rights to deprive and violate freedoms may very well result in
torture or cruel, inhumane, or degrading treatment or threats of punishment,
In the instant case, the defendants are having thugs attack members of the royal
Miskitu family and the Court does not so much as entertain an interest other than
stating he is the one who's involved in the "out of court" conduct while the
proceedings in court don't reflect these happenings. Summons and complaints that
were properly served disappear for months and that very same defendant doesn't
even attempt to enter a notice of appearance?
Then, there is the Defense Counsel's appellate brief, detailing that the presiding
Judge Tigar stated that the Court dismissed the plaintiffs complaint because she
was "imaginary". There is NO such remark in the Court records.
22 Therefore, it is a natural conclusion that either the court entertained an animus bias against the petitioner or the Defense lawyer was being untruthful to the 9th
Circuit Court of appeals or the two engaged in a bias ex parte communication.
Either way, the proceedings are clearly tainted in a vile secretive methodical scheme to deprive my people and my person to be heard in a Federal Court of the
United States of America.
The facts are this "witness" provided the Petitioner who provided the Court with
actual audio tapes and pictures, which in no way, "imaginary"
Then there are records of summons and complaints withheld from the file for
months, until the very day a court issues a dismissal.
In the bigger picture, what this case is exposing is a cancer of abusive power
spreading through present day America and the wider world. The prospect of
legislating laws that without notice are revoking those protections that goes with
American citizenship or residency.
Now people are being subjected to unspeakable cruelty, where the federal
authorities are ignoring the histrionics under these new laws that are considered
politically correct, but in reality are doing violence against our Constitutional rights
and treason against our Constitution.
And who is really suffering and harmed because of these new laws being created
as if there is some of Constitutional exemption doctrine in place? The People of the
United States of America as well as their Constitutional rights are being harmed.
23 It is quite clear that this case can and does invoke U.S. Code Title 28 Part IV
Chapter 81 - U.S. Code § 1253 - Direct appeals from decisions of three-judge courts
that states in pertinent part: -
Except as otherwise provided by law, any party may appeal to the Supreme
Court from an order granting or denying, after notice and hearing, an
interlocutory or permanent injunction in any civil action, suit or proceeding
required by any Act of Congress to be heard and determined by a district court
of three judges. (June 25, 1948, ch. 646, 62 Stat. 928.)
II.
Review is warranted because Petitioner's right to self-representation and
the assistance of counsel were denied under the capacities of individual
and class action, in violation of the Sixth Amendment under the Equal
Protection and Due Process clauses of the Fifth and Fourteenth
Amendment of the United States Constitution.
The District Court erroneously ruled that in class lawsuits only attorneys can
represent class action claims,
And, secondly the District Court erroneously ruled that attorneys will be
appointed to class action lawsuits if the court is aware that a plaintiff will prevail.
Such a ruling violates judicial neutrality, for the court should not be aware if a case
is going to prevail before the trial.
24 Attorneys do not have a Constitutional mandate to exclusively being a class of people to assist in counsel before a court.
Thirdly, the court erred allowing the plaintiff to pay for an attorney, when the
Petitioner already advised the court that she did not have funds for retaining an
attorney.
The Court should have ruled in favor of the appointment of counsel, at least in
the procedural portion of the case based upon the petitioner being a victim of a
crime. To wit:
Right to the Assistance of Counsel.
A review of the United States Congressional Record of September 1st, 1789
during the era where our Forefathers argued and debated the express and explicit
language of the 6th Amendment and the right to the assistance of counsel, it is very
noteworthy indeed that the Creators of our Constitution were determined not to
ordain "attorneys" into our form of government.
Reviewing the Congressional record, a natural conclusion arises in that it is quite
apparent that the framers of our Constitution were determined that a person had a
right to self -representation as well as the assistance of counsel. There is no
constitutional obstruction that declares that a person must give up one right, the
right to self-representation in exchange for exercising another right, the right to the
assistance of counsel. A man of common sense would conclude that while exercising
the right to assistance of counsel a defendant could request his counsel to sit down,
while he speaks for himself.
25 The vagueness of the District Court decision by affording attorneys exclusive
rights to the assistance of counsel, while at the same time in civil cases there is
Constitutional vagueness that a person cannot proceed with the right to self-
representation, would bar a person from exercising their 1st Amendment Right to
Petition the government in a civil matter of any kind. It doesn't make sense.
Most of us accept the premise that highly skilled attorneys, who are proficient in
researching and presenting the law and the facts, can best represent their clients
and at the same time obtain the fairest results for society.36
In this context, the question arises as to why, as Faretta v. California37 holds,
there should be a constitutional right to represent oneself in a criminal case. The
answer is not a compelled one.38
36 The Supreme Court has often articulated this view in cases pertaining to the right of criminal
defendants to counsel. See, e.g., Argersiriger v. Hamlin, 407 U.S. 25 (1972); Gideon v. Wainright, 372
U.S. 335 (1963); Johnson v. Zerbst, 304 U.S. 458 (1937); Powell v. Alabama, 287 U.S. 45 (1932).
37 Faretta v. California, 422 U.S. 806 (1975), was a case in which the Supreme Court of the United
States held that criminal defendants have a constitutional right to refuse counsel and represent
themselves in state criminal proceedings.
38 There may well be no constitutional right to self-representation in a civil case.
Faretta holds that there is a constitutional right under the sixth amendment, which pertains only to
- criminal cases. That right is made applicable to the states by the fourteenth amendment. A statute, I
Stat. 73, 92, to the same effect was enacted in 1789 by the First Congress and was signed into law by
President Washington one day before the sixth amendment was proposed in the Congress. It
survives as amended and is currently codified at 28 U.S.C. § 1654 (1970); its key words have
remained unchanged since 1789. See note 20 infra. That statute is applicable to civil as well as
26 Justice Stewart's historical analysis in his majority opinion is most persuasive.39
Yet history, as the Chief Justice and Justice Blackmun observe in dissent, often suggests more than it can prove.40
Crime Victims Have the Right to Counsel.
The Sixth Amendment to the United States Constitution expressly provides a right to counsel in criminal cases, but is silent as to any similar right in civil cases.'
The failure of the courts to recognize a right to counsel of an indigent in a civil action has led to considerable controversy. There has been, however, a noticeable
criminal cases. It has been suggested that the Congress intended that the 1789 statute expand the then proposed constitutional right which was to be, and became, applicable only in criminal cases.
See Faretta v. California, 422 U.S. 806, 812-13 (1975). See also United States v. Plattner, 330 F.2d
271, 274 (2d Cir. 1964).
39 422 U.S. at 821.32. Justice Stewart traces an implied sixth amendment right of self-representation
from English legal history, and the insistence upon that right by the colonists. He concluded:
In sum, there is no evidence that the colonists and the framers ever doubted the right of self-
representation, or imagined that this right might be considered inferior to the right of assistance of
counsel. To the contrary, the colonists and the Framers, as well as their English ancestors, always
conceived of the right to counsel as an "assistance" for the accused, to be used at his option, in
defending himself. The Framers selected in the Sixth Amendment a form of words that necessarily
implies the right of self-representation. That conclusion is supported by centuries of consistent
history. Id. at 832.
40 Id. at 843-45 (Burger, C.J., dissenting), 850 (Blackmun, J., dissenting). The historical roots of pro
se representation are also analyzed at length in the legal commentaries cited in note 2 supra.
27 reluctance to discuss the rights of the appointed counsel, if any, to compensation for his services
The Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771, grants victims of federal crimes a myriad of rights that are implicated at the earliest stages of investigation, including when victims are interviewed by law enforcement or other governmental agencies. Victims also have weighty constitutional and rule-based rights that may be implicated during an investigative interview. These rights, whether grounded in the constitution, statutes, or rule make crime victims independent participants, rather than mere witnesses, in the criminal justice system.4' These rights must be interpreted through the lens of due process; consequently, victims' rights must be afforded in such a way that the rights are meaningful.42 In the context of investigatory interviews, due process requires recognition of the right to the presence of retained counsel.
The Supreme court first recognized a due process right to the assistance of counsel in 1932 in Powell v. Alabama,43 and although the context of the proceedings at issue in Powell today would be subject to analysis under the Sixth
Amendment right of criminal defendants to counsel, commentators have recognized
41 See Kenna v. U.S. Dist. Ct. for the C.D. Cal., 435 F.3d 1011, 1016 (9th Cir. 2006) ("The statute
[Crime Victims' Rights Act] was enacted to make crime victims full participants in the criminal justice system.").
42 See, e.g., Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (observing that fundamental aspects of due process include the opportunity to be heard in a "meaningful manner" and to be treated fairly).
43 287 U.S. 45 (1932).
28 that "the concept of a right to counsel grounded on due process has continuing 44 significance for other proceedings not encompassed by the Sixth Amendment." In
construing the requirements of due process, the Court has emphasized that "[d]ue -
process is flexible and calls for such procedural protections as the particular
situation demands[,]" and that, a determination of whether procedural protections
are constitutionally mandated "requires analysis of the governmental and private
interests that are affected."45 The factors to be considered include: (1) the private
interests at stake in the official action; (2) the risk of an erroneous deprivation of
the private interest through the procedures used and the probable value of any
additional or substitute procedural safeguards; and (3) the government's interest,
including the function involved and any fiscal and administrative burdens that
these procedures would create. 46
443 Wayne R. LaFave et al., The Constitutional Rights to Retained and Appointed Counsel, Crim.
Proc. § 11.1(b), at 1 (3d. ed. 2013). Other Supreme Court decisions have described the right to
retained and appointed counsel as resting on '"both equal protection and due process concerns."
Halbert v. Michigan, 545 U.S. 600, 610 (2005) (quoting M.L.B. v. S.L. J., 519 U.S. 102, 120 (1996)).
The Court has further explained that: "The equal protection concern relates to the legitimacy of
fencing out would-be appellants based solely on their inability to pay core costs,' while '[t]he due
process concern homes in on the essential fairness of the state-ordered proceedings." Id. at 610-11.
' Mathews v. Eldridge, 424 U.S. 319, 334 (1976).
46 Id.
29 S The plaintiff herself was clearly was sufficient prima facie proof of being a victim
of a crime against humanity solely on the basis of being afforded political asylum in
the United States.
III.
Review is warranted because there are deprivations of the Equal
Protection and Due Process clauses under the Fifth and Fourteenth
Amendments of the Constitution by the lower courts applying the Political
Question Doctrine to dismiss the Petitioner's complaint.
United States Supreme Court Political Question Doctrine
The political question doctrine47 could be read narrowly or more broadly. Read
narrowly, the political question doctrine should be invoked only when the issue
presented to the Court is one that "has been textually committed to another branch
of government." That is, if the framers of the Constitution made clear their
intention that the judiciary not resolves a particular question of constitutional
interpretation, that determination must be respected. More broadly, the political
question doctrine might be invoked when there is a lack of judicially manageable
standards to decide the case on the merits, when judicial intervention might show
insufficient respect for other branches of government, or when a judicial decision
- might threaten the integrity of the judicial branch.
47 http://law2.umkc.edu/faculty/projects/ftrials/conlaw/politicalquestions.html
30 In Baker v Carr (1962)48, the Court concluded that the political question doctrine did not bar courts from reaching the merits of a challenge brought against
Tennessee's system of apportioning its state legislature. Although the case was
"political" in the sense that it was about politics, and there were questions about how courts might grant relief if Tennessee's apportionment scheme was declared unconstitutional, the Court saw neither as reasons for invocation of the political question doctrine.
"Prominent on the surface of any case held to involve a political question is found:
a textually demonstrable constitutional commitment of the issue to a
coordinate political department;
or a lack of judicially discoverable and manageable standards for
resolving it;
or the impossibility of deciding without an initial policy determination of
a kind clearly for non-judicial discretion;
or the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government;
or an unusual need for unquestioning adherence to a political decision
already made;
or the potentiality of embarrassment from multifarious pronouncements
by various departments on one question."
48 BAKER v. CARR, 369 U.S. 186 (1962) Decided March 26, 1962.
31 (Baker v Carr)
In many other cases49, the Supreme Court has also ruled against a political question dismissal. In one case50, the Supreme Court did rule that a "textual commitment" with respect to the Senate concluding that the framers reserved that
question for the Senate itself to answer. However, if this Honorable Court were to
review, Marbury v. Madison,, 5 U.S. (1 Cranch) 137 (1803) and the Court's decision
pertaining to a lawsuit that involves foreign dignitaries, it is the United States
Supreme Court that has jurisdiction of these kinds of lawsuits under U.S.
Constitution, Article III, Section 2.
Finally, in another case51, the Supreme Court was divided 4-1-4 on whether
judicially manageable standards existed that could be used to decide such cases. In
effect, the concept of a lower court dismissing a case on grounds of a political
question is a vague and clouded premise that should not be afforded to deny the
plaintiffs exercising our right to petition and make our complaint before a court
under our First Amendment right.
The petitioner put up a very good argument regarding the political question
doctrine which on its face is quite "vague" as even the United States Supreme Court
in a 4-1-4 ruling could not determine whether judicially manageable standards
existed that could be used to decide such cases.
49 POWELL v. McCORMACK, 395 U.S. 486 (1969). Decided June 16, 1969.
50 NIXON v. UNITED STATES, 506 U.S. 224 (1993). Decided January 13, 1993
51 Vieth v. Jubelirer, 541 U.S. 267 (2004)
32 Additionally, the. petitioner found authorities and submitted authorities that stated "there is no political question" and in that context, because the doctrine is vague it is our claim that there is no political question involved in this case.
LUT
Review is warranted because there are deprivations of the Equal
Protection and Due Process clauses of the Fifth and Fourteenth
Amendment of the Constitution by the lower courts failing to cite reasons on appeal to seek relief and remedy.
My First Amendment right was denied without comment by the 9th Circuit and
9th Circuit En Banc courts under the Doctrine of Audita Querela for the appellate courts failed to provide me a written decision and in depth explanation under what
Constitutional authorities are these deprivations and/or what the denials are based upon or a decision they are indeed unconstitutional. This means our Writ is an application to the USSC after judgment where the lower court was seeking to avoid execution of that judgment because of some event intervening between judgment and execution which compromises the judgment creditor's entitlement to execution.
The District Court as well unlawfully withheld a valid summons and complaint properly executed by an officer of the law for months as the proof is in the court file when one compares the actual date of service versus the Clerk filing date. Months had gone by where a defendant did not oblige themselves to answer even after proper service. This alone gives rise to suspicion that the defendant had ex parte
33 contact with the District. Court as a method of avoiding answering the complaint and summons.
The Petitioner requests leeway in my presentation because I am without the assistance of counsel and proceeding in propria persona.
CONCLUSION
Based on the foregoing, Petitioners respectfully submit that there is too much conflicting evidence sustaining due process and equal protection deprivations in the lower courts. The Court may wish to consider summary reversal of the decision of the Ninth Circuit Court of Appeals.
The petition for a writ of certiorari should be granted.
Respectfully submitted, as sewn to, this 30th day of November 2018 pursuant to 28 U.S.C. 1746 that I declare this petition is true and faithfully correct.
XT Rev. Josephenie E. Robertson, M.T.T. Matriarch of the Miskitu Nation 1557 Jackson St. #301
Oakland, CA 94612 - U.S.A. Telephone: 510.410.1144 Email: [email protected] In Propria Persona
34 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT F ILED SEP 10 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
No. 17-17156 D.C. No. 3:17-cv-00852-JST Northern District of California, San Francisco
JOSEPHENIE ROBERTSON, M.T.T., individually and as the Representative, Officer and Matriarch of the Traditional Authority and Miskitu Government-In- Exile, Plaintiff-Appellant, V.
THE REPUBLIC OF NICARAGUA; et al., Defendants-Appellees. ORDER Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.
The full court has been advised of the petition for rehearing en banc and
no judge has requested a vote on whether to rehear the matter en bane. See
Fed. R. App. P. 35.
Robertson's petition for rehearing en bane (Docket Entry Nos. 12 and
14) and motion to stay the mandate (Docket Entry No. 13) are denied.
No further filings will be entertained in this closed case.
APPENDIX A APPENDIX B
Case: 17-17156, 04/17/2018, ID: 10839494, DktEntry: 11-1, Page 2 of 3
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FILED APR 17 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
No. 17-17156
D.C. No. 3:17-cv-00852-JST
JOSEPHENIE ROBERTSON, M.T.T., individually and as the Representative, Officer and Matriarch of the Traditional Authority and Miskitu Government-In- Exile,
Plaintiff-Appellant,
V.
THE REPUBLIC OF NICARAGUA; et al.,
Defendants-Appellees.
MEMORANDUM*
Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge Presiding.
Submitted April 11t, 2018**
Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges Josephenie Robertson appeals pro se from the district Court's judgment dismissing her action for lack of subject matter jurisdiction. We have jurisdiction under 28 U.S.C. § 1291.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
We review de novo a dismissal under Federal Rule of Civil Procedure
12(b)(1). Maronyan v. Toyota Motor Sales, U.S.A., Inc., 658 F.3d 1038, 1039
(9th Cir. 2011). We affirm.
The district court properly dismissed Robertson's action for lack of subject matter jurisdiction because Robertson alleged claims that presented a political question. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 980-82 (9th
Cir. 2007) (district courts have no jurisdiction to hear a case presenting a political question); see also Baker v. Carr, 369 U.S. 186, 217 (1962) (setting forth tests to determine whether case presents a political question); Mingtai
Fire & Marine Ins. Co., Ltd. v. UPS, 177 F.3d 1142, 1145 (9th Cir. 1999)
(authority to recognize foreign regimes is committed to the Executive Branch alone).
The district court did not abuse its discretion by denying Robertson's
motion for appointment of counsel because Robertson did not demonstrate
exceptional circumstances. See Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (setting forth standard of review and requirements for appointment of counsel).
To the extent that Robertson sought to maintain this action as a class
action lawsuit, Robertson cannot do so because she is not an attorney. See
C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987)
(a pro se litigant has no authority to appear as an attorney for others).
2 - 17-17156
We reject as unsupported by the record Robertson's contentions
regarding the district court's denial of her motion for sanctions and
treatment of Robertson's requests to amend her complaint.
AFFIRMED.
3 - 17-17156 APPENDIX C
Case 3:17-cv-00852-JSTDocument 92 Filed 10/06/17 Page 1 of 6
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Case No. 17-cv-00852-JST
JOSEPHENIE ROBERTSON
Plaintiff,
V.
The REPUBLIC OF NICARAGUA et al.,
Defendants.
ORDER GRANTING MOTION TO DISMISS, DENYING MOTION FOR SANCTIONS, AND DENYING MOTION "FOR JUDICIAL CLARIFICATION"
Re: ECF Nos. 32, 81, 82
Before the Court are Defendants' motion to dismiss the amended complaint. ECF
No. 81, and Plaintiff s motion for sanctions, ECF No. 82. Plaintiff s motion "for
judicial clarification," ECF No. 32, also remains pending. The Court will grant the
motion to dismiss and deny the other two motions.
I. BACKGROUND
This case stems from an internal conflict that has taken place for centuries
within the borders of the present-day Republic of Nicaragua involving the Miskitu,
a Native American ethnic group. The Court dismissed the original complaint, with leave to amend, after conclud[ing] that Plaintiff s lawsuit poses a political question
over which the Court has no jurisdiction." ECF No. 72 at 7 (footnote omitted). The
Court granted Plaintiff s request to extend the deadline to file an amended
complaint, ECF No. 75, and Plaintiff timely filed an amended complaint before the
extended deadline, ECF No. 78.
In the amended complaint, Plaintiff Rev. Josephenie E. Robertson alleges that
she is "the Matriarch of the Miskitu Nation, Miskitu Peoples (Twelve Tribes) and a
traditional royal representative of the Miskitu Government-in-Exile, which is the
sole recognized legal entity representing the overwhelming majority of the Miskitu
peoples in Nicaragua and worldwide."
Case 3:17-cv-00852-JST Document 92 File d 10/06/17 Page 2 of 6
EGF No. 78 40. She incorporates paragraphs 1 -30 of the original complaint and
adls several paragraphs detailing the history of the Miskitu people. d J$ 1 -39.
The amended complaint continues to allege that Defendants Republic of Nicaragua,
Daniel Ortega, Rosario Murillo, and the Sandinista Party engaged in the taking
and expropriation of Miskitu territories, lands, natural resources, waters, livestock,
- and other property without compensation in violation of international law." Id. \ 41.
The amended complaint also adds as a defendant Infinity Energy Resources, Inc.,
alleged to be located in Kansas, to have "engaged in the acquisition, exploration,
development, and production of natural gas and oil in the United States, in the
Autonomous Miskitu Territory and Nicaragua," and to have willfully and
maliciously civilly conspired with the other defendants to appropriate Miskitu natural resources (oil and gas) without affording the Miskitu representatives [an
opportunity] to participate in the negotiating process, or receive compensation or
profit sharing." kL 45. Infinity has not yet been served and has not made an
appearance in this lawsuit.
The Court previously dismissed *all claims with respect to the putative class
except Plaintiff Robertson's individual claim brought on her own behalf because an
unrepresented plaintiff may not bring class claims. ECF No. 72 at 2-3. 4'he
amended complaint nonetheless includes class allegations, ECF No. 78 \$ 77-80,
and the caption names Robertson and "all other Miskitu Indigenous peoples" as
Plaintiffs. The amended complaint also asserts an intent to join Ercell Hendy
Twaska Fleurima as a second plaintiff proceeding on her own behalf kL at I n.1.
II. DISCUSSION
A. Defendants' Motion to Dismiss
When the Court dismissed the original complaint, it explained that the
case "necessarily requires the judicial branch to question United States foreign
policy with Nicaragua and to recognize the Miskitu as a sovereign people even -
though the United States government has not done so." ECF No. 72 at 6. The Court
further explained that it "does not have the authority to formally recognize the
Miskitu people," and it agree[d] with Defendants that the core of Plaintiff s
complaint indeed is 'not the redress of particular alleged wrongs inflicted upon
individuals, but rather a request to adjudicate nearly 200 years of relations between L the Miskitu
Case 3:17-cv-00852-JST Document 92 Filed 10/06/17 Page 3 of 6 people and various sovereign governments as well as the corresponding impacts on th_V territorial integrity of the present-day Republic of Nicaragua." led (quoting ECF to. 18 at 23). The Court concluded that it lacked jurisdiction to determine this political question, which would "require the Court to 'engage in decision-making on the basis of policy rather than law." d at 6-7 (quoting T axpavers of the U.S. v. *3 Bush, No. CO3-03927 SI, 2004 WL 3030076, at (N.D. Cal. Dec. 30. 2004)).
Robertson's amended complaint does not cure this deficiency. Aside from three
additional paragraphs and the inclusion of Defendant Infinity Energy Resources,
Inc., Robertson repeats her causes of action verbatim from the original complaint.
Compare ECF No. 78 81-102 (amended complaint) with ECF No. 1 73-91
(original complaint). The three new paragraphs only highlight the political nature
of Robertson's complaint. For example, Robertson adds that she faced threats of dire
consequences for herself and child who was held captive for not cooperating in
attempting to exercise her rights as the lawful traditional authority as her people's
custodian and [was] compelled to leave her nation and people." ECF No. 78 91.
She also complains that Infinity "unlawfully appropriated" land by failing to include
"the Miskitu traditional authorities" in the negotiations. Id. $ 96. And she alleges
that:
Defendants at this very moment of litigation, in an attempt to avoid liability to the plaintiff and deceive the world, to assure complicity with the Sandinista government, in that they have presently installed a new king of the Miskitu nation" who is literally a "pretender["] to the Miskitu "throne" on June 18th, 2017 namely. (The King of the
oompa loompas -Hector Williams Padilla).
Id. 97. Rather than cure the deficiency identified in the Court's prior order, the new
allegations magnify that deficiency by underscoring that Robertson seeks to resolve
* political questions of sovereignty.
As with her opposition to the first motion to dismiss, Robertson's opposition to
the pending motion is silent on whether her complaint involves any non-political
questions. Her opposition instead focuses on pro se litigants' due process rights,
ECF No. 84 at 3-6, but the Court does not find any deficiencies in the process
Robertson has received. The Court has given Robertson the opportunity to fully
brief responses to both motions to dismiss, ECF Nos. 20, 84;
Case 3:17-cv-00852-JST Document 92 Filed 10/06/17 Page 4 of 6
heard oral argument on Defendants' motion to dismiss the original complaint, ECF
Nç. 70; and granted Robertson's request for an extension to file an amended
complaint, ECF No. 75. In addition, the Court has considered and ruled on multiple
other filings by Robertson. F.CF Nos. 45, 47, 69, 80. And the Court has construed
both Robertson's original complaint and her amended complaint liberally when
considering Defendants' motions to dismiss. In short, Robertson has received a full
and fair opportunity to be heard.
The amended complaint does refer to two cases for support, but neither
persuades the Court that it has jurisdiction over this case. First. Robertson cites a
pending district court case, Vekuii Rukoro v. Federal Republic of Germany, Case
No. 1:17-cv-00062 (S.D.N.Y. 2017), as an example of a plaintiff not "hav(ing] to prove the Namibian tribal leaders were recognized by the United States or most of the class action plaintiffs resided in the United States when successfully filing the complaint in the U.S. District Court and successfully Mitigating that case." ECF No.
78 $ 31. However, as Defendants correctly observe, the docket for that case indicates that plaintiffs have not yet served the complaint. See ECF Docket,
Rukoro, Case No. 1:17-cv-00062 (S.D.N.Y.). The mere filing of a complaint does not demonstrate the ability to state a claim, and the Rukoro court has not considered
the question before this Court - namely, whether the case raises nonjusticiable political questions. Rukoro is therefore not persuasive.
Second, Robertson cites Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108
(2013).' That case concerned the ability to state a claim under the Alien Tort
Statute -a secondary question to whether the complaint presents a nonjusticiable political question. But even if the Court were to reach the issue addressed in Kiobel, the case would support Defendants rather than Robertson. The Supreme Court held that a "case seeking relief for violations of the law of nations occurring outside the
United States is barred" under the Alien Tort Statute, and that even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application." Id.
At 124-25. Robertson's amended
'Robertson does not include the case citation, but it is clear from the information she included that she is referring to the cited case. See ECF No. 78 at 10 n.28 & 16 n.23 (referring to the dates on which the case was argued. reargued, and decided). Case 3:17-cv-00852-JSTDocument 92 Filed 10/06/17 Page 5 of 6
complaint focuses on alleged acts that occurred in Nicaragua, except for an
allegation that Defendant Infinity Energy Resources, Inc. engaged in the
acquisition, exploration, development and production of natural gas and oil in the
United States," as well as in Nicaragua. ECF No. 78
45. This conclusory allegation is insufficient "to displace the presumption
gainst extraterritorial application" of the Alien Tort Statute, Kiobel, 569 U.S. at
125, particularly when the amended complaint elsewhere makes clear that
Robertson's claims are based on Infinity's alleged unlawful a appropriat[ion]" of
an area offshore or Nicaragua, ECF No. 7 96, and are not tied to any activity
alleged to have occurred in the United States.
Finally, Robertson's attempt to add Fleurima as a second plaintiff does not
save her complaint. The amended complaint contains no specific allegations as to
Fleurima. More significantly, the gravamen of the case would remain a
nonjusticiable political question regardless of the number of individual plaintiffs
bringing suit. See, eg, ECF No. 78 33 (asserting that the outcome of this
precedent setting case could very well change the map of Central America"); id. \
84 (alleging Defendants' "refusal to recognize the right to self-determination of
the Miskitu peoples"); d 104(d) (requesting the Court to "[e]njoin and restrain
defendants from continuing to exclude plaintiffs and other traditional and lawful
representatives of the Miskitu peoples from participation in discussions and
negotiations regarding the subject matter of this Complaint"). Even when construing the complaint liberally, the Court concludes that the amended complaint continues to assert political questions over which this Court lacks jurisdiction. Robertson has already had one opportunity to amend the complaint, and it is clear to the Court that she could not cure this deficiency if given
further leave to amend. Accordingly, the amended complaint is dismissed without
leave to amend. See Reddy v. Litton Indus.. Inc., 912 E.2d 291, 296 (9th Cir. 1990)
("It is not an abuse of discretion to deny leave to amend when any proposed
amendment would be futile.").
B. Robertson's Motion for Sanctions
Robertson has filed a motion for sanctions based on allegations that an
attorney from the Indian Law Center, Mr. Armstrong A. Wiggins, has engaged in
improper ex parte communications with this Court. ECF No. 82. This Court has had
no communications with Mr. Wiggins.
Case 3:17-cv-00852-JST Document 92 Filed 10/06-17 Page 6 of 6.
Defendants' counsel also state that they have neither had contact with Mr. Wiggins
nor "directed anyone to have contact with him about this matter." F.CF No. 85 at 2.
The motion for sanctions is denied.
C. Robertson's Motion "for Judicial Clarification"
Robertson previously filed a notion "for judicial clarification" in which she asked
for appointment of counsel and for leave for certain plaintiffs to proceed under Doe
pseudonyms. ECF No. 32. The Court previously denied appointment of counsel, ECF No. 45, and does. not find good cause to reconsider that ruling. 4 he motion for leave to proceed pseudonymously is denied as moot following the dismissal of this
action.
CONCLUSION Robertson's motions for sanctions and for judicial clarification" are denied.
Defendants' motion to dismiss is granted without leave to amend. The Clerk shall
enter judgment and close the file.
ITISSO ORDERED. Dated: October 6. 2017
I Case 3:17-cv-00852-JSTDocument 93 Filed 10/06/17 Page 1 of 1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Case No. 17-cv-00852-JST
JOSEPHENIE ROBERTSON
Plaintiff,
V.
The REPUBLIC OF NICARAGUA et al.,
Defendants.
CLERK'S JUDGMENT Re: Dkt. No. 92
Pursuant to the Order Granting Motion to Dismiss, Denying Motion for
Sanctions, and Denying Motion "For Judicial Clarification" signed October 6, 2017,
Judgment is hereby entered in favor of Defendants and against Plaintiff.
IT IS SO ORDERED AND ADJUDGED.
Dated: October 6, 2017 Susan Y. Soong Clerk, United States District Court By: IF William Noble, Deputy Clerk to The Honorable JON S. TIGAR