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No 09 6446 7 93 cr 00091 jct 1 W D Va IN THE United States Court of Appeals FOR THE FOURTH CIRCUIT JULIEN MO

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No 09 6446 7 93 cr 00091 jct 1 W D Va IN THE United States Court of Appeals FOR THE FOURTH CIRCUIT JULIEN MO Powered By Docstoc
					No. 09-6446 7:93-cr-00091-jct-1(W.D.Va) ________________________________________________________________ IN THE

United States Court of Appeals
FOR THE FOURTH CIRCUIT ____________________ JULIEN MODICA, MPH, MPP and THE JMA FOUNDATION, INC.
Petitioners, v.

JULIA C. DUDLEY, UNITED STATES ATTORNEY AND THOMAS LINN ECKERT, UNITED STATES ATTORNEY, WESTERN DISTRICT OF VIRGINIA,
Respondents _______________________

___________________________________________________________________________

Petition For Rehearing En Banc
___________________________________________________________________________ Julien Modica, MPH, MPP 5909 West Broad Street Richmond, Virginia 23230 Office: (804) 592-5543 Fax: (804) 592-5567 Cell: (202) 276-1174

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STATEMENT REQUIRED BY FRAP 35(b)(1) Rehearing en banc is warranted here because this case involves a question of exceptional importance. Prior to the February 27, 2009 summary judgment, did the Department of Justice improperly construe the Due Process Right of Julien Modica and the affect of both Julien Modica’s February 1976 brain injury (GCS<4) and Julien Modica’s legal guardian, Kenneth Roland Dilks’, testimony at the July 18th, 1994 trial regarding Modica’s guilt or innocence when it opposed the extraordinary writ of error coram nobis? The answer to this question has long term legal representation implications for thousands of Iraq and Afghanistan veterans who suffer from brain injury/posttraumatic stress disorder/chronic depression; yet the panel in this case never decided whether the DOJ’s statutory construction of Coram Nobis was reasonable under the Supreme Court’s well-established Chevron test. Instead, the panel held that it was bound to accept the statutory interpretation of Coram Nobis that another panel of this Court had previously adopted in an unrelated case. The Court should grant rehearing en banc in order to apply the correct standard of review – the Chevron standard – to this case. Applying that standard, the Court should conclude that the DOJ improperly construed unambiguous statutory terms when it classified Modica’s writ of error coram nobis as a nuisance claim.

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PETITION FOR REHEARING EN BANC Julien Modica, MPH, MPP respectfully petitions the Court for rehearing en banc. This case involves the important issue of how to classify the long term affects of brain injury/posttraumatic stress disorder/chronic depression under Due Process. In recent years, brain injury/posttraumatic stress disorder/chronic depression among returning Iraq/Afghanistan veterans has assumed an increasingly integral role in our nation’s economy and culture. Any decision concerning the Due Process classification of veterans with brain injury/posttraumatic stress disorder/chronic depression will significantly shape the future development of veteran legal representation and affect the lives of millions of American veterans. In the order on review here, the DOJ failed to construe the various provisions of Due Process in the Writ of Error Coram Nobis to determine the appropriate classification for the long term effects of brain injury/posttraumatic stress disorder/chronic depression as it relates to Julien Modica. After reviewing a fact-intensive record that laid out the intricate details of how 20-years of brain injury rehabilitation could have affected Modica’s decisions/behaviors leading up to Julien Modica’s conviction, the DOJ determined that: (1.) the severe physical, cognitive and emotional disability associated with brain injury and brain injury rehabilitation (GCS<4); (2.) the lies, deception, and vindictive behavior by Kenneth R. Dilks and Calvin P. Dilks following Modica’s brain injury, and (3.) the
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physical and emotional injury Ken Dilks and Calvin Dilks caused involving a knife incident in September 2005 putting Julien Modica in the hospital outlined in the case Julien Modica, MPH, MPP v. Fairfax-Falls Church Community Services Board, AT LAW CL-2005-0007205 are not sufficient reasons to question, in a Coram Nobis trial, Ken Dilks’ motives with regard to his July 18th, 1994 testimony and to further recognize the Due Process Right associated with Coram Nobis. Coram Nobis is a vehicle to bring certain matters to the attention of the court which, if known at trial, would have prevented the rendition of the verdict. People v. Richetti, 302 NY 290, 298, 97 NE2d 908, 912 (1951). And, “guided” by: Korematsu v. United States, 323 U.S. 214 (1944). When courts review legal challenges to an agency’s interpretation of its authorizing statute, they must use the two-part test adopted by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). In this case, however, the panel did not apply the Chevron test to the DOJ’s statutory construction of the Due Process Right in Coram Nobis. Instead, the panel held that it was bound to accept the same statutory interpretation of Due Process that another panel of this Court had previously adopted in Barbara Taylor v. Progress Energy, Inc., 415 F.3d 364, 369 (4th Cir. 2005) (“Taylor”).1

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Barbara Taylor sued Progress Energy, Inc. (Progress) alleging violations of her rights under the Family and Medical Leave Act of 1993 (FMLA) Section 825.220(d), including the violation of (1.) her substantive right to twelve weeks of unpaid leave to deal with a serious health condition and (2.) her proscriptive right not to be discriminated or retaliated against for exercising her substantive FMLA rights. This Court concluded that the statute

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The DOJ’s statutory interpretation2 in this case never received the sort of judicial review required under the Supreme Court’s Chevron doctrine. Under Chevron, if the statute is not ambiguous, but the interpretation runs contrary to the statute, then the interpretation is considered unreasonable as the text of the statute prevails and the Department of Justice is not free to adopt their reading of Coram Nobis. The panel concluded that this Court’s precedents precluded it from applying Chevron here. However, the same constraints do not apply to the en banc Court, which is not bound by previous court decisions. The Court should grant rehearing en banc so that it can apply the correct standard of review – the Chevron test – to decide the issue at the heart of this case, an issue that the panel left unresolved: whether the DOJ reasonably construed Due Process when it classified Modica’s writ of error coram nobis as a nuisance claim. Once the Court applies the Chevron test, it will find that all of DOJ’s arguments in support of the Order lack merit. Because Coram Nobis clearly addresses the issue of how to classify brain injury/posttraumatic stress

prohibits the signed release Taylor signed as it relates to Taylor’s FMLA claims and that the regulation is valid under Chevron. This Court reversed the district court’s summary judgment order and remanded for further proceedings. The regulation’s plain language prohibits both the retrospective and prospective waiver or release of an employee’s FMLA rights. In addition, the regulation applies to all FMLA rights, both substantive and proscriptive. This Court concluded that the regulation is based on a permissible construction of the FMLA, and it is not “arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 844. 2 The DOJ (an Executive Agency) interpretation of Due Process is colored differently than most Federal Agency’s interpretation of a statute, because when the DOJ interprets it’s authorizing statute; namely, Due Process, improperly there is no intermediate step. The interpretation is automatically before the Judicial Branch of government and, consequently, in front of a federal judge. In terms of veterans without certified caregivers suffering from brain injury/posttraumatic stress disorder/depression there are no established steps that mitigate punishment.

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disorder/chronic depression, and because the DOJ resolved this issue by improperly interpreting unambiguous statutory terms, the Court should grant this petition for review and reverse the District Court Order in all respects. BACKGROUND Due Process of Law is the principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process of Law holds the government subservient to the law of the land, protecting individual persons from the state. Based on a September 24, 2009 Guardian article titled, “Revealed: the hidden army in U.K. prisons”, the delayed concern about brain injury/posttraumatic stress disorder/chronic depression as it relates to British Iraq/Afghanistan soldiers is raising great concern. “The number of former servicemen in prison or on probation or parole is now more than double the total British deployment in Afghanistan, according to a new study…” The U.S. Department of Justice should take note of this statistic and whether it is a foreshadowing of events to come. The background of Due Process of Law reverts to Chapter 39 of the Magna Carta, King John of England promised as follows: “No free man shall be taken or imprisoned or disseised of his Freehold, or Liberties, or free Customs, or be

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outlawed, or exiled, or any other wise destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.” Under Chevron a reviewing court must first ask “whether Congress has directly spoken to the precise question at issue.” Id., at 842. If Congress has done so, the inquiry is at an end; the court “must give effect to the unambiguously expressed intent of Congress.” Id., at 843; see also United States v. Hagger Apparel Co., 526 U.S. 380, 392, 143 L. Ed.2d 480, 119 S. Ct. 1392 (1999). “[T]he responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones.” Chevron supra, at 866. Quoting Judge Michael, quoting Yogi Berra, “[Y]ou can observe a lot by watching.” Looking at the legal trajectory of the trend in the U.K. among Iraq/Afghanistan veterans as well as of Julien Modica since his 1976 brain injury is informative, but this Court is not watching: (1.) gross negligence on the part of the Fairfax County School Board caused Modica’s brain injury; (2.) in the appeal from his 2005 Fairfax County Circuit Court case against the Fairfax County School Board, Modica filed a petition in the Supreme Court of Virginia and argued that the court’s personal moral convictions should suffice to overcome the strong, constitutionally based presumption in favor of the statute of limitations when the facts pertain to a person with neurological injury; and (3.) the Neurological Injury Protection Act of 2005, written by Modica, provides a Clear
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and Convincing Evidence standard for what is necessary to be a guardian of people with neurological injury as seen through the guardianship dispute between Michael and Terry Schiavo in the Florida Second District Court of Appeal case, Guardianship of Theresa Marie Schiavo, Incapacitated. Robert Schindler and Mary Schindler, Appellants, v. Michael Schiavo, as Guardian of the person of Theresa Marie Schiavo, Appellee, Case Number: 2D00-1269. Modica has lost each and every time he filed a motion against the Fairfax County School Board in the Fairfax County Circuit Court; not on the merits of the case, but on Statute of Limitations grounds (grounds that could prevent any person with a mental health issue, without appropriate guardianship, as seen in Schiavo v. Schiavo, from receiving Due Process). Virginia statute does not allow any case to be tolled long enough to positively affect Modica or, for that matter, an Iraq/Afghanistan veteran with brain injury/posttraumatic stress disorder/chronic depression. Mental health disabilities take decades; not years or months, to stabilize and unless an appropriate caregiver is available, by the time a mental health issue can stabilize, the statute of limitations is long passed. A point of law raised in this appeal is that unless the DOJ’s interpretation of Due Process is expanded, starting with the instant case, to include veterans diagnosed with a mental health disability, veterans will needlessly increase the U.S. prison population much like what is happening in the U.K.
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It should be unfathomable to all Americans that the DOJ is helping to put American military veterans in prison with war related trauma just because the DOJ has no intervening step to evaluate this trauma and because they are unable to properly interpret Due Process. As it stands now, the DOJ interprets Due Process to include all Americans unless they gave their life to the military to defend American values and by doing so they suffer brain injury/posttraumatic stress disorder/chronic depression. On April 28, 2008 former Senator Hillary Clinton introduced S. 2921, legislation to authorize certification for family caregiver personal care attendants for veterans and members of the Armed Forces with TBI. Although it never became law, this legislation attacked the problem of veteran representation from a non-legal angle with the belief that caregivers could stop the concerns over improper veteran Due Process. On August 12th, 2009 the Ninth Circuit Court of Appeals heard oral arguments in Veterans for Common Sense v. Shinseki. Veterans for Common Sense, the plaintiff in this case, is asking the Court to order the Department of Veterans Affairs to reform the way it deals with disability claims for posttraumatic stress disorder and traumatic brain injury. A lower court ruled that the judicial branch does not have the authority to order the VA to provide timely medical care.
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Since 1976 Julien Modica has been negatively affected by Ken and Calvin Dilks. Julien Modica has been forced to defend against their attacks without money and without family support because Ken and Calvin Dilks striped Julien of both. The only defense Julien Modica had was to educate himself well enough to initiate and support this appeal. Julien Modica has two master’s degrees, one in Public Health and one in Public Policy, and is working toward a PhD in U.S. Government from Georgetown University. This appeal started in 2004 with a simple motion to change his name back to Julien Modica and has continued with multiple unsuccessful attempts to recoup the financial loss Modica suffered because a timely claim was never filed on behalf of Modica by Ken Dilks against the Fairfax County School Board for gross negligence. The experience(s) regarding improper guardianship felt by Julien Modica is precisely why former Senator Clinton’s legislation and why the case, Veterans for Common Sense v. Shinseki are so important. Under Chevron the first question this Court has to answer, “has Congress directly spoken to the precise question at issue,” must be answered with a resounding, “yes” and, therefore, this Court “must give effect to the unambiguously expressed intent of Congress.” Id., at 842, 843. Senator Clinton’s legislation understood that without certified caregivers, the judicial system will be overwhelmed with cases just like the instant case. As described in Chevron, Courts
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ordinarily reverse an agency interpretation of this kind only if Congress has clearly answered the interpretive question or if the agency’s interpretation is unreasonable. In the instant case, Congress has answered the interpretive question. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). On March 19, 2009, at the Veterans of Foreign Wars convention President Obama also answered the interpretive question, “For their service and sacrifice, warm words of thanks from a grateful nation are more than warranted, but they aren’t nearly enough. We also owe our veterans the care they were promised and the benefits that they have earned. We have a sacred trust with those who wear the uniform of the United States of America. It’s a commitment that begins at enlistment, and it must never end. But we know that for too long, we’ve fallen short of meeting that commitment. Too many wounded warriors go without the care that they need. Too many veterans don’t receive the support that they’ve earned. Too many who once wore our nation’s uniform now sleep in the streets.” ARGUMENT When reviewing an agency’s interpretation of its authorizing statute, this Court must apply the two-part test established by the Supreme Court in Chevron. Under that test, the Court must ask “whether Congress has directly spoken to the precise question at issue.” Id., at 842. If Congress has done so, the inquiry is at an end; the Court “must give effect to the unambiguously expressed intent of
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Congress.” Id., at 843; see also United States v. Hagger Apparel Co., 526 U.S. 380, 392, 143 L. Ed.2d 480, 119 S. Ct. 1392 (1999). Simply put, in exigent situations, Chevron allows this Court to apply a “de novo standard” of review to agency interpretations of unambiguous statutory provisions. Holly Farms Corp. v. NLRB, 517 U.S. 392, 398, 134 L. Ed.2d 593, 116 S. Ct. 1396 (1996). The reading of the statute must be the “only plausible interpretation.” Regions Hosp. v. Shalala. 522 U.S. 448, 460, 118 S.Ct. 909, 139 L.Ed.2d 895 (1998). In determining whether Congress has specifically addressed the question at issue, the court should not confine itself to examining a particular statutory provision in isolation. Rather, it must place the provision in context, interpreting the statute to create a symmetrical and coherent regulatory scheme. Gustafson v. Alloyd Co.,513 U.S. 561, 569. In addition, the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand. See, e.g., United States v. Estate of Romani, 523 U.S. 517, 530-531. Finally, the court must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency. Cf. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 231. Pp. 8-10.

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The Ninth Circuit Court of Appeals heard oral arguments in Veterans for Common Sense v. Shinseki. Veterans for Common Sense, and co-plaintiff Veterans United for Truth, asked the Court to order the Department of Veterans Affairs to reform the way it deals with disability claims for post-traumatic stress disorder and traumatic brain injury. In a suit filed in July 2007 a lower court ruled that the judicial branch does not have the authority to order the VA to provide timely medical care. In this Court’s October 5th, 2009 per curiam opinion, Modica’s motion to file supplemental materials; e.g., Julien Modica, MPH, MPP and Allan M. Spiegel, MD, plaintiffs, v. Hon. Eric K. Shinseki, Secretary of Veterans Affairs, et al., defendants, “Complaint for Declaratory Relief Against Department of Veterans Affairs for Refusal of Paid Access to Hyperbaric Oxygen Therapy to Treat Brain Injury.” was granted and should be considered here. Veterans for Common Sense v. Shinseki appellate testimony was not limited too, but included the following statistics: (1.) it takes 4.4 years to exhaust the appeal processes within the VA; (2.) many cases have been pending for 15 years, way beyond reasonable requirements for Due Process; (3.) 3,000 veterans die each year, while their appeal is pending; and (4.) more than 85,000 veterans are on waiting lists for mental health care.

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It appears there are two interpretations of Due Process for veterans with TBI/PTSD/Depression: (1.) mental healthcare, where Due Process is expanded allowing veterans to die without ever receiving proper treatment and (2.) legal disputes, where Due Process is restricted by the veteran’s physical, cognitive, and emotional health allowing veterans to be improperly incarcerated. The instant case will have little affect on veteran mental health treatment, but will have a significant affect on the Due Process Rights received by veterans suffering from TBI/PTSD/Depression. Julien Modica, a U.S. Navy veteran, is being affected, in the instant case, by the latter. This is a precedent setting case, where Modica is asking for one thing only and that is the Coram Nobis trial, previously scheduled, in the District Court with Ken and Calvin Dilks as hostile witnesses, Paul Mazmanian, PhD & John Prosser as business character witnesses who intimately knew Modica’s work at JMA and can give insight into how the so-called check-kiting scheme could have occurred. Allan Spiegel, MD, a neurologist, providing expert testimony regarding the brain injury recovery process. Jim Brooker, a long time friend and father of a survivor of brain injury, and four Herndon High School classmates: John Robic, Shaun Sullivan, Mark Russ, Fred Dilkes, and as well Mr. Charles Smith (father of classmate Eric Smith) who knew Modica and the Dilks’ before and after Julien

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Modica’s 1976 traumatic brain injury, and will give insight into why Ken and Calvin Dilks are hostile toward Mr. Modica. The standard for the instant case and future cases involving veterans with TBI/PTSD/Depression must involve two questions: (1.) is there an existing treatment modality for the mental health condition affecting the defendant? (2.) is there an appropriate guardian associated with the veteran with TBI/PTSD/Depression and if so, what is their opinion? If the answer to the first and second question is no as is the case with Julien Modica, the court must make all determinations in a light most favorable to the veteran with TBI/PTSD/Depression. CONCLUSION The Court should grant rehearing en banc and reverse the District Court Order in all respects. Respectfully submitted,

Julien Modica President Veterans Health Care 5909 West Broad Street Richmond, VA 23230 804-592-5543

October 19, 2009
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