Sixth Amendment - Right To Counsel
court defendant attorney appointed
Because of the law's complexity and the often substantial deprivations that a criminal conviction can produce, the Sixth Amendment provides criminal defendants with a RIGHT TO COUNSEL. A defendant's Sixth Amendment right to counsel attaches when the government initiates adversarial criminal proceedings, whether by way of formal charge, PRELIMINARY HEARING, indictment, information, or ARRAIGNMENT (United States v. Larkin, 978 F.2d 964 [7th Cir. 1992]). Unlike the right to a speedy trial, this Sixth Amendment right does not arise at the moment of arrest unless the government has already filed formal charges (Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 [1972]). However, defendants may assert a FIFTH AMENDMENT right to consult with an attorney during CUSTODIAL INTERROGATION by the police, even though no formal charges have been brought and no arrest has been made (MIRANDA V. ARIZONA, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]).
Defendants do not enjoy a Sixth Amendment right to be represented by counsel during every phase of litigation that follows the initiation of formal adversarial proceedings by the state. Instead, defendants may only assert this right during "critical stages" of the proceedings (Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 [1985]). A critical stage of prosecution includes every instance in which the advice of counsel is necessary to ensure a defendant's right to a fair trial or in which the absence of counsel might impair the preparation or presentation of a defense (United States v. Hidalgo, 7 F.3d 1566 [11th Cir. 1993]).
Obviously, the trial is a critical stage in any criminal proceeding, as are jury selection, sentencing, and nearly every effort by the government to elicit information from the accused, including interrogation. However, courts are divided on the issue of whether the state may perform a consensual search of a defendant's premises without the advice or presence of counsel. At the same time, courts generally agree that pretrial hearings involving issues related to bail, the suppression of evidence, or the viability of the prosecution's case all qualify as critical stages of criminal proceedings (Smith v. Lockhart, 923 F.2d 1314 [8th Cir. 1991]). The U.S. Supreme Court has ruled that the denial of counsel during a critical stage amounts to an unconstitutional deprivation of a fair trial, warranting the reversal of conviction (United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 [1984]).
Courts also generally agree on a number of instances that do not constitute critical stages. For example, pretrial scientific analysis of fingerprints, blood samples, clothing, hair, handwriting, and voice samples have all been ruled to be noncritical stages (United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 [1967]). Nor is a PROBABLE CAUSE hearing sufficiently critical to trigger the right to counsel (Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 [1975]). Each of these noncritical stages has been described as a preliminary facet of criminal prosecution that is largely unassociated with the more adversarial phases invoking the right to counsel.
If a defendant cannot afford to hire an attorney, the Sixth Amendment requires that the trial judge appoint one on her behalf (GIDEON V. WAINWRIGHT, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 [1963]). In instances where an indigent defendant has some financial resources, she may be required to reimburse the government for a portion of the fees paid to the court-appointed lawyer. The Sixth Amendment right of indigent criminal defendants to receive a court-appointed lawyer applies to every case involving a felony offense and to all other cases in which the defendant is actually incarcerated for any length of time, regardless of whether the crime is categorized as a misdemeanor or petty offense (Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 [1972]).
Persons who have been convicted of crimes may not compel a court-appointed attorney to file an appeal that the attorney believes is frivolous. In Anders v. California, 368 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the U.S. Supreme Court set out a procedure that an attorney must follow to request either withdrawal from the case or to have the court dispose of the case without a full legal review. However, in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L. Ed. 2d 756 (2000) the Court ruled that its precedent was not a "straitjacket" and that states were free to come up with procedures that protected both the criminal client and his attorney.
However, if an indigent defendant is prosecuted for a non-felony offense that is punishable by a potential jail or prison sentence, the Sixth Amendment is not violated if he is denied a court-appointed attorney as long as no penalty of incarceration is actually imposed (Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 [1979]). In other words, an indigent defendant has no Sixth Amendment right to a court-appointed lawyer in a non-felony case when the only punishment he receives is a fine, the FORFEITURE of property, or some other penalty not involving incarceration. Thus, in a forfeiture proceeding where the government seized almost $300,000 from an arrested drug smuggler, the Sixth Amendment right to counsel was not infringed when the court denied the smuggler's request for a court-appointed attorney because no jail or prison sentence was ultimately imposed (United States v. $292,888.04 in U.S. Currency, 54 F.3d 564 [9th Cir. 1995]).
Nor is the Sixth Amendment right to counsel infringed when an indigent defendant is denied a court-appointed lawyer of her choice (Ford v. Israel, 701 F.2d 689 [7th Cir. 1983]). The selection of counsel to represent an indigent defendant is within the discretion of the trial court. The attorney selected need not be a great litigator, a savvy negotiator, or the best attorney available. Rather, the court-appointed lawyer must be a member in good standing of the bar who gives the client his complete and undivided loyalty, as well as a zealous and GOOD FAITH defense (United States v. Cariola, 323 F.2d 180 [3rd Cir. 1963]). The quality of representation need not be perfect but only effective and competent enough to assure the defendant due process of law (Pineda v. Bailey, 340 F.2d 162 [5th Cir. 1965]). If the attorney representing a defendant is incompetent, whether the attorney has been appointed by the court or privately retained, the Sixth Amendment right to the effective assistance of counsel has been violated.
The U.S. Supreme Court has reviewed numerous ineffective counsel claims. In Glover v. United States, 531 U.S. 198, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001), the Court allowed review based on ineffective counsel at the sentencing stage. In Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000), the Court considered whether a defense lawyer must always consult with a defendant regarding an appeal of the conviction. The Court rejected a bright-line rule that would have mandated such a consultation, ruling that each case must be analyzed using a set of standards. In death-penalty cases, the Court had been more willing to vacate convictions based on ineffective counsel. However, in Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002), the Court departed from what has come to be known as the "death is different" standard. This standard requires less hard evidence of prejudice because of ineffective counsel. The Court ruled that the convicted murderer's ineffective counsel claim must be analyzed by the "but for" test. The general rule mandates that the defendant show that "but for" the lawyer's conduct the result of the trial would have been different.
The court may replace any attorney, publicly appointed or privately retained, if that is in the best interests of the defendant. A court will normally replace an attorney who has a conflict of interest that prevents her from faithfully discharging her obligation of loyalty to the client. Courts also retain the prerogative to deny a defendant's request to substitute attorneys if the request comes too late in the proceedings, is made solely to delay the trial, or is not for a good reason. However, if a defendant demonstrates a good reason for the substitution of attorneys, such as a complete breakdown in communication between lawyer and client, the court must honor the request for substitution unless a compelling reason exists for denying it. The efficient administration of justice is one reason that has been deemed sufficiently compelling to deny such requests (United States v. D'Amore, 56 F.3d 1202 [9th Cir. 1995]).
Finally, all defendants have a Sixth Amendment right to decline the representation of counsel and proceed on their own behalf. Defendants who represent themselves are said to be proceeding pro se. However, defendants who wish to represent themselves must first make a knowing and intelligent waiver of the Sixth Amendment right to counsel before a court will allow them to do so. (Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 [1975]). Courts must ensure that the defendant appreciates the disadvantages of appearing pro se and that he understands the potential consequences. The defendant must be informed that the presentation of a defense in a criminal case is not a simple matter of telling a story, but that it requires skills in examining a witness, knowledge of the RULES OF EVIDENCE and procedure, and persuasive oratory abilities. However, the U.S. Supreme Court has declined to apply this rule pro se appeals. In Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152, 120 S.Ct. 684, 145 L. Ed. 2d 597 (2000), the Court held that Faretta did not apply and that the state appeals court could require that an attorney be appointed to conduct the criminal appeal. In so ruling, the Court made clear that the Sixth Amendment does not apply to appellate proceedings.
User Comments
6 months ago
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAYSON TURNER AND )
REPRESENTATIVE OF MINERS, ) No. 11- 71601
Petitioner(s) )
) Federal Coal Mine Safety Board
v. )
)
) Review of 105C Discrimination
) Docket # WEST 2006-568-DM
FEDERAL MINE SAFETY AND )
HEALTH REVIEW COMMISSION, )
Respondent ) JULY 18th, 2011
PETITIONER MOTIONS TO VACATE THE NINTH CIRCUITS’ DECISION TO
DISMISS PETITION FOR REVIEW #11-71601 BY WRIT OF MANDUMAS
(PURSUANT TO 18 U.S.C. §3771(d)(3)) WITH REGARDS TO FIRST AND
SECOND PETITIONER ( REPRESENTATIVE OF MINERS ) URGENTLY
REQUIRED INJUNCTIVE DECLARITORY JUDGEMENT ON THE ROLE OF THE
REPRESENTATIVE OF MINERS AGAINST GROSS FAILURE OF M.S.H.A., THE
F.M.S.H.R.C. – A.L.J. AND F.M.S.H.R.C. TO ENFORCE MINE ACT MINER
PROTECTIVE PROVISIONS; AND THAT ALL OF PRO SE PETITIONERS’
MOTIONS TO THE NINTH CIRCUIT UNDER APPEAL #11-71601 BE
EVALUATED BY THEIR MERITS (Haines v Kerner, Platsky v CIA ), DUE TO
ENDORSED DISMISSAL OF MINERS PROTECTIVE PROVISIONS.
WITH MOTION IS A JUDICIAL NOTICE
OF EQUAL PROTECTION CLAUSES OF THE UNITED STATES CONSTITUTION
FOR U.S. COURT OF APPEALS NINTH CIRCUIT.
Page 2
Based on the importance of Mine Act non-enforcement issues miners are currently
facing in the United States, it would be irresponsible of the U.S. court of appeals to allow
unnecessary delays or complete derailing of the possibility of defining and remedying
U.S. miners’ distress by allowing petition #11-71601 ( with it’s evidence of dismissal of
Mine Act protective provisions ) to slip back to waiting for a numbing final decision from
a biased lower court, that’s had charge over 105C Discrimination docket WEST 2006-
568- DM since 2006.
Commissioners Young, Cohen and Nakamra’s Conclusion , that my case be remanded
to the ALJ (on Page 22 of May 20th 2011 DECISION) was exhaustively over ridden by
Mary Jordan Chairman and Michael Duffy Commissioner on pages 23 to 31 of the May
20th 2011 DECISION. As clearly indicated in those pages, there was no hope of merits
of the case evaluation of my 105C Discrimination case. Note here that although ALJ’s
post hearing required “for the record” (transcripts) discrimination evidence of Kowalski
disciplinary records had apparently been dismissed for no good reason (Page 21, bottom
4 lines of second paragraph in the May 20th 2011 DECISION).
F.M.S.H.R.C.’s Chief Docket Officer, Jean Ellen, told Jayson Turner in one of her
rare E-mail communications to Petitioner on January 10th,2011 that:
Mr. Turner:
The Commission is currently working on the written
decision in your case. When the decision is completed
and issued, it will be sent to you directly and also made
publicly available. There is no specific time frame for
the completion of this decision. The Commission
intends to issue a final decision relatively soon.
Page 3
According to the Conclusion of Commissioner Duffy and Chairman Jordan, in
F.M.S.H.R.C.’s DECISION page 31:
“Turner has the ultimate burden of persuasion in
this case – that is, it is up to him to prove that his
discharge was motivated by protected activity.
The judge concluded that Turner’s dismissal was
not motivated by his safety complaints, and this
determination is amply supported by evidence in
the record. Accordingly, we would affirm the
judge’s decision.”,
What would be the point of another review of WEST 2006-568-DM by A.L.J. Bulluck
other than to hinder or derail higher court merits of the case review ?
Representative of Miners can serve as a Petitioner of all Miners’
interests on Appeal No. 11-71601, special conditions exist currently where Miners’
Mine Act protective provisions are being shortcutted, bypassed and dismissed because of
Caseload pressures and mining agencies unwillingness to compel Operators cooperation.
Miners need the immediate involvement of a higher court to bring in some effective
checks and balances to MSHA, ALJ and FMSHRC’s growing abandonment of Miners’
protective provisions, such as an injunctive empowerment of Representatives of Miners.
Here some good arguments for U.S. Court of Appeals Ninth Circuit not to let this case
escape your jurisdiction:
The requisite Representative of Miners role controversy is present as Representative
of Miners implies overall or general representation of Miners as the only participant
non-governmental entity named in the 1977 Mine Act. Representative of Miners’
effectual participation in representing Miners’ concerns are relegated primarily to
M.S.H.A.’s tightly restricted participation in legitimate Operator / Miner safety concerns.
Page 4
Assuming the requisite case or controversy is present,
the United States, suing under 28 U.S.C. § 1345, can
invoke the Declaratory Judgment Act to obtain a declaration
of rights or other legal relationships. See, e.g., Wyandotte
Transportation Co. v. United States, 389 U.S. 191, 201,
204 (1967); State of Wyoming v. United States, 310 F.2d
566 (10th Cir. 1962), cert. denied, 372 U.S. 953 (1963);
Universal Fiberglass Corp. v. United States, 400 F.2d 926
(8th Cir. 1968).
Under 28 U.S.C. § 1345, can invoke the Declaratory
Judgment Act to obtain a declaration of rights or other
legal relationships. See, e.g., Wyandotte Transportation
Co. v. United States, 389 U.S. 191, 201, 204 (1967);
State of Wyoming v. United States, 310 F.2d 566 (10th
Cir. 1962), cert. denied, 372 U.S. 953 (1963); Universal
Fiberglass Corp. v. United States, 400 F.2d 926 (8th
Cir. 1968).
- U.S. MINERS’ REMEDY Sought –
Dismiss F.M.S.H.R.C.’s motion to Dismiss Petitioner(s) Petition for Review and to
Defer Filing of Record, provide ProBono Program representation for realistic chance of
Improving Congress intended conditions for all Miners under the Mine Act.
Affirmative relief to U.S. Miners by way of injunction of M.S.H.A., A.L.J. and
F.M.S.H.R.C. Mine Act non- enforcement activity practices via effective empowerment
of Representative of Miners ( empowerment suggestions provided in mooted motion )
during Mandamus provisioned Declaratory Judgement.
Affirmative relief by way of injunction is sought from
time to time to advance major public interests or enforce
governmental functions. Such injunction actions may be
specifically provided for by statute. See, e.g., United
Steelworkers of America v. United States, 361 U.S. 39
(1959) (injunction under the Taft-Hartley Act). Injunction
actions may also be maintained to enforce statutes which
do not specifically provide for such a remedy. See, e.g.,
In re Debs, 158 U.S. 564 (1895); United States v. United
Mine Workers, 330 U.S. 258 (1947). Injunctive relief may
Page 5
also be sought from an appellate tribunal under the All
Writs Act, 28 U.S.C. § 1651(a). See, e.g., FTC v. Dean
Foods Co., 384 U.S. 597 (1966).
PETITION FOR WRIT OF MANDAMUS; PURSUANT TO 18 U.S.C. §
3771(d)(3).”. Exercise Mandamus to keep the case within the jurisdiction of the U.S.
Court of Appeals Ninth Circuit due to the immediate nation wide importance of
providing effective representation for all Miners in the face of growing dismissal of
their Mine Act protective provisions by M.S.H.A., the Office of A.L.J. and the
F.M.S.H.R.C. due to caseload pressure and lack of resolve to compel Operator
compliance with the Congress enacted Miners’ protective provisions found in the ACT.
LaBuy v. Howes Leather Co., 352 U.S. 249 (1957);
United States v. McGarr, 461 F.2d 1 (7th Cir. 1972).
The All Writs Act, 28 U.S.C. § 1651(a), confers the
power of mandamus on federal appellate courts power.
See Schlagenhauf v. Holder, 379 U.S. 104 (1964).
Mandamus may be LaBuy v. Howes Leather Co., supra.
Mandamus may be appropriately issued to confine an
inferior court to a lawful exercise of prescribed
jurisdiction, or when there is an usurpation of judicial
employed to require a lower court to enforce the
judgment of an appellate court, or to keep such a court
from interposing unauthorized obstructions to the
enforcement of the judgment of a higher court. See
United States v. District Court, 334 U.S. 258, 263 (1948)
(to enforce obedience to court of appeals mandate).
I leave room for Intervenor or Pro Bono Program representation in all of my Motions
before the U.S. Court of Appeals Ninth Circuit Appeal No. 11-71601 and I officially
request that extra time be provided for that representation to occur in Petitioners’
Responses to F.M.S.H.R.C.’s Motions and for Brief filings (if Appeal reinstated).
Page 6
- Miner’s Remedy sought –
Standard compensations for lost income, lost benefit values, personal damages
during over five years displacement. Plus punitive damages under the False Claims Act
for Operator misrepresentations in 105C Discrimination Docket No. WEST 2006-568-
DM for Jayson Turner and M.S.H.A. ( to discourage Operator non-compliance with Mine
Act miner protective provisions and bring potential remedy for Miners to realistic level).
It’s important to bring to light for correction, the endorsed dismissal of Congress
enacted Miners’ protective provisions by those Agencies charged with their enforcement.
Petitioner(s) requests that with Ninth Circuit’s retrieval of Petition #11-71601,
that records AND motion responses submissions deadlines be extended forty five days
and that a twelve week extension of briefs submission deadlines be approved by the court
for all parties pertaining to Appeal No. 11-71601.
Due to litigious complexity, pro se Appellant requests a minimum of 14 days notice
before the first motion response deadline occurs and requests service of the Courts
decision specifically pertaining to Appellants’ requested extensions; 45 day extension for
all records and motion responses submissions and 12 weeks extension for all briefs.
There is an immediate possibility of bringing sorely needed injunctive relief to all
U.S. Miners through this case. Pro se litigants are entitled to the opportunity to submit
evidence in support of their claims and have the evidence properly evaluated
“…appellate consideration on the merits.”Evitts v. Lucey,
469 U.S. 387, 393 (1985) (citation omitted)”.
Picking v. Pennsylvania Railway , (151 F2d. 240) Third
Circuit Court of Appeals. In Picking , the plaintiffs civil
rights was 150 pages and described by a federal judge as
"inept." Nevertheless, it was held:
Page 7
Where a plaintiff pleads pro-se in a suit for protection of
civil rights, the court should endeavor to construe
plaintiffs pleading without regard to technicalities.
In Walter Process Equipment v. Food Machinery 382 U.S.
172 (1965) it was held that in a "motion to dismiss, the
material allegations of the complaint are taken as admitted."
From this vantage point, courts are reluctant to dismiss
complaints unless it appears the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief (see Conlev vs. Gibson , 355 U.S. 41(1957).
In Puckett v. Cox , it was held that a pro-se complaint
requires a less stringent reading than one drafted by a
lawyer (456 F2d 233 (1972 Sixth Circuit USCA) said
Justice Black in Conley v. Gibson . 355 U.S. 41 at
48(1957) "The Federal Rules rejects the approach that
pleading is a game of skill in which one misstep by
counsel may be decisive to the outcome and accept the
principle that the purpose of pleading is to facilitate a
proper decision on the merits." According to rule 8(f)
FRCP all pleadings shall be construed to do substantial
justice."
JUDICIAL NOTICE
All officers of the U.S. Court of Appeals Ninth Circuit are hereby placed on notice
under authority of the supremacy and equal protection clauses of the United States
Constitution and the common law authorities of Haines v Kerner, 404 U.S. 519, Platsky
v. C.I.A. 953 F.2d. 25, and Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000)
relying on Willy v. Coastal Corp., 503 U.S. 131, 135 (1992), “United States v.
International Business Machines Corp., 517 U.S. 843, 856 (1996), quoting Payne v.
Tennessee, 501 U.S. 808, 842 (1991) (Souter, J., concurring). Trinsey v. Pagliaro, D.C.
Pa. 1964, 229 F. Supp. 647, American Red Cross v. Community Blood Center of the
Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001). In re Haines: pro se litigants (Defendant is a
pro se litigant) are held to less stringent pleading standards than BAR registered
Page 8
attorneys. Regardless of the deficiencies in their pleadings, pro se litigants are entitled to
the opportunity to submit evidence in support of their claims. In re Platsky: court errs if
court dismisses the pro se litigant (Defendant is a pro se litigant) without instruction of
how pleadings are deficient and how to repair pleadings. In re Anastasoff: litigants’
constitutional rights are violated when courts depart from precedent where parties are
similarly situated. All litigants have a constitutional right to have their claims adjudicated
according the rule of precedent. See Anastasoff v. United States, 223 F.3d 898 (8th Cir.
2000). Statements of counsel, in their briefs or their arguments are not sufficient for a
motion to dismiss or for summary judgment, Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F.
Supp. 647.
If the U.S. court of appeals Ninth Circuit decides to uphold it’s dismissal of
Appeal No. 11-71601, please reissue the Order with language that will promote a swift
final decision by F.M.S.H.R.C. and that injunctive relief can still be sought for the 2nd
petitioner ( Representative of Miners ) through merit of the case review, regardless of the
F.M.S.H.R.C.’s final decision on 105C Discrimination docket WEST 2006-568-DM.
There are no new issues being raised in this motion. Merit of the case review of all
official documents related to this 105C Discrimination case will substantiate my claims.
- All the preceding is true to the best of my knowledge. -
Respectfully submitted to Office of the Clerk U.S. Court of Appeals Ninth Circuit
Jayson Turner, and Representative of Miners, signed __________________________
Docket WEST 2006-568-DM
P.O. Box “C”, Pine Mountain, CA 93222 Phone (661) 242-3000
CC to all parties in of U.S. Court of Appeals Ninth Circuit Appeal No. 11-71601
6 months ago
COAppeals 9th Circuit short circuited.
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAYSON TURNER AND )
REPRESENTATIVE OF MINERS, ) No. 11- 71601
Petitioner(s) )
) Federal Coal Mine Safety Board
v. )
)
) Review of 105C Discrimination
) Docket # WEST 2006-568-DM
FEDERAL MINE SAFETY AND )
HEALTH REVIEW COMMISSION, )
Respondent ) JULY 18th, 2011
PETITIONER MOTIONS TO VACATE THE NINTH CIRCUITS’ DECISION TO
DISMISS PETITION FOR REVIEW #11-71601 BY WRIT OF MANDUMAS
(PURSUANT TO 18 U.S.C. §3771(d)(3)) WITH REGARDS TO FIRST AND
SECOND PETITIONER ( REPRESENTATIVE OF MINERS ) URGENTLY
REQUIRED INJUNCTIVE DECLARITORY JUDGEMENT ON THE ROLE OF THE
REPRESENTATIVE OF MINERS AGAINST GROSS FAILURE OF M.S.H.A., THE
F.M.S.H.R.C. – A.L.J. AND F.M.S.H.R.C. TO ENFORCE MINE ACT MINER
PROTECTIVE PROVISIONS; AND THAT ALL OF PRO SE PETITIONERS’
MOTIONS TO THE NINTH CIRCUIT UNDER APPEAL #11-71601 BE
EVALUATED BY THEIR MERITS (Haines v Kerner, Platsky v CIA ), DUE TO
ENDORSED DISMISSAL OF MINERS PROTECTIVE PROVISIONS.
WITH MOTION IS A JUDICIAL NOTICE
OF EQUAL PROTECTION CLAUSES OF THE UNITED STATES CONSTITUTION
FOR U.S. COURT OF APPEALS NINTH CIRCUIT.
Page 2
Based on the importance of Mine Act non-enforcement issues miners are currently
facing in the United States, it would be irresponsible of the U.S. court of appeals to allow
unnecessary delays or complete derailing of the possibility of defining and remedying
U.S. miners’ distress by allowing petition #11-71601 ( with it’s evidence of dismissal of
Mine Act protective provisions ) to slip back to waiting for a numbing final decision from
a biased lower court, that’s had charge over 105C Discrimination docket WEST 2006-
568- DM since 2006.
Commissioners Young, Cohen and Nakamra’s Conclusion , that my case be remanded
to the ALJ (on Page 22 of May 20th 2011 DECISION) was exhaustively over ridden by
Mary Jordan Chairman and Michael Duffy Commissioner on pages 23 to 31 of the May
20th 2011 DECISION. As clearly indicated in those pages, there was no hope of merits
of the case evaluation of my 105C Discrimination case. Note here that although ALJ’s
post hearing required “for the record” (transcripts) discrimination evidence of Kowalski
disciplinary records had apparently been dismissed for no good reason (Page 21, bottom
4 lines of second paragraph in the May 20th 2011 DECISION).
F.M.S.H.R.C.’s Chief Docket Officer, Jean Ellen, told Jayson Turner in one of her
rare E-mail communications to Petitioner on January 10th,2011 that:
Mr. Turner:
The Commission is currently working on the written
decision in your case. When the decision is completed
and issued, it will be sent to you directly and also made
publicly available. There is no specific time frame for
the completion of this decision. The Commission
intends to issue a final decision relatively soon.
Page 3
According to the Conclusion of Commissioner Duffy and Chairman Jordan, in
F.M.S.H.R.C.’s DECISION page 31:
“Turner has the ultimate burden of persuasion in
this case – that is, it is up to him to prove that his
discharge was motivated by protected activity.
The judge concluded that Turner’s dismissal was
not motivated by his safety complaints, and this
determination is amply supported by evidence in
the record. Accordingly, we would affirm the
judge’s decision.”,
What would be the point of another review of WEST 2006-568-DM by A.L.J. Bulluck
other than to hinder or derail higher court merits of the case review ?
Representative of Miners can serve as a Petitioner of all Miners’
interests on Appeal No. 11-71601, special conditions exist currently where Miners’
Mine Act protective provisions are being shortcutted, bypassed and dismissed because of
Caseload pressures and mining agencies unwillingness to compel Operators cooperation.
Miners need the immediate involvement of a higher court to bring in some effective
checks and balances to MSHA, ALJ and FMSHRC’s growing abandonment of Miners’
protective provisions, such as an injunctive empowerment of Representatives of Miners.
Here some good arguments for U.S. Court of Appeals Ninth Circuit not to let this case
escape your jurisdiction:
The requisite Representative of Miners role controversy is present as Representative
of Miners implies overall or general representation of Miners as the only participant
non-governmental entity named in the 1977 Mine Act. Representative of Miners’
effectual participation in representing Miners’ concerns are relegated primarily to
M.S.H.A.’s tightly restricted participation in legitimate Operator / Miner safety concerns.
Page 4
Assuming the requisite case or controversy is present,
the United States, suing under 28 U.S.C. § 1345, can
invoke the Declaratory Judgment Act to obtain a declaration
of rights or other legal relationships. See, e.g., Wyandotte
Transportation Co. v. United States, 389 U.S. 191, 201,
204 (1967); State of Wyoming v. United States, 310 F.2d
566 (10th Cir. 1962), cert. denied, 372 U.S. 953 (1963);
Universal Fiberglass Corp. v. United States, 400 F.2d 926
(8th Cir. 1968).
Under 28 U.S.C. § 1345, can invoke the Declaratory
Judgment Act to obtain a declaration of rights or other
legal relationships. See, e.g., Wyandotte Transportation
Co. v. United States, 389 U.S. 191, 201, 204 (1967);
State of Wyoming v. United States, 310 F.2d 566 (10th
Cir. 1962), cert. denied, 372 U.S. 953 (1963); Universal
Fiberglass Corp. v. United States, 400 F.2d 926 (8th
Cir. 1968).
- U.S. MINERS’ REMEDY Sought –
Dismiss F.M.S.H.R.C.’s motion to Dismiss Petitioner(s) Petition for Review and to
Defer Filing of Record, provide ProBono Program representation for realistic chance of
Improving Congress intended conditions for all Miners under the Mine Act.
Affirmative relief to U.S. Miners by way of injunction of M.S.H.A., A.L.J. and
F.M.S.H.R.C. Mine Act non- enforcement activity practices via effective empowerment
of Representative of Miners ( empowerment suggestions provided in mooted motion )
during Mandamus provisioned Declaratory Judgement.
Affirmative relief by way of injunction is sought from
time to time to advance major public interests or enforce
governmental functions. Such injunction actions may be
specifically provided for by statute. See, e.g., United
Steelworkers of America v. United States, 361 U.S. 39
(1959) (injunction under the Taft-Hartley Act). Injunction
actions may also be maintained to enforce statutes which
do not specifically provide for such a remedy. See, e.g.,
In re Debs, 158 U.S. 564 (1895); United States v. United
Mine Workers, 330 U.S. 258 (1947). Injunctive relief may
Page 5
also be sought from an appellate tribunal under the All
Writs Act, 28 U.S.C. § 1651(a). See, e.g., FTC v. Dean
Foods Co., 384 U.S. 597 (1966).
PETITION FOR WRIT OF MANDAMUS; PURSUANT TO 18 U.S.C. §
3771(d)(3).”. Exercise Mandamus to keep the case within the jurisdiction of the U.S.
Court of Appeals Ninth Circuit due to the immediate nation wide importance of
providing effective representation for all Miners in the face of growing dismissal of
their Mine Act protective provisions by M.S.H.A., the Office of A.L.J. and the
F.M.S.H.R.C. due to caseload pressure and lack of resolve to compel Operator
compliance with the Congress enacted Miners’ protective provisions found in the ACT.
LaBuy v. Howes Leather Co., 352 U.S. 249 (1957);
United States v. McGarr, 461 F.2d 1 (7th Cir. 1972).
The All Writs Act, 28 U.S.C. § 1651(a), confers the
power of mandamus on federal appellate courts power.
See Schlagenhauf v. Holder, 379 U.S. 104 (1964).
Mandamus may be LaBuy v. Howes Leather Co., supra.
Mandamus may be appropriately issued to confine an
inferior court to a lawful exercise of prescribed
jurisdiction, or when there is an usurpation of judicial
employed to require a lower court to enforce the
judgment of an appellate court, or to keep such a court
from interposing unauthorized obstructions to the
enforcement of the judgment of a higher court. See
United States v. District Court, 334 U.S. 258, 263 (1948)
(to enforce obedience to court of appeals mandate).
I leave room for Intervenor or Pro Bono Program representation in all of my Motions
before the U.S. Court of Appeals Ninth Circuit Appeal No. 11-71601 and I officially
request that extra time be provided for that representation to occur in Petitioners’
Responses to F.M.S.H.R.C.’s Motions and for Brief filings (if Appeal reinstated).
Page 6
- Miner’s Remedy sought –
Standard compensations for lost income, lost benefit values, personal damages
during over five years displacement. Plus punitive damages under the False Claims Act
for Operator misrepresentations in 105C Discrimination Docket No. WEST 2006-568-
DM for Jayson Turner and M.S.H.A. ( to discourage Operator non-compliance with Mine
Act miner protective provisions and bring potential remedy for Miners to realistic level).
It’s important to bring to light for correction, the endorsed dismissal of Congress
enacted Miners’ protective provisions by those Agencies charged with their enforcement.
Petitioner(s) requests that with Ninth Circuit’s retrieval of Petition #11-71601,
that records AND motion responses submissions deadlines be extended forty five days
and that a twelve week extension of briefs submission deadlines be approved by the court
for all parties pertaining to Appeal No. 11-71601.
Due to litigious complexity, pro se Appellant requests a minimum of 14 days notice
before the first motion response deadline occurs and requests service of the Courts
decision specifically pertaining to Appellants’ requested extensions; 45 day extension for
all records and motion responses submissions and 12 weeks extension for all briefs.
There is an immediate possibility of bringing sorely needed injunctive relief to all
U.S. Miners through this case. Pro se litigants are entitled to the opportunity to submit
evidence in support of their claims and have the evidence properly evaluated
“…appellate consideration on the merits.”Evitts v. Lucey,
469 U.S. 387, 393 (1985) (citation omitted)”.
Picking v. Pennsylvania Railway , (151 F2d. 240) Third
Circuit Court of Appeals. In Picking , the plaintiffs civil
rights was 150 pages and described by a federal judge as
"inept." Nevertheless, it was held:
Page 7
Where a plaintiff pleads pro-se in a suit for protection of
civil rights, the court should endeavor to construe
plaintiffs pleading without regard to technicalities.
In Walter Process Equipment v. Food Machinery 382 U.S.
172 (1965) it was held that in a "motion to dismiss, the
material allegations of the complaint are taken as admitted."
From this vantage point, courts are reluctant to dismiss
complaints unless it appears the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief (see Conlev vs. Gibson , 355 U.S. 41(1957).
In Puckett v. Cox , it was held that a pro-se complaint
requires a less stringent reading than one drafted by a
lawyer (456 F2d 233 (1972 Sixth Circuit USCA) said
Justice Black in Conley v. Gibson . 355 U.S. 41 at
48(1957) "The Federal Rules rejects the approach that
pleading is a game of skill in which one misstep by
counsel may be decisive to the outcome and accept the
principle that the purpose of pleading is to facilitate a
proper decision on the merits." According to rule 8(f)
FRCP all pleadings shall be construed to do substantial
justice."
JUDICIAL NOTICE
All officers of the U.S. Court of Appeals Ninth Circuit are hereby placed on notice
under authority of the supremacy and equal protection clauses of the United States
Constitution and the common law authorities of Haines v Kerner, 404 U.S. 519, Platsky
v. C.I.A. 953 F.2d. 25, and Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000)
relying on Willy v. Coastal Corp., 503 U.S. 131, 135 (1992), “United States v.
International Business Machines Corp., 517 U.S. 843, 856 (1996), quoting Payne v.
Tennessee, 501 U.S. 808, 842 (1991) (Souter, J., concurring). Trinsey v. Pagliaro, D.C.
Pa. 1964, 229 F. Supp. 647, American Red Cross v. Community Blood Center of the
Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001). In re Haines: pro se litigants (Defendant is a
pro se litigant) are held to less stringent pleading standards than BAR registered
Page 8
attorneys. Regardless of the deficiencies in their pleadings, pro se litigants are entitled to
the opportunity to submit evidence in support of their claims. In re Platsky: court errs if
court dismisses the pro se litigant (Defendant is a pro se litigant) without instruction of
how pleadings are deficient and how to repair pleadings. In re Anastasoff: litigants’
constitutional rights are violated when courts depart from precedent where parties are
similarly situated. All litigants have a constitutional right to have their claims adjudicated
according the rule of precedent. See Anastasoff v. United States, 223 F.3d 898 (8th Cir.
2000). Statements of counsel, in their briefs or their arguments are not sufficient for a
motion to dismiss or for summary judgment, Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F.
Supp. 647.
If the U.S. court of appeals Ninth Circuit decides to uphold it’s dismissal of
Appeal No. 11-71601, please reissue the Order with language that will promote a swift
final decision by F.M.S.H.R.C. and that injunctive relief can still be sought for the 2nd
petitioner ( Representative of Miners ) through merit of the case review, regardless of the
F.M.S.H.R.C.’s final decision on 105C Discrimination docket WEST 2006-568-DM.
There are no new issues being raised in this motion. Merit of the case review of all
official documents related to this 105C Discrimination case will substantiate my claims.
- All the preceding is true to the best of my knowledge. -
Respectfully submitted to Office of the Clerk U.S. Court of Appeals Ninth Circuit
Jayson Turner, and Representative of Miners, signed __________________________
Docket WEST 2006-568-DM
P.O. Box “C”, Pine Mountain, CA 93222 Phone (661) 242-3000
CC to all parties in of U.S. Court of Appeals Ninth Circuit Appeal No. 11-71601
***********************************
as of 3-19-11 No Reply from U.S. COAppeals 9th Circuit
6 months ago
COAppeals 9th Circuit short circuited.
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAYSON TURNER AND )
REPRESENTATIVE OF MINERS, ) No. 11- 71601
Petitioner(s) )
) Federal Coal Mine Safety Board
v. )
)
) Review of 105C Discrimination
) Docket # WEST 2006-568-DM
FEDERAL MINE SAFETY AND )
HEALTH REVIEW COMMISSION, )
Respondent ) JULY 18th, 2011
PETITIONER MOTIONS TO VACATE THE NINTH CIRCUITS’ DECISION TO
DISMISS PETITION FOR REVIEW #11-71601 BY WRIT OF MANDUMAS
(PURSUANT TO 18 U.S.C. §3771(d)(3)) WITH REGARDS TO FIRST AND
SECOND PETITIONER ( REPRESENTATIVE OF MINERS ) URGENTLY
REQUIRED INJUNCTIVE DECLARITORY JUDGEMENT ON THE ROLE OF THE
REPRESENTATIVE OF MINERS AGAINST GROSS FAILURE OF M.S.H.A., THE
F.M.S.H.R.C. – A.L.J. AND F.M.S.H.R.C. TO ENFORCE MINE ACT MINER
PROTECTIVE PROVISIONS; AND THAT ALL OF PRO SE PETITIONERS’
MOTIONS TO THE NINTH CIRCUIT UNDER APPEAL #11-71601 BE
EVALUATED BY THEIR MERITS (Haines v Kerner, Platsky v CIA ), DUE TO
ENDORSED DISMISSAL OF MINERS PROTECTIVE PROVISIONS.
WITH MOTION IS A JUDICIAL NOTICE
OF EQUAL PROTECTION CLAUSES OF THE UNITED STATES CONSTITUTION
FOR U.S. COURT OF APPEALS NINTH CIRCUIT.
Page 2
Based on the importance of Mine Act non-enforcement issues miners are currently
facing in the United States, it would be irresponsible of the U.S. court of appeals to allow
unnecessary delays or complete derailing of the possibility of defining and remedying
U.S. miners’ distress by allowing petition #11-71601 ( with it’s evidence of dismissal of
Mine Act protective provisions ) to slip back to waiting for a numbing final decision from
a biased lower court, that’s had charge over 105C Discrimination docket WEST 2006-
568- DM since 2006.
Commissioners Young, Cohen and Nakamra’s Conclusion , that my case be remanded
to the ALJ (on Page 22 of May 20th 2011 DECISION) was exhaustively over ridden by
Mary Jordan Chairman and Michael Duffy Commissioner on pages 23 to 31 of the May
20th 2011 DECISION. As clearly indicated in those pages, there was no hope of merits
of the case evaluation of my 105C Discrimination case. Note here that although ALJ’s
post hearing required “for the record” (transcripts) discrimination evidence of Kowalski
disciplinary records had apparently been dismissed for no good reason (Page 21, bottom
4 lines of second paragraph in the May 20th 2011 DECISION).
F.M.S.H.R.C.’s Chief Docket Officer, Jean Ellen, told Jayson Turner in one of her
rare E-mail communications to Petitioner on January 10th,2011 that:
Mr. Turner:
The Commission is currently working on the written
decision in your case. When the decision is completed
and issued, it will be sent to you directly and also made
publicly available. There is no specific time frame for
the completion of this decision. The Commission
intends to issue a final decision relatively soon.
Page 3
According to the Conclusion of Commissioner Duffy and Chairman Jordan, in
F.M.S.H.R.C.’s DECISION page 31:
“Turner has the ultimate burden of persuasion in
this case – that is, it is up to him to prove that his
discharge was motivated by protected activity.
The judge concluded that Turner’s dismissal was
not motivated by his safety complaints, and this
determination is amply supported by evidence in
the record. Accordingly, we would affirm the
judge’s decision.”,
What would be the point of another review of WEST 2006-568-DM by A.L.J. Bulluck
other than to hinder or derail higher court merits of the case review ?
Representative of Miners can serve as a Petitioner of all Miners’
interests on Appeal No. 11-71601, special conditions exist currently where Miners’
Mine Act protective provisions are being shortcutted, bypassed and dismissed because of
Caseload pressures and mining agencies unwillingness to compel Operators cooperation.
Miners need the immediate involvement of a higher court to bring in some effective
checks and balances to MSHA, ALJ and FMSHRC’s growing abandonment of Miners’
protective provisions, such as an injunctive empowerment of Representatives of Miners.
Here some good arguments for U.S. Court of Appeals Ninth Circuit not to let this case
escape your jurisdiction:
The requisite Representative of Miners role controversy is present as Representative
of Miners implies overall or general representation of Miners as the only participant
non-governmental entity named in the 1977 Mine Act. Representative of Miners’
effectual participation in representing Miners’ concerns are relegated primarily to
M.S.H.A.’s tightly restricted participation in legitimate Operator / Miner safety concerns.
Page 4
Assuming the requisite case or controversy is present,
the United States, suing under 28 U.S.C. § 1345, can
invoke the Declaratory Judgment Act to obtain a declaration
of rights or other legal relationships. See, e.g., Wyandotte
Transportation Co. v. United States, 389 U.S. 191, 201,
204 (1967); State of Wyoming v. United States, 310 F.2d
566 (10th Cir. 1962), cert. denied, 372 U.S. 953 (1963);
Universal Fiberglass Corp. v. United States, 400 F.2d 926
(8th Cir. 1968).
Under 28 U.S.C. § 1345, can invoke the Declaratory
Judgment Act to obtain a declaration of rights or other
legal relationships. See, e.g., Wyandotte Transportation
Co. v. United States, 389 U.S. 191, 201, 204 (1967);
State of Wyoming v. United States, 310 F.2d 566 (10th
Cir. 1962), cert. denied, 372 U.S. 953 (1963); Universal
Fiberglass Corp. v. United States, 400 F.2d 926 (8th
Cir. 1968).
- U.S. MINERS’ REMEDY Sought –
Dismiss F.M.S.H.R.C.’s motion to Dismiss Petitioner(s) Petition for Review and to
Defer Filing of Record, provide ProBono Program representation for realistic chance of
Improving Congress intended conditions for all Miners under the Mine Act.
Affirmative relief to U.S. Miners by way of injunction of M.S.H.A., A.L.J. and
F.M.S.H.R.C. Mine Act non- enforcement activity practices via effective empowerment
of Representative of Miners ( empowerment suggestions provided in mooted motion )
during Mandamus provisioned Declaratory Judgement.
Affirmative relief by way of injunction is sought from
time to time to advance major public interests or enforce
governmental functions. Such injunction actions may be
specifically provided for by statute. See, e.g., United
Steelworkers of America v. United States, 361 U.S. 39
(1959) (injunction under the Taft-Hartley Act). Injunction
actions may also be maintained to enforce statutes which
do not specifically provide for such a remedy. See, e.g.,
In re Debs, 158 U.S. 564 (1895); United States v. United
Mine Workers, 330 U.S. 258 (1947). Injunctive relief may
Page 5
also be sought from an appellate tribunal under the All
Writs Act, 28 U.S.C. § 1651(a). See, e.g., FTC v. Dean
Foods Co., 384 U.S. 597 (1966).
PETITION FOR WRIT OF MANDAMUS; PURSUANT TO 18 U.S.C. §
3771(d)(3).”. Exercise Mandamus to keep the case within the jurisdiction of the U.S.
Court of Appeals Ninth Circuit due to the immediate nation wide importance of
providing effective representation for all Miners in the face of growing dismissal of
their Mine Act protective provisions by M.S.H.A., the Office of A.L.J. and the
F.M.S.H.R.C. due to caseload pressure and lack of resolve to compel Operator
compliance with the Congress enacted Miners’ protective provisions found in the ACT.
LaBuy v. Howes Leather Co., 352 U.S. 249 (1957);
United States v. McGarr, 461 F.2d 1 (7th Cir. 1972).
The All Writs Act, 28 U.S.C. § 1651(a), confers the
power of mandamus on federal appellate courts power.
See Schlagenhauf v. Holder, 379 U.S. 104 (1964).
Mandamus may be LaBuy v. Howes Leather Co., supra.
Mandamus may be appropriately issued to confine an
inferior court to a lawful exercise of prescribed
jurisdiction, or when there is an usurpation of judicial
employed to require a lower court to enforce the
judgment of an appellate court, or to keep such a court
from interposing unauthorized obstructions to the
enforcement of the judgment of a higher court. See
United States v. District Court, 334 U.S. 258, 263 (1948)
(to enforce obedience to court of appeals mandate).
I leave room for Intervenor or Pro Bono Program representation in all of my Motions
before the U.S. Court of Appeals Ninth Circuit Appeal No. 11-71601 and I officially
request that extra time be provided for that representation to occur in Petitioners’
Responses to F.M.S.H.R.C.’s Motions and for Brief filings (if Appeal reinstated).
Page 6
- Miner’s Remedy sought –
Standard compensations for lost income, lost benefit values, personal damages
during over five years displacement. Plus punitive damages under the False Claims Act
for Operator misrepresentations in 105C Discrimination Docket No. WEST 2006-568-
DM for Jayson Turner and M.S.H.A. ( to discourage Operator non-compliance with Mine
Act miner protective provisions and bring potential remedy for Miners to realistic level).
It’s important to bring to light for correction, the endorsed dismissal of Congress
enacted Miners’ protective provisions by those Agencies charged with their enforcement.
Petitioner(s) requests that with Ninth Circuit’s retrieval of Petition #11-71601,
that records AND motion responses submissions deadlines be extended forty five days
and that a twelve week extension of briefs submission deadlines be approved by the court
for all parties pertaining to Appeal No. 11-71601.
Due to litigious complexity, pro se Appellant requests a minimum of 14 days notice
before the first motion response deadline occurs and requests service of the Courts
decision specifically pertaining to Appellants’ requested extensions; 45 day extension for
all records and motion responses submissions and 12 weeks extension for all briefs.
There is an immediate possibility of bringing sorely needed injunctive relief to all
U.S. Miners through this case. Pro se litigants are entitled to the opportunity to submit
evidence in support of their claims and have the evidence properly evaluated
“…appellate consideration on the merits.”Evitts v. Lucey,
469 U.S. 387, 393 (1985) (citation omitted)”.
Picking v. Pennsylvania Railway , (151 F2d. 240) Third
Circuit Court of Appeals. In Picking , the plaintiffs civil
rights was 150 pages and described by a federal judge as
"inept." Nevertheless, it was held:
Page 7
Where a plaintiff pleads pro-se in a suit for protection of
civil rights, the court should endeavor to construe
plaintiffs pleading without regard to technicalities.
In Walter Process Equipment v. Food Machinery 382 U.S.
172 (1965) it was held that in a "motion to dismiss, the
material allegations of the complaint are taken as admitted."
From this vantage point, courts are reluctant to dismiss
complaints unless it appears the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief (see Conlev vs. Gibson , 355 U.S. 41(1957).
In Puckett v. Cox , it was held that a pro-se complaint
requires a less stringent reading than one drafted by a
lawyer (456 F2d 233 (1972 Sixth Circuit USCA) said
Justice Black in Conley v. Gibson . 355 U.S. 41 at
48(1957) "The Federal Rules rejects the approach that
pleading is a game of skill in which one misstep by
counsel may be decisive to the outcome and accept the
principle that the purpose of pleading is to facilitate a
proper decision on the merits." According to rule 8(f)
FRCP all pleadings shall be construed to do substantial
justice."
JUDICIAL NOTICE
All officers of the U.S. Court of Appeals Ninth Circuit are hereby placed on notice
under authority of the supremacy and equal protection clauses of the United States
Constitution and the common law authorities of Haines v Kerner, 404 U.S. 519, Platsky
v. C.I.A. 953 F.2d. 25, and Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000)
relying on Willy v. Coastal Corp., 503 U.S. 131, 135 (1992), “United States v.
International Business Machines Corp., 517 U.S. 843, 856 (1996), quoting Payne v.
Tennessee, 501 U.S. 808, 842 (1991) (Souter, J., concurring). Trinsey v. Pagliaro, D.C.
Pa. 1964, 229 F. Supp. 647, American Red Cross v. Community Blood Center of the
Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001). In re Haines: pro se litigants (Defendant is a
pro se litigant) are held to less stringent pleading standards than BAR registered
Page 8
attorneys. Regardless of the deficiencies in their pleadings, pro se litigants are entitled to
the opportunity to submit evidence in support of their claims. In re Platsky: court errs if
court dismisses the pro se litigant (Defendant is a pro se litigant) without instruction of
how pleadings are deficient and how to repair pleadings. In re Anastasoff: litigants’
constitutional rights are violated when courts depart from precedent where parties are
similarly situated. All litigants have a constitutional right to have their claims adjudicated
according the rule of precedent. See Anastasoff v. United States, 223 F.3d 898 (8th Cir.
2000). Statements of counsel, in their briefs or their arguments are not sufficient for a
motion to dismiss or for summary judgment, Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F.
Supp. 647.
If the U.S. court of appeals Ninth Circuit decides to uphold it’s dismissal of
Appeal No. 11-71601, please reissue the Order with language that will promote a swift
final decision by F.M.S.H.R.C. and that injunctive relief can still be sought for the 2nd
petitioner ( Representative of Miners ) through merit of the case review, regardless of the
F.M.S.H.R.C.’s final decision on 105C Discrimination docket WEST 2006-568-DM.
There are no new issues being raised in this motion. Merit of the case review of all
official documents related to this 105C Discrimination case will substantiate my claims.
- All the preceding is true to the best of my knowledge. -
Respectfully submitted to Office of the Clerk U.S. Court of Appeals Ninth Circuit
Jayson Turner, and Representative of Miners, signed __________________________
Docket WEST 2006-568-DM
P.O. Box “C”, Pine Mountain, CA 93222 Phone (661) 242-3000
CC to all parties in of U.S. Court of Appeals Ninth Circuit Appeal No. 11-71601
***********************************
as of 3-19-11 No Reply from U.S. COAppeals 9th Circuit
6 months ago
COAppeals 9th Circuit short circuited.
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAYSON TURNER AND )
REPRESENTATIVE OF MINERS, ) No. 11- 71601
Petitioner(s) )
) Federal Coal Mine Safety Board
v. )
)
) Review of 105C Discrimination
) Docket # WEST 2006-568-DM
FEDERAL MINE SAFETY AND )
HEALTH REVIEW COMMISSION, )
Respondent ) JULY 18th, 2011
PETITIONER MOTIONS TO VACATE THE NINTH CIRCUITS’ DECISION TO
DISMISS PETITION FOR REVIEW #11-71601 BY WRIT OF MANDUMAS
(PURSUANT TO 18 U.S.C. §3771(d)(3)) WITH REGARDS TO FIRST AND
SECOND PETITIONER ( REPRESENTATIVE OF MINERS ) URGENTLY
REQUIRED INJUNCTIVE DECLARITORY JUDGEMENT ON THE ROLE OF THE
REPRESENTATIVE OF MINERS AGAINST GROSS FAILURE OF M.S.H.A., THE
F.M.S.H.R.C. – A.L.J. AND F.M.S.H.R.C. TO ENFORCE MINE ACT MINER
PROTECTIVE PROVISIONS; AND THAT ALL OF PRO SE PETITIONERS’
MOTIONS TO THE NINTH CIRCUIT UNDER APPEAL #11-71601 BE
EVALUATED BY THEIR MERITS (Haines v Kerner, Platsky v CIA ), DUE TO
ENDORSED DISMISSAL OF MINERS PROTECTIVE PROVISIONS.
WITH MOTION IS A JUDICIAL NOTICE
OF EQUAL PROTECTION CLAUSES OF THE UNITED STATES CONSTITUTION
FOR U.S. COURT OF APPEALS NINTH CIRCUIT.
Page 2
Based on the importance of Mine Act non-enforcement issues miners are currently
facing in the United States, it would be irresponsible of the U.S. court of appeals to allow
unnecessary delays or complete derailing of the possibility of defining and remedying
U.S. miners’ distress by allowing petition #11-71601 ( with it’s evidence of dismissal of
Mine Act protective provisions ) to slip back to waiting for a numbing final decision from
a biased lower court, that’s had charge over 105C Discrimination docket WEST 2006-
568- DM since 2006.
Commissioners Young, Cohen and Nakamra’s Conclusion , that my case be remanded
to the ALJ (on Page 22 of May 20th 2011 DECISION) was exhaustively over ridden by
Mary Jordan Chairman and Michael Duffy Commissioner on pages 23 to 31 of the May
20th 2011 DECISION. As clearly indicated in those pages, there was no hope of merits
of the case evaluation of my 105C Discrimination case. Note here that although ALJ’s
post hearing required “for the record” (transcripts) discrimination evidence of Kowalski
disciplinary records had apparently been dismissed for no good reason (Page 21, bottom
4 lines of second paragraph in the May 20th 2011 DECISION).
F.M.S.H.R.C.’s Chief Docket Officer, Jean Ellen, told Jayson Turner in one of her
rare E-mail communications to Petitioner on January 10th,2011 that:
Mr. Turner:
The Commission is currently working on the written
decision in your case. When the decision is completed
and issued, it will be sent to you directly and also made
publicly available. There is no specific time frame for
the completion of this decision. The Commission
intends to issue a final decision relatively soon.
Page 3
According to the Conclusion of Commissioner Duffy and Chairman Jordan, in
F.M.S.H.R.C.’s DECISION page 31:
“Turner has the ultimate burden of persuasion in
this case – that is, it is up to him to prove that his
discharge was motivated by protected activity.
The judge concluded that Turner’s dismissal was
not motivated by his safety complaints, and this
determination is amply supported by evidence in
the record. Accordingly, we would affirm the
judge’s decision.”,
What would be the point of another review of WEST 2006-568-DM by A.L.J. Bulluck
other than to hinder or derail higher court merits of the case review ?
Representative of Miners can serve as a Petitioner of all Miners’
interests on Appeal No. 11-71601, special conditions exist currently where Miners’
Mine Act protective provisions are being shortcutted, bypassed and dismissed because of
Caseload pressures and mining agencies unwillingness to compel Operators cooperation.
Miners need the immediate involvement of a higher court to bring in some effective
checks and balances to MSHA, ALJ and FMSHRC’s growing abandonment of Miners’
protective provisions, such as an injunctive empowerment of Representatives of Miners.
Here some good arguments for U.S. Court of Appeals Ninth Circuit not to let this case
escape your jurisdiction:
The requisite Representative of Miners role controversy is present as Representative
of Miners implies overall or general representation of Miners as the only participant
non-governmental entity named in the 1977 Mine Act. Representative of Miners’
effectual participation in representing Miners’ concerns are relegated primarily to
M.S.H.A.’s tightly restricted participation in legitimate Operator / Miner safety concerns.
Page 4
Assuming the requisite case or controversy is present,
the United States, suing under 28 U.S.C. § 1345, can
invoke the Declaratory Judgment Act to obtain a declaration
of rights or other legal relationships. See, e.g., Wyandotte
Transportation Co. v. United States, 389 U.S. 191, 201,
204 (1967); State of Wyoming v. United States, 310 F.2d
566 (10th Cir. 1962), cert. denied, 372 U.S. 953 (1963);
Universal Fiberglass Corp. v. United States, 400 F.2d 926
(8th Cir. 1968).
Under 28 U.S.C. § 1345, can invoke the Declaratory
Judgment Act to obtain a declaration of rights or other
legal relationships. See, e.g., Wyandotte Transportation
Co. v. United States, 389 U.S. 191, 201, 204 (1967);
State of Wyoming v. United States, 310 F.2d 566 (10th
Cir. 1962), cert. denied, 372 U.S. 953 (1963); Universal
Fiberglass Corp. v. United States, 400 F.2d 926 (8th
Cir. 1968).
- U.S. MINERS’ REMEDY Sought –
Dismiss F.M.S.H.R.C.’s motion to Dismiss Petitioner(s) Petition for Review and to
Defer Filing of Record, provide ProBono Program representation for realistic chance of
Improving Congress intended conditions for all Miners under the Mine Act.
Affirmative relief to U.S. Miners by way of injunction of M.S.H.A., A.L.J. and
F.M.S.H.R.C. Mine Act non- enforcement activity practices via effective empowerment
of Representative of Miners ( empowerment suggestions provided in mooted motion )
during Mandamus provisioned Declaratory Judgement.
Affirmative relief by way of injunction is sought from
time to time to advance major public interests or enforce
governmental functions. Such injunction actions may be
specifically provided for by statute. See, e.g., United
Steelworkers of America v. United States, 361 U.S. 39
(1959) (injunction under the Taft-Hartley Act). Injunction
actions may also be maintained to enforce statutes which
do not specifically provide for such a remedy. See, e.g.,
In re Debs, 158 U.S. 564 (1895); United States v. United
Mine Workers, 330 U.S. 258 (1947). Injunctive relief may
Page 5
also be sought from an appellate tribunal under the All
Writs Act, 28 U.S.C. § 1651(a). See, e.g., FTC v. Dean
Foods Co., 384 U.S. 597 (1966).
PETITION FOR WRIT OF MANDAMUS; PURSUANT TO 18 U.S.C. §
3771(d)(3).”. Exercise Mandamus to keep the case within the jurisdiction of the U.S.
Court of Appeals Ninth Circuit due to the immediate nation wide importance of
providing effective representation for all Miners in the face of growing dismissal of
their Mine Act protective provisions by M.S.H.A., the Office of A.L.J. and the
F.M.S.H.R.C. due to caseload pressure and lack of resolve to compel Operator
compliance with the Congress enacted Miners’ protective provisions found in the ACT.
LaBuy v. Howes Leather Co., 352 U.S. 249 (1957);
United States v. McGarr, 461 F.2d 1 (7th Cir. 1972).
The All Writs Act, 28 U.S.C. § 1651(a), confers the
power of mandamus on federal appellate courts power.
See Schlagenhauf v. Holder, 379 U.S. 104 (1964).
Mandamus may be LaBuy v. Howes Leather Co., supra.
Mandamus may be appropriately issued to confine an
inferior court to a lawful exercise of prescribed
jurisdiction, or when there is an usurpation of judicial
employed to require a lower court to enforce the
judgment of an appellate court, or to keep such a court
from interposing unauthorized obstructions to the
enforcement of the judgment of a higher court. See
United States v. District Court, 334 U.S. 258, 263 (1948)
(to enforce obedience to court of appeals mandate).
I leave room for Intervenor or Pro Bono Program representation in all of my Motions
before the U.S. Court of Appeals Ninth Circuit Appeal No. 11-71601 and I officially
request that extra time be provided for that representation to occur in Petitioners’
Responses to F.M.S.H.R.C.’s Motions and for Brief filings (if Appeal reinstated).
Page 6
- Miner’s Remedy sought –
Standard compensations for lost income, lost benefit values, personal damages
during over five years displacement. Plus punitive damages under the False Claims Act
for Operator misrepresentations in 105C Discrimination Docket No. WEST 2006-568-
DM for Jayson Turner and M.S.H.A. ( to discourage Operator non-compliance with Mine
Act miner protective provisions and bring potential remedy for Miners to realistic level).
It’s important to bring to light for correction, the endorsed dismissal of Congress
enacted Miners’ protective provisions by those Agencies charged with their enforcement.
Petitioner(s) requests that with Ninth Circuit’s retrieval of Petition #11-71601,
that records AND motion responses submissions deadlines be extended forty five days
and that a twelve week extension of briefs submission deadlines be approved by the court
for all parties pertaining to Appeal No. 11-71601.
Due to litigious complexity, pro se Appellant requests a minimum of 14 days notice
before the first motion response deadline occurs and requests service of the Courts
decision specifically pertaining to Appellants’ requested extensions; 45 day extension for
all records and motion responses submissions and 12 weeks extension for all briefs.
There is an immediate possibility of bringing sorely needed injunctive relief to all
U.S. Miners through this case. Pro se litigants are entitled to the opportunity to submit
evidence in support of their claims and have the evidence properly evaluated
“…appellate consideration on the merits.”Evitts v. Lucey,
469 U.S. 387, 393 (1985) (citation omitted)”.
Picking v. Pennsylvania Railway , (151 F2d. 240) Third
Circuit Court of Appeals. In Picking , the plaintiffs civil
rights was 150 pages and described by a federal judge as
"inept." Nevertheless, it was held:
Page 7
Where a plaintiff pleads pro-se in a suit for protection of
civil rights, the court should endeavor to construe
plaintiffs pleading without regard to technicalities.
In Walter Process Equipment v. Food Machinery 382 U.S.
172 (1965) it was held that in a "motion to dismiss, the
material allegations of the complaint are taken as admitted."
From this vantage point, courts are reluctant to dismiss
complaints unless it appears the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief (see Conlev vs. Gibson , 355 U.S. 41(1957).
In Puckett v. Cox , it was held that a pro-se complaint
requires a less stringent reading than one drafted by a
lawyer (456 F2d 233 (1972 Sixth Circuit USCA) said
Justice Black in Conley v. Gibson . 355 U.S. 41 at
48(1957) "The Federal Rules rejects the approach that
pleading is a game of skill in which one misstep by
counsel may be decisive to the outcome and accept the
principle that the purpose of pleading is to facilitate a
proper decision on the merits." According to rule 8(f)
FRCP all pleadings shall be construed to do substantial
justice."
JUDICIAL NOTICE
All officers of the U.S. Court of Appeals Ninth Circuit are hereby placed on notice
under authority of the supremacy and equal protection clauses of the United States
Constitution and the common law authorities of Haines v Kerner, 404 U.S. 519, Platsky
v. C.I.A. 953 F.2d. 25, and Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000)
relying on Willy v. Coastal Corp., 503 U.S. 131, 135 (1992), “United States v.
International Business Machines Corp., 517 U.S. 843, 856 (1996), quoting Payne v.
Tennessee, 501 U.S. 808, 842 (1991) (Souter, J., concurring). Trinsey v. Pagliaro, D.C.
Pa. 1964, 229 F. Supp. 647, American Red Cross v. Community Blood Center of the
Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001). In re Haines: pro se litigants (Defendant is a
pro se litigant) are held to less stringent pleading standards than BAR registered
Page 8
attorneys. Regardless of the deficiencies in their pleadings, pro se litigants are entitled to
the opportunity to submit evidence in support of their claims. In re Platsky: court errs if
court dismisses the pro se litigant (Defendant is a pro se litigant) without instruction of
how pleadings are deficient and how to repair pleadings. In re Anastasoff: litigants’
constitutional rights are violated when courts depart from precedent where parties are
similarly situated. All litigants have a constitutional right to have their claims adjudicated
according the rule of precedent. See Anastasoff v. United States, 223 F.3d 898 (8th Cir.
2000). Statements of counsel, in their briefs or their arguments are not sufficient for a
motion to dismiss or for summary judgment, Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F.
Supp. 647.
If the U.S. court of appeals Ninth Circuit decides to uphold it’s dismissal of
Appeal No. 11-71601, please reissue the Order with language that will promote a swift
final decision by F.M.S.H.R.C. and that injunctive relief can still be sought for the 2nd
petitioner ( Representative of Miners ) through merit of the case review, regardless of the
F.M.S.H.R.C.’s final decision on 105C Discrimination docket WEST 2006-568-DM.
There are no new issues being raised in this motion. Merit of the case review of all
official documents related to this 105C Discrimination case will substantiate my claims.
- All the preceding is true to the best of my knowledge. -
Respectfully submitted to Office of the Clerk U.S. Court of Appeals Ninth Circuit
Jayson Turner, and Representative of Miners, signed __________________________
Docket WEST 2006-568-DM
P.O. Box “C”, Pine Mountain, CA 93222 Phone (661) 242-3000
CC to all parties in of U.S. Court of Appeals Ninth Circuit Appeal No. 11-71601
***********************************
as of 3-19-11 No Reply from U.S. COAppeals 9th Circuit
about 1 year ago
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