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SUPREME COURT Document Mentioning Tom Stahl Pleading

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SUPREME COURT Document Mentioning Tom Stahl Pleading Powered By Docstoc
					 1   Emanuel McCray
     1736 State Street
 2   San Diego, California 92101-2513
     (619) 696-9838
 3
     APPELLANT, Pro Se
 4

 5

 6

 7

 8                           UNITED STATES COURT OF APPEALS
 9                               FOR THE NINTH CIRCUIT
10

11   Emanuel McCray, on behalf of the       ) USCA No. 02-55078
                                            )
12   United States of America, e.t. al.;    ) USDC No. 01CV0582K (LAB)
                                            )
13                Plaintiffs-Appellants,    )
                                            )
14          vs.                             ) APPELLANTS’ INFORMAL       BRIEF
                                            )
15   The United States of America;          )
                                            )
16                Defendants-Appellees.     )
                                            )
17                                          )
                                            )
18
     1. JURISDICTION
19
     a. Timeliness of Appeal or Petition:
20
     (i) Date of entry of judgment or order of district court:
21
     (A) September 26, 2001.
22
     (B) December 6, 2001.
23
     (ii)   Date notice of appeal or petition filed:
24
     (A) January 4, 2002.
25
     b. EXCERPTS OF RECORD ATTACHED TO BRIEF:
26
     (1) ORDER DENYING TEMPORARY RESTRAINING ORDER; ORDER DISMISSING COMPLAINT
27
     WITHOUT PREJUDICE, filed September 26, 2001.
28
     (2) JUDGMENT IN A CIVIL CASE, filed December 6, 2001.



                                            -1-
 1   (3) District Court, Southern District of California Docket Sheet as of

 2   January 24, 2002.

 3   2. What are the facts of your case?

 4   A. On April 2, 2001, the original complaint was filed in this action.

 5   B. On August 16, 2001, the First Amended Complaint was filed in this action.

 6   C. The First Amended Complaint alleged the existence of “seven major NLRB

 7   criminal conspiracies, and at least 25 criminal sub-conspiracies associated

 8   with the NLRB‟s representation elections.” First Amended Complaint at pages

 9   12-13.

10   D. The Defendants were requested on or about August 16, 2001 to waive service

11   of the First Amended Complaint pursuant to Rule 4(d), Fed.R.Civ.P. (District

12   Court Docket #s 8 and 9.)

13   E. On August 27, 2001, at about 06:39a.m. and 09:10a.m., Appellant, by

14   telephone, contacted the Executive Office for United States Attorneys and

15   spoke with an individual who identified herself as Janet Craig, this office

16   Legal Counsel to ascertain proper submission procedures of complaint and to

17   locate the lost summons.

18   F. On August 27, 2001, at about 08:50a.m., Appellant, by telephone, contacted

19   the United States Attorneys Office, San Diego and spoke with an individual

20   who identified himself as Tom Stahl, Chief of the Civil Division to ascertain

21   proper submission procedures of complaint and to locate the lost summons. The

22   case was briefly discussed and case number was given to this individual who

23   indicated that he would look into the matter.

24   G. On August 27, 2001, at about 09:11a.m and 12:20p.m., Appellant, by

25   telephone, contacted the Office of the Docket Clerk for Attorney General John

26   Ashcroft, U.S. D.O.J., to ascertain proper submission procedures of complaint

27   and to locate the lost summons. This individual indicated the she had not

28   received the summons or the complaint in question.




                                           -2-
 1   H. On September 6, 2001, at about 01:22p.m., Appellant, by telephone,

 2   contacted the Office of the Clerk, House of Representatives. The call was

 3   forwarded to the Office of House Legal Counsel where an individual identified

 4   himself as Michael Stern, Chief Counsel. Appellant sought the correct mailing

 5   address and gave this individual the case number. This individual further

 6   indicated that Appellant would have to “serve all 435” members or words to

 7   that effect. This individual was serving as Senior Counsel to the House Ways

 8   and Means Committee on or about August 23, 2001.

 9   I. On or about September 22, 2001, Appellant received a letter from Beth L.

10   Levine, Assistant United States Attorney (AUSA), San Diego, advising

11   Plaintiff Emanuel in pertinent part that:

12         “[T]his office has not been properly served with your summons and
           complaint in the above-referenced case...” [and that] “The
13         federal defendants will respond to your complaint within 60 days
           after service of process has been accomplished in accordance with
14         Fed. R. Civ. P. 4.”

15   J. On September 26, 2001, because no Defendant took advantage of Rule 4‟s

16   waiver requirements, caused the Summons and a copy of the First Amended

17   Complaint to be served on the Defendants pursuant to Federal and State of

18   California rules of service of summons and incurred costs of service in

19   excess of $2000.00. (District Court Docket # 19.)

20   K. The alias Summons allowed the Federal Government 60 days to post an

21   appearance in the action.

22   L. The claims and causes of action arising under the False Claims Act also

23   allowed the Federal Government 60 days to post an appearance in the action.

24   M. The alias Summons allowed the non-Federal Government Defendants 20 days to

25   post an appearance in the action.

26   N. The non-Federal defendants did not apply for an “enlargement of time”

27   pursuant to Rule 6(b), Fed.R.Civ.P., nor bring any other pre-answer motion

28   pursuant to Rule 12(h).




                                          -3-
 1   O. The district court‟s jurisdiction, comprising over 23 statutory

 2   provisions, was set forth in paragraph 1, page 4 of the first amended

 3   complaint and paragraph 5, pages 9-10 of the second amended complaint.

 4   P. The Second Amended Complaint was filed on Friday, November 16, 2001.

 5   Q. “[T]he Government is the true party in interest in any qui tam action,

 6   despite the relator‟s litigious role.”

 7   R. Plaintiff Emanuel brought this action to recover damages to the United

 8   States, himself and all others similarly situated. However, the court‟s

 9   September 26, 2001 Order unlawfully characterized the Complaint as belonging

10   solely to Plaintiff Emanuel.

11   S. Filed on September 26, 2001, the District Court‟s Order dismissed without

12   prejudice Plaintiff United States and Plaintiff Emanuel‟s First Amended

13   Complaint for failing to comply with Rule 8‟s “short and plain” provisions.

14   T. The First Amended Complaint indicated that it was filed by, (1) Emanuel

15   McCray, on behalf of the United States of America; (2) Emanuel McCray, on

16   behalf of himself and all others similarly situated; and (3) Emanuel McCray

17   on behalf of the People of California and the remaining Several States.

18   U. The Complaint was based on a history of Government conspiracy, fraud,

19   concealment and abuse of power dating back to August 1947. This abuse was

20   alleged to be the proximate cause of the injury and damages all Plaintiffs

21   suffered.

22   V. There is no indication on the record that the District Court and the

23   Attorney General consented to the dismissal the first amended complaint

24   pursuant to Title 31 U.S.C.A. § 3730(b)(1).

25   W. No Defendant sought clarification of any of the proceedings of Judge Keep,

26   nor did any Defendant appeal any of Judge Keep‟s Orders.

27   X. On November 19, 2001, the district court, without affording Plaintiff

28   Emanuel a hearing and opportunity to appear and show cause, ordered the




                                          -4-
 1   Second Amended Complaint be rejected for failure to file an amended complaint

 2   within forty-five days. (District Court Docket #20.)

 3   Y. On December 5, 2001, the district court, without affording Plaintiff

 4   Emanuel a hearing and opportunity to appear and show cause, dismissed with

 5   prejudice the First Amended Complaint, which was entered on December 6, 2001.

 6   (District Court Docket #23.)

 7   Z. On January 4, 2002, because no Defendant appeared as compelled by the

 8   Summons, Plaintiff Emanuel requested entry of their defaults. (District Court

 9   Docket #24.)

10   AA. On January 4, 2002, took an appeal as a matter of right. (District Court

11   Docket #26.)

12   BB. No Defendant cross-appealed the appeal timely filed by Plaintiffs on

13   January 4, 2002.

14   3. What did you ask the District Court to do?

15   (1) First Amended Complaint at pages 113-115:

16         “A. Declare, the Excelsior criminal conspiracy violates the
           First, Fourth, Fifth, Tenth, Thirteenth, and Fourteenth
17         Amendments of the United States Constitution and the NLRA;
           B. Preliminarily and permanently enjoin all Defendants from
18         enforcing the above-noted provision;
           C. Declare the 30 percent showing of interest conspiracy violates
19         the First, Fourth, Fifth, Tenth, Thirteenth, and Fourteenth
           Amendments of the United States Constitution and the NLRA;
20         D.Preliminarily and permanently enjoin all Defendants from
           enforcing the above-noted provision;
21         E. Declare the administrative policy of “nonlitigation showing of
           interest” conspiracy violates the First, Fourth, Fifth, Tenth,
22         Thirteenth, and Fourteenth Amendments of the United States
           Constitution, the NLRA and basic rules of evidence;
23         F. Preliminarily and permanently enjoin all Defendants from
           enforcing the above-noted provision;
24         G. Declare the wrongful conduct violates the False Claims Act, 31
           U.S.C.A. § 3729 et seq.;
25         H. Preliminarily and permanently enjoin all Defendants from
           enforcing the above-noted provision;
26         I. Award Plaintiff Emanuel such proceeds as appropriate under 31
           U.S.C.A § 3730(d).
27         J. Declare the disclosure of the voting list criminal conspiracy
           violates the First, Fourth, Fifth, Tenth, Thirteenth, and
28         Fourteenth Amendments of the United States Constitution, the NLRA
           and 5 U.S.C.A. § 552(b)(6);




                                          -5-
 1   K. Preliminarily and permanently enjoin all Defendants from
     enforcing the above-noted administrative policy;
 2   L. Preliminarily and permanently join all Plaintiff employees
     from contributing money to the Defendant unions currently
 3   certified as exclusive representative under the Board unless of
     their own free will.
 4   M. Preliminarily and permanently enjoin all employers from
     withholding dues payments from their employees‟ paycheck.
 5   N. Direct a temporary cessation on representation elections for
     the workplaces of all Plaintiff employers and employees for a
 6   minimum 10 ten years.
     O. Direct Defendant Class 4, (NLRB Chairman), and all of its
 7   officers to summarily dismiss all actions acquired by way of the
     seven criminal conspiracies for want of jurisdiction.
 8   P. Direct Defendant Class 4, (NLRB Chairman), and all of its
     Regional Officers to invalidate all representation elections
 9   conducted since February 4, 1996.
     Q. Direct Defendant Class 4, (NLRB Chairman), and all of its
10   officers to decertify all exclusive representatives certified by
     the Board since December 4, 1966.
11   R. Direct Defendant Class 5, (NLRB General Counsel), to remove
     all officers and employees within his charge or, in the
12   alternative a court decree.
     S. Direct Defendant Class 4, (NLRB Chairman), to remove all
13   officers and employees within his charge, or in the alternative a
     court decree.
14   T. Upon removal, permanently bar all removed personnel from
     future employment at the Board or as a consultant to it.
15   U. Direct Defendant Class 4, (NLRB Chairman), and all of its
     officers to deliver the vacated government property and
16   facilities to the appropriate Federal agencies.
     V. Permanently bar all Defendants Classes 4 through 22 from
17   occupying the vacated employment positions at the Board.
     W. Award Plaintiff employees and Plaintiff employers minimum
18   $5,000 compensation for each election they participated in, and
     treble damages pursuant to 18 U.S.C.A. § 1964(c) against
19   Defendants Classes 4, 5, and 7 through 20.
     X. Award Plaintiff employees and Plaintiff employers minimum
20   $5,000 compensation for each election for violation of their
     constitution rights pursuant to the doctrine of Bivens, against
21   Defendant Classes 4, 5, and 7 through 20.
     Y. Award the Plaintiff Employees minimum $1,000 restitution for
22   lost of private data from personnel records against Defendants
     Classes 4, 5, and 7 through 20.
23   Z. Award Plaintiff employees and employers minimum $5,000
     compensation for violation of state privacy law, Article I,
24   Section 1 and B&P 17200, et seq., and treble damages, costs of
     suit, and reasonable attorney's fees pursuant to Penal Code
25   496(c) against Defendant Classes 4, 5, and 7 through 20.
     AA. Retain jurisdiction of this action to ensure compliance with
26   its decree;
     (7) Award Plaintiffs attorney‟s fees and all other reasonable
27   expenses occurred in pursuit of this action; and
     BB. Grant Plaintiffs such other and further relief as the Court
28   deems just and proper.”




                                    -6-
 1   (2) Second Amended Complaint, at pages 63-69:

 2        “245. ON BEHALF OF ALL PLAINTIFFS:
          (A) For an order declaring this action to be a proper class
 3        action pursuant to Federal Rule 23.
          (B) For an order declaring this action to be a proper class
 4        action pursuant to California State law;
          246. FURTHER ON BEHALF OF ALL PLAINTIFFS:
 5        (A) Pursuant to First and Eight Causes of Actions.
          (B) Against All Defendants.
 6        (C) For an order declaring that the administrative practices and
          procedures involving,
 7        (1) the demand for a second eligibility list containing the names
          and addresses of all voters for use at the polls;
 8        (2) the demand for a second eligibility list containing the names
          and addresses of all voters for disclosure to the petitioning
 9        union;
          (3) the disclosure of the voting lists to petitioning unions;
10        (4) the filing of representation election petitions supported by
          less than majority support;
11        (5) the processing of representation election petitions supported
          by less than majority support;
12        (6) the wording of the Stipulated Election Agreement;
          (7) the minimum 30 percent showing of interest;
13        (8) the nonlitigation of minimum showing of interest; and
          (9) the posting of election notices 3-days before the election;
14        are:
          (a) arbitrary, capricious, an abuse of process, power and
15        discretion, or otherwise not in accordance with law;
          (b) contrary to constitutional right, power, privilege, or
16        immunity;
          (c) in excess of statutory jurisdiction, authority, or
17        limitations, or short of statutory right;
          (d) without observance of procedure required by law;
18        (e) unsupported by substantial evidence in a case subject to
          sections 556 and 557 of this title or otherwise reviewed on the
19        record of an agency hearing provided by statute; and or
          (f) unwarranted by the facts to the extent that the facts are
20        subject to trial de novo by the reviewing court.
          (D) For an order or decree preliminarily and permanently
21        enjoining all Defendants from enforcing the above-noted
          administrative practices and procedures.
22        247. FURTHER ON BEHALF OF ALL PLAINTIFFS:
          (A) Pursuant to Second Cause of Action:
23        (B) Against All NLRB Defendants.
          (1) For an order declaring that these Defendants engaged in or
24        continue to engage in a conspiracy or conspiracies to violate the
          terms and conditions of their Oath of Office; Oath of Employment;
25        and or Employment Contract.
          (2) For an order or decree that, (a) puts an end to their
26        conspiracy or conspiracies; (b) deprives the Defendants of all
          benefits of their conspiracy or conspiracies; and (c) breaks up
27        or renders impotent the power of the conspiracy or conspiracies
          that have violated and or continues to violate their Oaths of
28        Offices; Oaths of Employment; and or Employment Contracts.
          248. FURTHER ON BEHALF OF ALL PLAINTIFFS:
          (A) Pursuant to Second Cause of Action.


                                          -7-
 1   (B) Against Defendant United States and All NLRB Defendants.
     (1) For an order declaring that, these Defendants engaged in or
 2   continue to engage in, a conspiracy or conspiracies to violate
     the named Constitutional and Statutory provisions of the United
 3   States and the State of California.
     (2) For an order or decree that, (a) puts an end to their
 4   conspiracy or conspiracies; (b) deprives these Defendants of all
     benefits of their conspiracy or conspiracies; and (c) breaks up
 5   or renders impotent the power of the conspiracy or conspiracies
     that violated and or continues to violate the named
 6   Constitutional and Statutory provisions of the United States and
     the State of California.
 7   249. FURTHER ON BEHALF OF ALL PLAINTIFFS, INCLUDING PLAINTIFF
     UNITED STATES:
 8   (A) Pursuant to First through Sixteenth Causes of Actions.
     (B) Against Defendant United States; Defendant NLRB and its
 9   current Board members.
     (C) For an order directing these Defendants to:
10   (1) set aside and invalidate all representation elections held
     since February 4, 1966 pursuant to the alleged unlawful
11   administrative practices and procedures;
     (2) decertify all exclusive representatives certified by the
12   Board and its officers and employees since February 4, 1966
     involving the aforementioned representation elections;
13   (3) summarily dismiss or withdraw all actions pending before the
     Board and its agencies and or before any Federal or State Court
14   or other court acquired as a result of the aforementioned
     unlawful administrative practices and procedures;
15   (D) For an order or decree directing a temporary halt to
     representation elections involving all workplaces, employers and
16   employees affected by the invalidation of elections and
     decertification of representatives for a minimum of ten (10)
17   years.
     (E) For such other further relief as the court deems appropriate
18   and necessary.
     250. FURTHER ON BEHALF OF PLAINTIFF EMANUEL AND ALL OTHERS
19   SIMILARLY SITUATED:
     (A) Pursuant to Second Cause of Action.
20   (B) Against Defendant United States; NLRB Defendants William B.
     Gould IV, Margaret A. Browning, Sarah M. Fox, John E. Higgins,
21   Jr., Victoria E. Aguayo; and Steven J. Sorenson; and Defendants
     Teamsters Local No. 542; Phillip Saal; Harold Smith; Donald
22   Paddock; Kenneth Lundren; Jack Ross; Annette Houston; William
     Wendell; TOSDAL, LEVINE, SMITH & STEINER; and Fern M. Steiner.
23   (1) For an order declaring that, these Defendants engaged in or
     continue to engage in, a conspiracy or conspiracies to violate
24   the named Constitutional and Statutory provisions of the United
     States and the State of California.
25   (2) For an order or decree that, (a) puts an end to their
     conspiracy or conspiracies; (b) deprives these Defendants of all
26   benefits of their conspiracy or conspiracies; and (c) breaks up
     or renders impotent the power of the conspiracy or conspiracies
27   that violated and or continues to violate the named
     Constitutional and Statutory provisions of the United States and
28   the State of California.
     251. FURTHER ON BEHALF OF PLAINTIFF EMANUEL:




                                    -8-
 1   (A) Pursuant to Eighteenth and Nineteenth Causes of Action and
     Title 28 U.S.C.A. §§ 2675(a) and (b).
 2   (B) Against Defendant United States and Defendant NLRB.
     (1) For the full amount of the Tort Claim.
 3   (2) Costs, fees and attorney‟s fees and all other reasonable
     expenses incurred in pursuit of this Claim.
 4   252. FURTHER ON BEHALF OF PLAINTIFF EMANUEL:
     (A) Pursuant to Eighth Cause of Action.
 5   (B) Against Defendant United States and All NLRB Defendants.
     (1) At least 15 percent of the proceeds, reasonable expenses and
 6   attorney‟s fees and costs.
     253. FURTHER ON BEHALF OF PLAINTIFF EMANUEL AND ALL OTHERS
 7   SIMILARLY SITUATED:
     (A) Pursuant to Ninth Cause of Action.
 8   (B) Against Defendant United States and NLRB Defendants William
     B. Gould IV, Margaret A. Browning, Sarah M. Fox, John E. Higgins,
 9   Jr., Victoria E. Aguayo; and Steven J. Sorenson.
     (1) Damages including compensation; restitution; emotional
10   distress; intentional infliction of emotional distress; and
     punitive.
11   254. FURTHER ON BEHALF OF PLAINTIFF EMANUEL AND ALL OTHERS
     SIMILARLY SITUATED.
12   (A) Pursuant to Third, Fourth, Fifth, and Sixth Causes of
     Actions.
13   (B) Against Defendants William B. Gould IV, Margaret A. Browning,
     Sarah M. Fox, John E. Higgins, Jr., Victoria E. Aguayo; Steven J.
14   Sorenson; Teamsters Local No. 542; Phillip Saal; Harold Smith;
     Donald Paddock; Kenneth Lundren; Jack Ross; Annette Houston;
15   William Wendell; TOSDAL, LEVINE, SMITH & STEINER; and Fern M.
     Steiner.
16   (1) Damages pursuant to doctrine of Bivens v. Six Unknown Fed.
     Narcotics Agents, 403 U.S. 388 (1971), including compensation;
17   restitution; emotional distress; intentional infliction of
     emotional distress; and punitive.
18   255. FURTHER ON BEHALF OF PLAINTIFF EMANUEL AND ALL OTHERS
     SIMILARLY SITUATED.
19   (A) Pursuant to Tenth through Sixteenth Causes of Actions.
     (B) As set forth in “RICO Case Statement” pursuant to Local
20   District Court Rules.
     256. FURTHER ON BEHALF OF ALL REMAINING PLAINTIFFS SIMILARLY
21   SITUATED:
     (A) Pursuant to Third, Fourth, Fifth, and Sixth Causes of
22   Actions.
     (B) Against All Remaining Defendants To Be Set Forth At Trial.
23   (1) Damages pursuant to doctrine of Bivens supra, including
     compensation; restitution; emotional distress; intentional
24   infliction of emotional distress; and punitive.
     257. FURTHER ON BEHALF OF ALL REMAINING PLAINTIFFS SIMILARLY
25   SITUATED:
     (A) Pursuant to Ninth Cause of Action.
26   (B) Against All Remaining Defendants To Be Set Forth At Trial.
     (1) Damages including compensation; restitution; emotional
27   distress; intentional infliction of emotional distress; and
     punitive.
28   258. FURTHER ON BEHALF ALL REMAINING PLAINTIFFS SIMILARLY
     SITUATED.
     (A) Pursuant to Tenth through Sixteenth Causes of Actions.


                                    -9-
 1         (B) As set forth in “RICO Case Statement” pursuant to Local
           District Court Rules To Be Further Set Forth At Trial.
 2         259. FURTHER ON BEHALF OF ALL REMAINING PLAINTIFFS SIMILARLY
           SITUATED:
 3         (A) Pursuant to Seventeenth and Eighteenth Causes of Actions.
           (B) Against All Remaining Defendants To Be Set Forth Further At
 4         Trial.
           (1) Damages including compensation; restitution; emotional
 5         distress; intentional infliction of emotional distress; punitive;
           260. Retain jurisdiction of action to ensure compliance with its
 6         orders and decrees.
           261. Award Plaintiff Emanuel and members of the Class interest;
 7         costs and fees pursuant to 18 U.S.C.A. § 1964(c); 28 U.S.C.A. §
           2412; California Code of Civil Procedure § 1021.5; and California
 8         Penal Code § 496(c).
           262. Grant such other relief as the Court deems just and proper.
 9                                     JURY DEMAND
           263. Plaintiffs demand a trial by jury.”
10
     4. State the claim or claims you raised at the district court.
11
     (1) First Amended and Second Amended Complaints:
12
     (A) Whether the NLRB conspired to violate the NLRA?
13
     (B) Whether the NLRB conspired to violate the FOIA?
14
     (C) Whether the NLRB conspired to violate RICO?
15
     (D) Whether the NLRB conspired to violate the FCA?
16
     (E) Whether the NLRB conspired to violate the Federal and State
17
     Constitutions?
18
     (F) Whether the NLRB conspired to violate the Business & Professions Code?
19
     5. What issues are you raising on appeal?
20
     (1) Whether the district court abused its discretion when it dismissed
21
     without prejudice the First Amended Complaint on September 26, 2001, without
22
     the consent of the Attorney General as required under Title 31 U.S.C.A. §
23
     3730(b)(1)?
24
     (2) Whether the district court abused its discretion when it dismissed with
25
     prejudice the First Amended Complaint on December 5, 2001 without the consent
26
     of the Attorney General as required under Title 31 U.S.C.A. § 3730(b)(1)?
27
     (3) Whether the district court abused its discretion when it dismissed with
28
     prejudice the First Amended Complaint without affording Appellant a hearing




                                          -10-
 1   and opportunity to be heard as required by this circuit‟s dismissal

 2   precedence?

 3   (4) Whether the Judgment rendered on December 5, 2001 a “nullity;”

 4   “fraudulently begotten;” contrary to this circuit‟s res judicata precedence;

 5   and therefore “coram non judice?”

 6   (5) Whether, taking the record below as a whole, the entire proceedings below are

 7   coram non-judice and the Plaintiffs are entitled to claim as a matter of right,

     justice, law and equity, a default Judgment against the Defendants for willfully
 8
     failing to appear as compelled by a duly served summons of process?
 9
     6. Did you present all these issues to the district court?
10
     (1) No. The district court terminated proceedings without a hearing and
11
     opportunity to appear before dismissing with prejudice the First Amended
12
     Complaint.
13
     (2) Appellants now believe the district court acted with such haste to: (1)
14
     prevent certain defendants from further incriminating themselves; and (2) and
15
     carry out political activism; any one of which sufficient to invoke Title 28
16
     U.S.C.A. § 455 et. seq., and render the entire proceedings below coram non
17
     judice.
18
     7. What law supports these issues on appeal?
19
     (A) Title 31 U.S.C.A. § 3730(b)(1)
20
     (B) Rule 4(b) Federal Rules of Civil Procedure (Fed.R.Civ.P.)
21
     (C) Rule 4(d), Fed.R.Civ.P.
22
     (D) Rule 55(a), Fed.R.Civ.P.
23
     (E) Rule 55(a), Fed.R.Civ.P.
24
     (F) California Civil Code § 585(b)
25
     (G) California Business & Professions Code § 17200 et. seq.
26
     (H) Bautista v. Los Angeles County, 216 F.3d 837, 841-842 (9th Cir. 2000)
27
     (I) Caro v. Proctor and Gamble Co., 18 Cal.App.4th 644, 661-662 (1993)
28
     (J) Degen v. United States, 517 U.S. 820, 827-829 (1996);



                                              -11-
 1   (K) Henderson v. United States, 517 U.S. 654, 662-663 (1996)

 2   (L) Herman & MacLean v. Huddleston, 459 U.S. 375, 391 (1983)

 3   (M) Hogya v. Superior Court, 75 Cal.App.3d 122 (1977)

 4   (N) Hughes Aircraft Co. v. United States ex rel Schumer, 520 U.S. 939, 949

 5   (1997)

 6   (O) In Re Schimmels, 127 F.3d 875, 883-884 (9thCir. 1997)

 7   (P) Moore v. Painewebber, Inc., 189 F.3d 165, 172-173 (2ndCir. 1999)

 8   (Q) Sanders v. Union Pacific R.R. Co., 193 F.3d 1080, 1082 (9th Cir. 1999);

 9   (R) Sealift Bulkers, Inc., v. Republic of Armenia, 965 F.Supp. 81, 85 (D.D.C.

10   1997)

11   (S) TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9thCir. 1987)

12   (T) U.S. v. Baird-Neece Packing Corp., 151 F.3d 1139, 1144 (9thCir.1998)

13   (U) U.S. ex rel Haycock v. Hughes Aircraft Co., 98 F.3d 1100, 1102 (9thCir.

14   1996)

15   (V) U.S. ex rel. Hopper v. Anton, 91 F.3d 1261, 1266-1267 (9thCir. 1996)

16   (W) U.S. ex rel Killingsworth v. Northrop Corp., 25 F.3d 715 (9thCir. 1994)

17   (X) U.S. v. Krizek, 192 F.3d 1024, 1029 (D.C.Cir. 1999)

18   (Y) U.S. v. Nardone, 782 F.Supp. 996, 998 (M.D.Pa. 1990)

19   (Z) U.S. Ex Rel. Sutton v. Double Day Office Services, 121 F.3d 531, 534

20   (9thCir. 1997)

21   (AA) Yourish v. California Amplifier, 191 F.3d 983, 986, 990-992 (9th Cir.

22   1999).

23   (BB) Waialua Agr. Co. v. Maneja, 178 F.2d 603 (9th Cir. 1949)

24                             JUDICIAL DISQUALIFICATION

25   (CC) The first and second amended complaints were “sandwiched” between

26   extreme political bickering. The media and political pundits routinely report

27   extreme dissatisfaction among Democrat leaders at the highest levels of

28   Government with the results of Election 2000; the Republicans‟ political




                                          -12-
 1   nominees and domestic agenda; and President George W. Bush, Attorney General

 2   John Ashcroft and Supreme Court Justice Antonin Scalia.

 3   (DD) Judge Keep has publicly declared her political affiliation to be

 4   “Democrat.” Judge Keep knew, or had reason to know, of the deeply held bias

 5   and prejudice her political party leaders have towards Republicans,

 6   particularly those currently in power.

 7   (EE) Judge Keep knew, or should have known, that labor unions provide over

 8   95% of their campaign contributions to her political party. Exhibit 4, page

 9   16, First and Second Amended Complaints; http://www.opensecrets.org.

10   (FF) Judge Keep knew, or should have known, that lawyers and law firms

11   provide over 68% of their campaign contributions to her political party.

12   http://www.opensecrets.org.

13   (GG) Judge Keep knew, or had reason to know, the NLRB‟s and labor unions‟

14   conspiracy, concocted back in or about 1947, had been exposed and she was

15   required by law to render affirmative relief on behalf of Plaintiffs. Judge

16   Keep refused to act and instead punted the ball to this circuit, in part,

17   hoping that Plaintiffs would sleep on their rights.

18                          DUE PROCESS DISMISSAL PRECEDENCE

19   (HH) This circuit‟s due process requirements for actions involving dismissal

20   with prejudice is settled. When a plaintiff fails to amend his complaint

21   after the district judge dismisses the complaint with leave to amend, the

22   dismissal is typically considered a dismissal for failing to comply with a

23   court order under Rule 41(b). In order for a court to dismiss a case as a

24   sanction, the district court must consider five factors. Bautista v. Los

25   Angeles County, 216 F.3d 837, 841-842 (9th Cir. 2000); Sanders v. Union

26   Pacific R.R. Co., 193 F.3d 1080, 1082 (9th Cir. 1999); Yourish v. California

27   Amplifier, 191 F.3d 983, 986, 990-992 (9th Cir. 1999).

28




                                          -13-
 1   (II) Judge Keep failed, refused or otherwise ignored these requirements when

 2   she issued the sudden-death dismissal with prejudice order filed on December

 3   5, 2001.

 4                              RES JUDICATA PRECEDENCE

 5   (JJ) According to this court in Waialua Agr. Co. v. Maneja, 178 F.2d 603 (9th

 6   Cir. 1949), “The „judgment‟ [rendered by Judge Keep would be] a nullity” and

 7   must fall and be stricken from the record for the following outstanding

 8   reasons:

 9   (1) It gives no mandate or command;

10   (2) There is no “‟case or controversy‟” shown in the findings and judgment

11   within the meaning of the Constitution.

12   (3) It does not identify all of the Defendants and Plaintiffs with clarity

13   and specificity listed on the first and second amended complaints and duly

14   served as reported in District Court Docket #19;

15   (4) There is no declaration of the rights of these defendants or Plaintiffs,

16   any one of them either positively or negatively;

17   (5) There is not the positiveness of command;

18   (6) It gives no declaration founded upon fact or pronouncement of findings of

19   fact required by a judgment that is to stand as res judicata between the

20   parties and privies;

21   (7) The fatal absence of findings as to the particular individuals named as

22   Defendants and Plaintiffs leaves no pediment on which a judgment can stand;

23   (8) Summons was served on approximately one hundred ninety-eight (198)

24   defendants, the “judgment” names only one defendant;

25   (9) The first and second amended complaints named at least two Plaintiffs,

26   with the possibility of over sixteen million Plaintiffs, the “judgment” names

27   only one Plaintiff; and

28




                                           -14-
 1   (10) The first and second amended complaints were brought as class actions,

 2   and remain such unless and until the court decides that it is one which is

 3   unsuitable for prosecution as a class action.

 4   (KK) Pursuant to this court‟s res judicata precedence, neither the

 5   Defendants, nor Plaintiffs, have a “judgment” for purposes of res judicata.

 6   The fatal defects of Judge Keep‟s “Judgment” renders the proceeding below

 7   “coram non judice.” “For, failing this, there was no jurisdiction.”

 8   (LL) The defective Judgment and the Defendants‟ failure to appear as

 9   compelled by the Summons, not only demonstrates the enormous prejudice

10   inflicted upon the Plaintiffs by the court below, but also the massive

11   miscarriage of justice and the defilement of the “Temple of Justice,” which

12   Judge Keep was a Trustee.

13   (MM) As a matter of right, law, equity, and justice, and in light of the

14   extreme prejudice suffered by Plaintiffs because of Judge Keep‟s judicial

15   misconduct and errors and the defendants‟ contempt, Plaintiffs are entitled

16   to the complete and immediate removal of this “judgment” from the record

17   below, and a default Judgment rendered in Plaintiffs‟ favor as a result of

18   the Defendants‟ willful and inexcusable default.

19   8. Do you have any other cases pending in this court?

20   (1) No.

21   9. Have you filed any previous cases which have been decided by this court?

22   (1) Yes. McCray v. National Labor Relations Board, Docket No. 98-56191.

23   10. N/A.

24                                               Dated this 20th day of April, 2002

25
                                                             Emanuel McCray
26                                                           Appellant, Pro Se

27

28




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