Posted on | November 29, 2012 | 2 Comments
IN THE SUPREME COURT
OF THE UNITED STATES
TAITZ v ASTRUE
MOTION UNDER FRCP 60 (A) TO CORRECT AN ERRONEOUS DENIAL BY THE CLERK OF THE COURT OF A RIGHT BY THE PETITONER TO FILE A PETITION FOR A WRIT OF CERTIORARI OR A BILL OF REVIEW OR BILLS IN THE NATURE OF BILLS OF REVIEW UNDER EQUITY AND GIVE PETITIONER TAITZ A LEAVE OF COURT TO FILE A PETITION FOR A WRIT OF CERTIORARI WITHIN 60 DAYS
APPEAL FROM THE COURT OF APPEALS FOR THE CIRCUIT OF COLUMBIA
CASE # 11-5304
DR. ORLY TAITZ, ESQ
29839 SANTA MARGARITA, STE 100
RANCHO SANTA MARGARITA, CA 92688
SUMMARY OF THE MOTION
In October of 2012 Clerk of this Court erroneously denied petitioner her right to file a petition for a writ of certiorari claiming that she was out of time, as the clerk looked at the date of the original decision of the Court of Appeals panel and not at the date of the final order on the En Banc rehearing of the case, which was in August 2009. On October 7, 2012 Petitioner wrote to Chief Clerk Sutter requesting to correct the mistake, so she can file her Petition for Writ of Certiorari. Chief Clerk did not respond. Petitioner is seeking Supreme court of the United States to evoke its own equitable powers to control its own order and processes and correct a mistake made by the Clerk of the Court and allow petitioner a leave of court to file a petition for a Writ of Certiorari within 60 days.
BACKGROUND OF THE CASE
This case is an appeal of the final decision in a Freedom of Information appeal Taitz v Astrue 11-5304 U.S. Court of Appeals for the District of Columbia Circuit. Petitioner received her application back with a letter from Chief Clerk Sutter, which stated that she is out of time to file a petition for a writ of certiorari, as the mandate in her case was issued in May of 2012. On October 7, 2012 Taitz sent a letter to Chief Clerk Sutter advising him that the mandate in her case was issued on August 28, 2012 and the final decision on rehearing did not issue until August 9, 2012, therefore she had 90 days and was not out of time. (Exhibit 3). Taitz requested that Clerk Sutter correct his decision, so she can file a petition for a writ of Certiorai with the Supreme Court. Since October 7, 2012 Taitz did not receive any response.
A number of individuals called Chief Clerk Sutter inquiring what was going, why he is not responding. Among those individuals was a four star general, who was told by the Secretary of Chief Clerk Sutter that they know about this case and there will be a response. No response was received. Taitz called the Supreme Court and asked to talk to Sutter. She was transferred to his assistant James Bowdin, who advised Taitz that the actual decisions on timing of applications are made by an assistant clerk Jeff Atkins at phone number 202-479-3263. Apparently decisions are made by Atkins, but the letters are coming out with the signature of Chief Clerk Sutter. Taitz called Atkins, he had in front of him the case and 10.07.2012 letter sent by Taitz with an attached docket from the DC Court of Appeals. Taitz explained Atkins that he made an error and did not look at the date of the En Banc decision by the Court of Appeals, that indeed on October 1, 2012 90 days did not expire. Atkins was extremely rude and slammed the phone in Taitz face. As Taitz did not receive any response or corrective action from the Assistant Clerk Atkins or Chief Clerk William Sutter, she is submitting this motion at hand.
Rules of court of the supreme Court of the United States Rule 13. state as follows: “The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed…But if a petition for rehearing is timely filed in the lower court by any party, or if the lower court appropriately entertains an untimely petition for rehearing or sua sponte consider rehearing, the time to file a petition for a writ of certiorari for all parties 9whether or not they requested rehearing or joined in the petition for rehearing) runs from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment”. Exhibit 1, August 9, 2012 order from the United states Court of Appeals for the District of Columbia Circuit Taitz v Astrue 11-5304. and Exhibit 2, Docket id. showing final order being issued on august 9, 2012 and mandate being issued on august 28, 2012. So, when Taitz made a submission on October 1, 2012, 90 days since the order did not expire and she was not out of time. Clerk of SCOTUS clearly made an error. additionally, when Taitz submitted by Federal express her October 7, 2012 request for correction of error, clerk had to respond and correct an error made by the clerk’s office.
Rule 60. Relief from a Judgment or Order
(a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court’s leave.
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Courts have inherent powers to control their own power and processes. Hazel Atlass Glass Co v Hartford Empire Co., 322 U.S. 238 (1944) pp244-245
“…relief will be granted against judgments regardless of the term of their entry. Marine Insurance Co. v. Hodgson, 7 Cranch 332; Marshall v. Holmes, 141 U.S. 589. This equity rule, which was firmly established in English practice long before the foundation of our Republic, the courts have developed and fashioned to fulfill a universally recognized need for correcting injustices which, in certain instances, are deemed sufficiently gross to demand a departure from rigid adherence to the term rule. Out of deference to the deep-rooted policy in favor of the repose of judgments entered during past terms, courts of equity have been cautious in exercising their power over such judgments. United States v. Throckmorton, 98 U.S. 61. But where the occasion has demanded, where enforcement of the judgment is “manifestly 245*245 unconscionable,” Pickford v. Talbott, 225 U.S. 651, 657, they have wielded the power without hesitation. Litigants who have sought to invoke this equity power customarily have done so by bills of review or bills in the nature of bills of review, or by original proceedings to enjoin enforcement of a judgment.” id
As a clerical error was made in assertion that Taitz was out of time to file a petition for writ of certiorari on October 1, 2012 and as another clerical error was made in that the Clerk’s office did not respond to Taitz’s October 7, 2012 request to correct the prior clerical error, in accordance with FRCP rule 60 (a), SCOTUS has to use its’ inherent power to control its’ own order and processes and grant petitioner Taitz motion for leave of court to file a petition for writ of certiorari within 60 days.
/s/ Dr. Orly Taitz, ESQ
I, Lila Dubert, am not a party to this case, I am over 18 years old and I attest that a true and correct copy of this motion is filed with the Solicitor General and Helen Gilbert, U.S. Attorneys’ office, Counsel for the defendant.