United States Court Of Appeals for The Ninth Circuit
No.: 18-55725
EMELIA ANDOH-KESSON AND BENJAMIN ANDOH-KESSON
ProSe Movants, Appellants
EMELIA ANDOH-KESSON AND BENJAMIN ANDOH-KESSON
ProSe Plaintiffs, Appellants
AGAINST
LAW OFFICE OF MCINTYRE LAW GROUP,
SAN JUAN MEADOWS HOMEOWNERS ASSOCIATION
AND NATIONSTAR MORTGAGE, LLC
Defendants, Appellees
NOTICE OF APPEAL UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
CASE NUMBER: SACV-15-00398-JVS-JCG
MOTION TO STAY ISSUANCE OF MANDATE
PENDING DISPOSITION OF PETITION FOR WRIT OF CERTIORARI
Emelia Andoh-Kesson and
Benjamin Andoh-Kesson
340 East 1st Street, Suite 1655
Tustin, California 92781
Tele: 714.884.5764
Primary Email: proselex@proselex.net
Secondary Email: ben08win@yahoo.com
-i-
TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................1
II. STANDARD OF APPELLANT REVIEW ......................................................... 3
III. JURISDICTION TO ADJUDICATE—A QUESTION OF LAW ..................... 4
Movants/Appellants argue that Jurisdiction to Adjudicate doctrine as articulated
by The United States Supreme Court is in disarray, deferring to constitutional
question of law as follows: ................................................................................. 4
(1) What is the jurisdictive authority and scope of this Court to adjudicate
alleged improper deposal of civil cause of action derived from the Federal
District Court; and ..............................................................................................4
(2) Ninth Circuit Court of Appeals issuant of Mandate is a question of law. ....... 4
IV. GOOD CAUSE FOR STAYING ISSUANCE OF MANDATE....................... 5
V. ARGUMENT .......................................................................................................7
VI. RULE 54 (B) SEVENTY-FIVE YEARS OF CONFUSION ............................ 8
VII. NOTICE OF APPEAL .....................................................................................9
VIII. JUDGEMENT ON MULTIPLE CLAIMS BEFORE FINALITY ............... 11
IX. ALLEGED LACK OF JURISDICTION TO REVIEW .................................13
X. NOTICE OF APPEAL NOT A JURISDICTIONAL .......................................14
A. Subject-Matter Jurisdiction ..............................................................................14
XI. CONGRESS ALONE MAKE JURISDICTIONAL RULES ..........................15
B. Rule 4: Appeal as of Right—Time for Filing Notice of Appeal......................17
XII. CONCLUSION ..............................................................................................19
I. CERTIFICATE OF COMPLIANCE..................................................................20
II. CERTIFICATE OF PACER SERVICE ............................................................20
III. APPENDIXES: “A,” “B”; “C” ARE ATTACHED. ........................................21
-ii-
TABLE OF AUTHORITIES CITED
COMMON-LAW PRECEDENTS
Times-Picayune Public Corp., v. Schulingkamp, 419 U.S. 1301, 1305 (1974) … 2
Bryant v. Ford Motor Co., 886 F.2d 1526, 1528 (9th Cir. 1989) ………………..2
Engel Indus., Inc. v. Lockformer Co., 166 F.3d 1379, 1382, 49 U.S.P.Q. 2d 1618,
1621 (Fed Cir 1999) ……………………………………………………………...3
Laitram Corp. v. NEC Corp., 115 F.3d 947, 950, 42 U.S.P.Q. 2d 1897, 1899 (Fed
Cir 1997) …………………………………………………………………………3
Cooter & Gell v. Hartmarx Corp, 496 U.S. 384 (1990) …………………………4
Deering Milliken, Inc. v. FTC, 647 F.2d 1124, 1128 (D.C. Cir. 1978) ………….5
United States Postal Service v. AFL-CIO, 481 U.S. 1301, 1302 (1987) ………...5
Books v. City of Elkhart, 239 F.3d 826, 828 (7th Cir. 2001) …………………….5
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984)
………………………………………………………………………………… …6
Connecticut Depart of Public Utilities Control v. FERC, 569 F.3d 477, 479, 48183 (D.C. Cir. 2009) —Conn. DPUC ……………………………………………..6
Entergy Services, Inc. v. FERC, 400 F.3d 5, 8 (D.C. Cir. 2005) ………………..6
BP W. Coast Products, LLC v. FERC, 374 F.3d 1263, 1273 (D.C. Cir. 2004) ....6
Nanda v. Board of Trustees of the University of Illinois, 312 F.3d 852, 853
(Seventh Circuit 2002) …………………………………………………………...7
Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) ……………………………....7
Nara v. Frank, 494 F.3d 1132, 1133 (Third Cir. 2007) ……………………….....7
Osborn v. Bank of the United States, 22 U.S. 9 Wheat, 738 738 (1824) …….....10
Hamer v. Neighbourhood Housing Services of Chicago, 583 U.S. ___ (2017) ..15
Bowles v. Russell, 551 U.S. 205 (2007) ………………………………………. 17
Smith v. Barry et al., 502 U.S. 244 (1992) ……………………………………..18
Torres v. Oakland Scavenger Co., 487 U. S. 312, 317, 319 (1988) ………..19; 20
-iii-
FEDERAL STATUTORY PROCEDURES; RULES
Federal Rule Appellant Procedure 41…………………………………………….2
Federal Rules Appellant Procedure 41 (d) (2) (A) …………………………….2; 5
Federal Rules of Appellant Procedure 41(d) (2) (A) (B) ………………………...3
Ninth Circuit Court of Appeals Rule 41………………………………………….3
Federal Rules of Appellate Procedure 1 (b) ……………………………………..4
Federal Rules of Appellant Procedure, Rule 41 (d) (1) ……………………….…4
District of Columbia Circuit, Rule 41 (a) (2) ……………………………………5
Federal Rules of Appellant Procedure, Rule 41 (d) (2) (B) ……………………...5
Federal Rules of Civil Procedure, Rule 54 (b) …………………………………...8
Federal Rule of Civil Procedure 54 (b) ………………………………..………..12
Federal Rule of Appellate Procedure, Rule 4 (a) (5) (C) ……………………….15
Federal Rule of Appellate Procedure, Rule 4 (a) (5) (A) subsection 2107 (c) …...9
Federal Rules of Appellate Procedure, Rule 4 (a) (5) (C) ………………………17
Federal Rules of Appellate Procedure, Rule 3 ………………………………….18
Federal Rules of Appellate Procedure, Rule 4 ………………………………….18
Federal Rules of Appellate Procedure Rule 3(c) ………………………………..20
Federal Rules of Appellate Procedure, Rule 4 (a) (1) …………………………..20
THE UNITED STATES SUPREME COURT RULES
United States Supreme Court Rule 13 …………………………………………...3
United States Supreme Court Rule 10(c) ………………………………………...3
UNITED STATES CONSTITUTION
Title VII of the Civil Rights Act of 1964 ……………………………………….16
UNITED STATES CODE
Title 42 U. S. C. § 1983 ……………………………………………………..18; 20
NINTH CIRCUIT COURT OF APPEALS LOCAL RULES
Ninth Circuit Court of Appeals Local Rule 41-1…………………………………1
-iv-
-v-
-vi-
I. INTRODUCTION
Movants/Appellants, Emelia Andoh-Kesson, and Benjamin Andoh-Kesson—
; herein may be referred to as “Appellants”—respectfully move this honourable
Court to adjudge Motion to Stay Issuance of Mandate pending the filing of Petition
for Writ of Certiorari in The United States Supreme Court. Pursuant to the Federal
Rule Appellant Procedure 41 and Ninth Circuit Rule 41-1. Appellants further
contend that if this Court grant the Motion to Stay, said “Stay” must not exceed 90days pursuant to the Federal Rules Appellant Procedure 41 (d) (2) (A); also consult
the United States Supreme Court Rule 13. Moreover, if appellants petition this
Court for an additional extension for “Good Cause,” the said extension will
continue until The United States Supreme Court’s final disposition pursuant to the
Federal Rules of Appellant Procedure 41(d) (2) (A) (B) or Federal Rules of
Appellate Procedure 1 (b). Appellants assert under Federal Rule of Appellate
Procedure 41, “[a] Party may move to Stay the Mandate pending the filing of a
Petition For A Writ Of Certiorari in the United States Supreme Court” pursuant to
the Federal Rules of Appellant Procedure, Rule 41 (d) (1). Staying the issuance of
the Mandate pending application for Certiorari is appropriate where “the certiorari
petition would present a substantial question and . . . there is good cause for a stay”
pursuant to the Federal Rules of Appellant Procedure, Rule 41 (d) (2) (A).
-1-
Appellants further contend that the Court held, even a substantial question of
law gives rise to “Good Cause” to Stay issuance of a Mandate where there is:
(1) A “reasonable probability” that the United States Supreme Court will grant
Certiorari, finding the underlying issues “sufficiently meritorious”; and
(2) A “significant possibility” that appellants will prevail on the merits; and
(3) A “likelihood of partylitigant experiencing “irreparable harm” if Mandate is
not stayed.” Consult the common law precedent in the matter of TimesPicayune Public Corp., v. Schulingkamp, 419 U.S. 1301, 1305 (1974)—
Powell, J as Circuit Justice in chambers opined that if this Court grants a Stay,
and the partylitigants must file a Petition for Writ of Certiorari, “the stay
continues until the Supreme Court's final disposition” pursuant to the Federal
Rules of Appellant Procedure, Rule 41 (d) (2) (B).
Appellants further argue that although a Stay of the Mandate pending
petition to the Supreme Court is not “granted as a matter of course.” Consult Ninth
Circuit Court of Appeals Rule 41-1, which provides that “a partylitigant seeking a
Stay of the Mandate following this Court’s judgement need not demonstrate that
exceptional circumstances justify being granted a stay.” Consult the common law
precedent in the matter of Bryant v. Ford Motor Co., 886 F.2d 1526, 1528 (9th Cir.
1989). The Comments to Circuit Rules indicate that a “Stay” is only denied where
the petition would be “frivolous or filed merely for delay.”
-2-
Consult the Ninth Circuit Court of Appeals 41-1. The Supreme Court is likely to
grant a Petition for Writ of Certiorari if the United States Court of Appeals has
undertaken following as follows:
(1) Decided an important question of federal law that has not been, but should be,
settled by this Court, or has decided an important federal question in a way that
conflicts with relevant decisions of the United States Supreme Court Rule
10(c); and
(2) Applying the relevant factors here dictates that this Court’s Mandate may be
stayed pending the filing of a Petition for Certiorari. Appellants reiterate
provided Certiorari be not being employed as a frivolous attacked merely for
delay.
II. STANDARD OF APPELLANT REVIEW
Appellants argue that the Ninth Circuit Court of Appeals reviews the
interpretation of its own Mandate for a possible de novo standard of review.
Consult the common law precedent in the matter of Engel Indus., Inc. v.
Lockformer Co., 166 F.3d 1379, 1382, 49 U.S.P.Q. 2d 1618, 1621 (Fed Cir
1999)—“We review the interpretation of our own mandate de novo” —; Laitram
Corp. v. NEC Corp., 115 F.3d 947, 950, 42 U.S.P.Q. 2d 1897, 1899 (Fed Cir 1997)
the Court held that “[T]he interpretation by an Appellate Court of its own Mandate
-3-
is properly considered a Question of Law, reviewed de novo.” Consult In re
Cooter & Gell v. Hartmarx Corp, 496 U.S. 384 (1990).
The Supreme Court held that, although a determination of sanctions under Federal
Rule of Civil Procedure 11 involves both factual and legal issues, all aspects of the
Rule 11 determination are reviewed for an abuse of discretion. That deferential
standard is appropriate, the Court held, because “the district court is better situated
than the court of appeals to marshal the pertinent facts and apply the factdependent legal standard mandated by Rule 11.”
III. JURISDICTION TO ADJUDICATE—A QUESTION OF LAW
Movants/Appellants argue that Jurisdiction to Adjudicate doctrine as articulated by
The United States Supreme Court is in disarray, deferring to constitutional
question of law as follows:
(1) What is the jurisdictive authority and scope of this Court to adjudicate alleged
improper disposal of civil cause of action derived from the Federal District
Court;1 and
(2) Ninth Circuit Court of Appeals issuant of Mandate is a question of law.2
1
Andoh-Kesson and Andoh-Kesson v. San Juan Meadows Homeowners Association, Case Number: SACV-1500398-JVS-JCG
2 In re Cooter & Gell v. Hartmarx Corp, 496 U.S. 384 (1990)
-4-
IV. GOOD CAUSE FOR STAYING ISSUANCE OF MANDATE
Appellants argue that this Court alleged lack of jurisdiction to adjudicate
may giving rise to “Good Cause” for staying said Mandate pursuant to the Federal
Rules of Appellant Procedure, Rule 41(d) (2) (A). In addition, consult District of
Columbia Circuit, Rule 41 (a) (2), which provides that an Appellant’s Motion to
Stay Mandate must allege “facts showing good cause for the relief sought.”
Appellants further argue that to determine whether a Petition for Certiorari
presents a “substantial question,” this Court must consider whether the Petition for
Certiorari “tender an issue; or issues that [is] are substantial.” Consult the
common law precedent in the matter of Deering Milliken, Inc. v. FTC, 647 F.2d
1124, 1128 (D.C. Cir. 1978). Furthermore, this Court may consider whether there
is a reasonable probability that the United States Supreme Court will grant
Certiorari and whether there is a reasonable probability of reversal. Consult the
common law precedents in the matter of United States Postal Service v. AFL-CIO,
481 U.S. 1301, 1302 (1987)—Rehnquist, C. J., in chambers—; the Court held in
considering staying the issuance of a Mandate, the Court may consider “whether
four Justices will vote to grant Certiorari [and] consideration as to predicting the
final outcome of the case in the Supreme Court;” Books v. City of Elkhart, 239
F.3d 826, 828 (7th Cir. 2001).
-5-
Moreover, the probability that the United States Supreme Court may grant of
Certiorari “must [be] consider[ed] … in the context of the case history [and] the
Supreme Court’s treatment of other cases presenting similar issues.” Consult in re
Books, 239 F.3d at 828. Petition for Certiorari in this proceeding meets this
requirement because the majority’s opinion raises substantial questions regarding
recent United States Supreme Court rulings of other circuit courts; in addition to
adjudications derived from the Ninth Circuit Court. Consult the following
common law precedents: in re Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
467 U.S. 837, 842-43 (1984); Connecticut Depart of Public Utilities Control v.
FERC, 569 F.3d 477, 479, 481-83 (D.C. Cir. 2009)—”Conn. DPUC”—; Entergy
Services, Inc. v. FERC, 400 F.3d 5, 8 (D.C. Cir. 2005); BP W. Coast Products,
LLC v. FERC, 374 F.3d 1263, 1273 (D.C. Cir. 2004). Appellants argue that where
there is a substantial question of law, the Ninth Circuit Court of Appeals may
exercise its jurisdiction to adjudicate; review judgement deriving from the United
States District Court for the Central District of California.3
3
Emelia and Benjamin Andoh-Kesson against San Juan Meadows Homeowners, Federal District Court Case
Number: SACV-15-00398-JVS-JCG
-6-
V. ARGUMENT
Appellants argue that this Court should consider the point of law “good cause,”
which weights the balance of equities in the interest of due process and
constitutional fairness because appellants may/will suffer “irreparable injury” if the
stay is denied. Consult the following common law precedents: in re Nanda v.
Board of Trustees of the University of Illinois, 312 F.3d 852, 853 (Seventh Circuit
2002); also consult in re Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980); in re
Nara v. Frank, 494 F.3d 1132, 1133 (Third Cir. 2007) and in re Books, 239 F.3d at
828, the Court held that “in application, the “irreparable injury” standard requires
that partylitigants show harm will occur in absence of the “Stay”; or that public
interest supports the “Stay.” Consult—that is, in re Books, 329 F.3d at 829, the
Court held that balance of equities favoured staying the issuance of a Mandate in
case involving public display of religious material where “public interest is best
served [by] affording the City a full opportunity to seek review in the Supreme
Court of the United States before its officials devote attention to formulating and
implementing a remedy.” Therefore, appellants argue that even if an Appeal is
unavailable and if the Judgement is valid; or inescapable, other legal remedies
are available, and remain open: Partylitigant may return to the Court that issued the
judgement; or petitions the Court to reconsider, and if the Court agrees, it may
recall its prior Mandate and decide the case anew.
-7-
VI. RULE 54 (B) SEVENTY-FIVE YEARS OF CONFUSION
Appellants respectfully remind this Court since the codification of Federal
Rules of Civil Procedure, Rule 54 (b) by the United States Congress into law no
United States Circuit Court of Appeal or Federal District Court was sure about its
meaning and has produced seventy-five years of confusion. Appellants further
contend that this Court maintain the jurisdictive authority to review appellants’
Notice of Appeal even if the District Court did not properly, or completely
disposed civil cause of action pursuant to Rule 54(b). Nevertheless, the Sixth
Circuit Court had an “eleventh-hour” concerning its jurisdictive authority in re
Planned Parenthood 4 under Rule 54(b), which created constitutional consequences
for the Court and other courts. Therefore, federal courts continue to grapple with
understanding what constitutes a “final claim” under the Rule 54 (b) and
determining if a resolved claim is sufficiently distinct from those that remain for
adjudication. Moreover, the Federal Rules of Civil Procedure, Rule 54 (b)
authorises federal district courts to enter partial final judgment 5 in multi-party
litigation even if not adjudicated in its entirety. 6
Consult in re Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 493–94 (6th Cir. 2 (2012).
Consult in re Computech International, Inc. v. Compaq Computer Corporation, WL 2291496 SDNY, Sweet; USDJ
(2004)
6 Consult in re Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 493–94 (6th Cir. 2 (2012).
4
5
-8-
VII. NOTICE OF APPEAL
Appellants argue that the Ninth Circuit Court of Appeals must review
appellants’ Notice of Appeal even if Federal District Court did not completely
dispose of civil cause of action. Nevertheless, the quests to settle upon clear
principles that govern the permissible reach of courts in this latter sense—personal
jurisdiction—has occupied the Supreme Court ever since its seminal precedent in
the matter of Pennoyer v. Neff, 95 U.S. 714 (1878), the Supreme Court of the
United States held that a Court can exert personal jurisdiction over a Party if that
Party is served with process while physically present within the State.
Appellants further assert, on June 11, 2018. The United States Court of
Appeals for the Ninth Circuit promptly issued a Mandate Order, inducing
movants/appellants to demonstrate that this Court has the apparent jurisdictive
authority—personal or subject matter jurisdiction—to review plaintiffs’ Notice of
Appeal deriving from the United States Federal District Court Central District
Judgement in favour of the defendants. 7
7
Federal District Court Case Number: SACV-15-00398-JVS-JCG
-9-
Appellants further contend that the Ninth Circuit Court of Appeals alleged
that the Federal District Court did not properly disposed of plaintiffs’ civil cause of
action; therefore, lack the jurisdiction—personal and subject matter jurisdiction—
adjudicate; or authority to review movants/appellants’ Notice of Appeal.
Movants/Appellants rebut the Court’s Mandate order because the honourable
James V. Selma, Judge for the United States Federal District Court properly
adjudicated—that is, disposed of the civil matter between Emelia and Benjamin
Andoh-Kesson against San Juan Meadows Homeowners. See Appendix “A”
attached. Furthermore, this Court exercised its jurisdictive authority by issuing
said Mandate, we believe may give rise to appellants’ right petition Certiorari due
to alleged violation of the appellants’ constitutional rights to appeal the Federal
District Court’s judgement in favour of defendants. 8 According to Article III of the
Constitution, Sections 1-29; including the landmark precedent in the matter of
Osborn v. Bank of the United States, 22 U.S. 9 Wheat, 738 738 (1824). The Third
Article of the Constitution provides that courts’ jurisdictive; or “judicial power(s)
shall extend to all legal cases, in law and equity arising under this Constitution.”
8
Perry v. Schwarzenegger, 591 F.3d 1126, 1132 (9th Cir. 2010)
9
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the
United States, and Treaties.
-10-
In addition, “civil laws of the United States and negotiated treaties made or which
shall be inevitably made, under courts authority.”
Appellants believe that a Writ of Certiorari would address a substantial
question of constitutional law; therefore, ascertaining “Good Cause” for a Stay of
Mandate. Appellants further believe that on the balancing of all relevant facts and
the points of law will support their right to seek certiorari because “The issuance of
a mandate does not affect a litigant’s Right to Seek Certiorari.” Consult the Sixth
Circuit I.O.P. 41(d). Therefore, appellants respectfully remind this Court must
inevitably follow the well-accepted underlying principle that a Judge is vested with
the statutory authority to grant a “Stay” anticipating Certiorari pursuant to Title 28
U.S.C. § 2101(f).
VIII. JUDGEMENT ON MULTIPLE CLAIMS BEFORE FINALITY
Appellants argue the Ninth Circuit Court of Appeals decided unanimously
that the honourable judge, James V. Selna allegedly did not adjudge the civil case
in its finality between the partylitigants.10 Appellants further contend that even in
multiple claims partially disposed of jurisdiction still may be had by the Ninth
Circuit Court of Appeals. For instance, in August 2004, Planned Parenthood sued
the State of Ohio, challenging the constitutionality of a statute limiting access to
10
Andoh-Kesson and Andoh-Kesson v. San Juan Meadows Homeowners Association, civil case No.: SACV-1500398-JVS-JCG
-11-
RU-4864, 11 the “Early-Abortion Pill.12 In addition, after several years, the Federal
District Court, on summary judgment, rejected all but one of Planned Parenthood’s
constitutional challenges. And thereafter, the Sixth Circuit Court of Appeals
certified in re Planned Parenthood for immediate appeal under Federal Rule of
Civil Procedure 54 (b),7 which permits a Federal District Court to enter partial
final judgment on fewer than all claims in a multi-claim action if the court finds
“no just reason for delay.”
Appellants further argue that Rule 54 (b) provides that “If an action presents
more than one claim for relief—whether as a claim, counterclaim, crossclaim, or
third-party claim—; or if multiple parties are involved, the Court may direct entry
of a final judgment as to one or more, but fewer than all, claims or parties only if
the Court expressly determines there is “no just reason for delay” and that the
judgment is entered under Rule 54(b). Therefore, civil cause of action claims may
be revised before the entry of final judgement adjudicating all claims and parties’
rights and liabilities.
11
Mifepristone, also known as RU-486, is a medication typically used in combination with Misoprostol, to bring
about an abortion.
12
In re Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 493–94—Sixth Cir. 2 (2012).
-12-
IX. ALLEGED LACK OF JURISDICTION TO REVIEW
On June 11, 2018, the Ninth Circuit Court of Appeals issued an order for
lack of jurisdiction to adjudicate, or review of appellants’ application on appeal. In
addition to issuing a Mandate Order holding that, it cannot exercise subject-matter
jurisdiction over appellants’ application on appeal. The Ninth Circuit Court of
Appeals 13 also held that it lacked jurisdiction to review because the United States
District Court Judge allegedly did not enter an order disposing of civil cause of
action in its finality in re Andoh-Kessons v. San Juan Meadows Homeowners
Association; all others. 14 Nevertheless, appellants respectfully rebut this Court’s
decision for lack of jurisdiction to adjudicate; review partylitigants’ Notice of
Appeal because the US District Court Judge, Selna ruled the Civil Cause of Action
between the partylitigants disposed of with prejudice. Consult Appendix “B”
attached. And, appellants commenced with filing their Notice of Appeal after the
final adjudication of above-mention in re Andoh-Kessons v. San Juan Meadows
Homeowners Association; all others.15 Consult Appendix “C” attached.
Appellants assert that this Court exemplifies a rigid formalistic temperament; lacks
the judicial confidence for the administrative process of other courts.
13
Justices, Hawkins, Clifton, and N. R. Smith for the Ninth Circuit Court of Appeals
Federal District Court Case Number: SACV-15-00398-JVS-JCG
15 Federal District Court Case Number: SACV-15-00398-JVS-JCG
14
-13-
We further argue that even the United States Supreme Court held that “it gives
leave to Jurisdiction’s uncompromising authority to create—exceptions.”16
X. NOTICE OF APPEAL NOT A JURISDICTIONAL
A. Subject-Matter Jurisdiction
Appellants argue that “Subject-matter jurisdiction” may have been
ascertained when the Ninth Circuit Court of Appeals allegedly raised the legal
question, did the District Court Judge adjudged the civil dispute between
partylitigants 17 and entered a binding judgement. Furthermore, appellants draw
attention to that Frederic M. Bloom asserts that, “Legal Jurisdiction depends on
falsehood because legal jurisdiction portray itself as fixed and unyielding, as
natural as the force of gravity, and as stable as the firmest ground. But jurisdiction
is, in fact, something different—it is a malleable legal invention that bears a false
rigid front.” Plato called this the “Noble Lie.” Appellants also contend that this
Court supposed lack of jurisdiction to adjudicate or review appellants’ Judicial
Notice of Appeal may give rise to a constitutional question of law on its biased
absence of jurisdictional authority.
16
McCardle, 74 U.S. at 514, the Court held that others may still offer somewhat more nuanced—if still
compatible—definitions, which is no surprise. After all, jurisdiction has become a figure of many faces—“too
many” faces, perhaps in re Steel Co., 523 U.S. at 90, citing United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C.
Cir. 1996). Some courts perceives “Jurisdiction” “the motive force of a Court; the root power to adjudicate.”
In re Andoh-Kessons v. San Juan Meadows Homeowners Association, Federal District Court Case Number:
SACV-15-00398-JVS-JCG
17
-14-
Moreover, appellants argue that this Court in exercising its judicial wisdom must
establish an equilibrium and preserve the value of jurisdictional malleability.
Therefore, the source of jurisdictional limit is somewhat not be found in the United
States Constitution because the language of the Constitution is neither the source
of nor the answer about “subject-matter jurisdiction” or territorial limits on
adjudicative authority. †
Appellants reasonably argue that courts and academic scholars rigid mental
grasp of apparent lack of federal subject-matter jurisdiction may somewhat be
distorted because its fundamental meaning is rooted in the following constitutional
terms: the Full Faith and Credit Clause,18 where subject-matter jurisdiction may
well start; ‡ and the Due Process Clause, where it may well end. 19 Moreover,
Constitutional cogniscenti addresses “the gaps,” “great silences,” “vague
language,” and “open texture” as though these were concepts of controversy.
18
The United States Constitution, Article IV, Section 1
John N. Droback, The Federalism Theme in Personal Jurisdiction, 68 IOWA L. REV. 1015 (1983), Droback
insisted that personal jurisdiction cares most about individual fairness;
Redish, supra note 32, at 1115-19.
19
-15-
XI. CONGRESS ALONE MAKE JURISDICTIONAL RULES
Appellants respectfully argue that this Court may have unknowingly caused
a fundamental error by allegedly denying appellants’ fundamental right to judicial
review because a “Notice of Appeal” application is not jurisdictional and the
timely filing of said judicial application may be waived in the “Interest of Justice.”
Consult in re Hamer v. Neighbourhood Housing Services of Chicago, 583 U.S. ___
(2017)20, the Court held that failure to comply with the deadline for filing a “Notice
of Appeal,” established by Federal Rule of Appellate Procedure, Rule 4 (a) (5) (C),
does not necessitate dismissal of a case. Appellants reiterate that the United States
Supreme Court unanimously decide in re Hamer v. Neighbourhood Housing
Services of Chicago that a rule of appellate procedure limiting the length of an
extension for filing a “Notice of Appeal” is not a jurisdictional rule requiring
dismissal of the appeal if the time limit is exceeded, but a “mandatory claimprocessing rule” that can be waived or forfeited. Furthermore, because Congress
controls the jurisdiction of federal Courts and only Congress can limit jurisdiction,
including through regulations governing the time for filing an appeal.
20
Hamer v. Neighbourhood Housing Services of Chicago, 583 U.S. ___ (2017) is available from: Justia, Oyez
oral argument audio; the United States Supreme Court’s slip opinion.
-15-
Justice Ruth Bader Ginsburg announced a rule of decision “both clear and
easy to apply: If a time prescription governing the transfer of adjudicatory
authority from one Article III Court to another appears in a statute, the limitation is
jurisdictional; otherwise, the time specification fits within the claim-processing
category.” The U.S. Court of Appeals for the Seventh Circuit; therefore, erred in
dismissing Charmaine Hamer’s appeal, although seemingly untimely under a rule
of appellate procedure, for lack of jurisdiction and without considering whether the
defendants had forfeited the timeliness argument. Hamer sued Neighbourhood
Services of Chicago and Fannie Mae’s Mortgage Help Centre in federal Court,
alleging violations of the Age Discrimination Employment Act and Title VII of the
Civil Rights Act of 1964. Furthermore, appellants contend that in re Bowles v.
Russell, 551 U.S. 205 (2007), the Court held that the Seventh Circuit had conflated
the distinction between statutory jurisdictional rules and claim-processing rules. In
addition, Bowles was correct, because the timing prescription was imposed by
Congress; however, the same rule does not apply in this case because the limitation
derives from Rule 4 (a) (5) (C), not Section 2107. Since the time-extension rule is
not jurisdictional, resolution of the case requires consideration of subsidiary issues,
including whether National Health Service Corps—NHSC—forfeited the timing
arguments by not objecting to the overlong extension in the District Court or filing
-16-
its own “Notice of Appeal” and whether Rule 4 (a) (5) (C)21 should be subject to
equitable exception. Therefore, the Seventh Circuit did not address those issues;
the Supreme Court declined to reach them and remanded to give the lower Court
the first opportunity to do so.
B. Rule 4: 22 Appeal as of Right—Time for Filing Notice of Appeal
Appellants argue that even in a criminal matter, a “Notice of Appeal” is not
a jurisdictional issue to all intents and purposes. And, the prompt filing of an
application; the Court may waive said application in the adverse interest of
criminal justice. Moreover, the premature filing of said Notice of Appeal is not
grounds for dismissal. Pursuant to Rule 4 (d), which provides that “A prematurely
filed Notice of Appeal shall be treated as filed after the entry of the Judgment from
which the appeal is taken and on the day thereof.” Moreover, Rule 3 23 of the
Federal Rules of Appellate Procedure addresses federal appellate jurisdiction on
the filing of a timely Notice of Appeal.
Appellants argue that in the matter of Smith v. Barry et al., 502 U.S. 244
(1992) on Certiorari, the petitioner Smith’s filed a premature Notice of Appeal,
and therefore, the Fourth Circuit ruled that the filing of said Notice of Appeal is
invalid and premature.
21
Federal Rules of Appellate Procedure, Rule 4 (a) (5) (C)
Federal Rules of Appellate Procedure, Rule 4
23 Federal Rules of Appellate Procedure, Rule 3
22
-17-
The Notice of Appeal derived from a civil cause of action for damages against
State officials under Title 42 U. S. C. § 1983, the Fourth Circuit’s Clerk sent the
parties copies of the “informal brief” that that Court uses in propria persona
appeals and an explanatory order. Properlitigant, Smith returned his informal brief
within the deadline for filing a Notice of Appeal; as did the appellants, AndohKessons24 in the matter before this Court; however, the Court of Appeals dismissed
the appeal for absence of jurisdiction; concluding, inter alia, that a brief can never
be considered a Notice of Appeal. Nevertheless, on Certiorari the Court held: A
document intended to serve as an appellate brief may qualify as the Notice of
Appeal required by Rule 3.25 The Court further held that such a document is filed
within the time allowed by Rule 4 26 for a Notice of Appeal and satisfies Rule 3(c)’s
requirements as to the content of such a notice, it might be treated as the
“functional equivalent” of the formal notice demanded by Rule 3. Refer to Torres
v. Oakland Scavenger Co., 487 U. S. 312, 317. Furthermore, the fact that Smith
filed his informal brief in response to a briefing order is irrelevant, since it was not
the litigant’s intent to file said Notice of Appeal prematurely. Moreover, the fact
that the Rules 3; 4 envisioned that the Notice of Appeal and the Appellant’s Brief
will be reviewed as separate filings and does not preclude an Appellate Court from
24
Emelia and Benjamin Andoh-Kesson against San Juan Meadows Homeowners, Federal District Court Case
Number: SACV-15-00398-JVS-JCG
25
26
Federal Rules of Appellate Procedure, Rule 3
Federal Rules of Appellate Procedure, Rule 4
-18-
treating the Appellant Brief as a Notice of Appeal in the appropriate circumstances
pursuant to Federal Rules of Appellate Procedure, Rule 3(c), which requires that an
Appeal not be dismissed for informality of form or title of the Notice of Appeal
and proper briefing is not a jurisdictional requirement under the Rules. Appellants
argue in fact that Smith filed his Appellant Brief with the Court of Appeals, rather
than the District Court as required by Rule 3(a), is also irrelevant, since Federal
Rules of Appellate Procedure, Rule 4 (a) (1) sets out procedures to be followed
when the Notice of Appeal is mistakenly filed with an Appellate Court. On
Certiorari, the Court remanded the matter to the Court of Appeals under Federal
Rules of Appellate Procedure Rule 3(c), Pp. 247–250; 919 F. 2d 893, reversed and
remanded.
XII. CONCLUSION
Appellants respectfully argue that the late Associate Justice, Antonin G.
Scalia, concurring in the judgment and we quote: “I agree with the judgment
because Federal Rule of Appellate Procedure 3(c) provides that [a]n appeal shall
not be dismissed for informality of form or title of the Notice of Appeal. I do not
rely on the theory that Petitioner’s brief was the “‘functional equivalent’” of a
Notice of Appeal under a “liberal construction” of Rule 3 Ante, at 248. “[W]e
should seek to interpret the rules neither liberally nor stingily, but only, as best we
can, according to their apparent intent.” Refer to Torres v. Oakland Scavenger
Co., 487 U. S. 312, 319 (1988)—Scalia, J., concurring in judgment.
-19-
FOR THE FOREGOING REASONS, Appellants respectfully request that this
Court stay the issuance of its mandate pending the filing and disposition of a
timely Petition for Writ of Certiorari.
I. CERTIFICATE OF COMPLIANCE
Appellants certify pursuant to Federal Rule of Appellate Procedure 18 (b) (1) that
the foregoing Motion to Stay pending the filing review of Petition for Writ of
Certiorari by the United States Supreme Court may not exceed 5,200 words, and
20 pages using Microsoft Office Word Software Count.
Furthermore, we confirm that this Motion to Stay application word account
contains herein is 4,853 words and 20 pages generated through Microsoft Office
Word Software Count with exclusion to signature block and certificates. In
addition to being, type faced in Times New Roman font and 14 points.
Dated: 11 December 2018
Respectfully Submitted,
By:
Emelia Andoh-Kesson, ProSe Appellant
By:
Benjamin Andoh-Kesson, ProSe Appellant
II. CERTIFICATE OF PACER SERVICE
-20-
Appellants, Emelia, Benjamin Andoh-Kesson certify that we electronically filed
Motion to Stay Mandate Pending filing a Petition for Writ of Certiorari through our
online CM/ECF PACER account—account number 5600039—with the PACER
Service Centre. 27 We further certify that end-user litigants are registered the
PACER Service Centre as PACER end-users; therefore, notice and proof of
eservice will be perfected through PACER’s online service centre.
Dated: 11 December 2018
By:
Emelia Andoh-Kesson, ProSe Appellant
By:
Benjamin Andoh-Kesson, ProSe Appellant
III. APPENDIXES: “A,” “B”; “C” ARE ATTACHED.
†
Consult secondary persuasive material, Martin H. Redish, Due Process, Federalism, and Personal Jurisdiction: A
Theoretical Evaluation, 75 NW. U. L. REV. 1112, 1113-14 (1981) asserts that “In the personal jurisdiction context
... the Court has infused vague concepts of interstate sovereignty into the due process clause and relied on neither the
27
Public Access to Court Electronic Records
-21-
language, historically or in policy of the due process clause;” Max Rheinstein, The Constitutional Bases of
Jurisdiction, 2 2 U. CHI. L. REV. 775, 785 (1955) asserts “Nowhere ... can we find any clause which by clear words
defines the territorial limits of [personal] jurisdiction...”
‡
See James Weinstein, The Federal Common Law Origins of Judicial Jurisdiction: Implications for Modern
Doctrine, 90 VA. L. REV. 169, 172 (2004), which states “The basic territorial framework … stems not from the Due
Process Clause but from federal common law rules developed under the influence of the Full Faith and Credit
Clause. But confer to Synchron, Inc. v. Kogan, 757 So. 2d 564 (Fla. Dist. Ct. App. 2000) note 29, at 278, the Court
held that “The historical sources from which the full faith and credit clause evolved were not concerned with solving
questions of territorial sovereignty.”
-22-