IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgement below.

The opinion of the United States Court of Appeals for the Ninth Circuit is reprinted in the

Appendix, at A, and is unpublished. The decision of the United States District Court for

the District of Montana is reprinted in the Appendix, at B, and is unpublished. The order

denying Petitioners' request for rehearing en banc is reprinted in the Appendix, at C.

Memorandums related to this case are reprinted in the Appendix, at D and E,

C.A. No. 02-34351, C.A. No. 03-35811.

The decision of the United States Court of Appeals for the Ninth Circuit was entered on

January 17^th, 2006. Petitioner filed a timely petition for panel rehearing and rehearing

en banc on January 25^th, 2006. The petitions for panel rehearing and rehearing en banc

were denied by order dated June 26, 2006, and a copy of the order denying rehearing

appears at Appendix C.

The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

United States Constitution, Amendment Seven provides, in pertinent part:

that "the right of trial by jury shall be preserved…"

An issue of national importance is the constitutionality and interpretation of the Seventh

Amendment to the Constitution, the Right to Trial in civil matters.

If allowed to stand, the District Courts Judgement and the subsequent Court of Appeals

for the Ninth Circuit Judgement will establish an unlimited precedent for future disposal

of pro se cases pending before the federal judiciary, against which aggrieved parties

would have no recourse.

Such a result would undermine the U.S. Constitution's Seventh Amendment.

1. Factual Background.

October 1998, Petitioner made a supportive statement in favor of his supervisor in her

EEOC filing against BLM Miles City Field Office Mgr. Tim Murphy. Petitioner's

statements reflected negatively upon MCFO mgr Tim Murphy and the BLM Deputy State

Director of Support Services, Janet Singer.

December 22, 1998, Petitioner was "detailed" from BLM MCFO to BLM State Office

and given a "directed reassignment" by DSD Janet Singer, 5USC & 2302(b)(9), reprisal.

In October 1999, Janet Singer directed her subordinate Robin Stoebe to investigate

Petitioner's web site disclosures of the activities of herself and other BLM managers.

January 2000, Petitioner was placed on administrative leave and removed from civil

service for "misconduct" (March 2000) after revealing, via his Internet website, an ethics

violation by the MCFO Mgr Murphy and the drunken antics of the field solicitor Frost.

When EEOC failed to and MSPB refused to consider material facts and evidence of

Respondent's agent Singer's actions of reprisal and discrimination, Petitioner filed a

Complaint, Demand for Jury Trial, June 20^th, 2001, (FRCP - Rule 38 (a)(b)),

in Federal District Court Billings Montana.

On February 21^st,2002, the District Court dismissed Petitioner's case on procedural

grounds.

On January 21^st, 2003, the US Court of Appeals for the Ninth Circuit vacated and

remanded the District Court Judgement with guidance (C.A. No. 02-35341).

On March 18^th, 2003, The District Court Billings Montana abused its discretion, showing

blatant favoritism to the Defendant - denying Judgement for the Plaintiff when the

Defendant failed to respond in the required time (Local Rule 7.1) to Plaintiffs' Motion for

Judgement in his favor,

On March 14^th, 2003, The District Court Billings Montana Ordered the Defendant to

Reply to Plaintiff's Motion, giving the Defendant an additional (30) days beyond Rule

7.1. for the Ordered Reply.

On September 27^th,2004, ignoring the Court of Appeals Order in C.A. No. 02-35341,

the District Court again dismissed Petitioner's case on procedural grounds,

"because the recommended outcome of the motions does not depend upon analysis of

factual issues, but on matters of procedure."

In November 2004, Petitioner filed a timely appeal to the Court of Appeals for the

Ninth Circuit asking the court to reaffirm its earlier Order to the District Court.

 

 

On January 17^th,2006, the Appeals Court ignored its earlier decision and affirmed the

District Court.

On June 26^th, 2006, Failing to protect Petitioner's Constitutional Rights, including the

Right to Trial by Jury, the Appeals Court declined to rehear, rehear en banc.

Memorandum, April 7^th, 2005, C.A. No. 03-35811, is a related decision in the case

history, class action - age and gender discrimination, at Appendix E.

2. Decisions Below.

By Memorandum Opinion dated September 27, 2004, the District Court Montana

Billings granted the government's motion to dismiss the case.

The Petitioner appealed this decision.

By decision dated January 16^th, 2006, a panel of the U.S. Court of Appeals

for the Ninth Circuit affirmed the District Court's dismissal of the Petitioners' lawsuit.

Petitioners' timely motion for panel rehearing and petition for rehearing en banc were

denied by the Ninth Circuit Court of Appeals on June 26, 2006.

1. It is of national importance that the Court now address this Constitutional Right,

the Constitutional protection of the Seventh Amendment to the Constitution, the Right to

Trial in civil matters, to further aid and provide clarity to the lower courts in their

interpretation of Amendment Seven.

SUPREME COURT OF THE UNITED STATES, JANICE E. HETZEL v. PRINCE

WILLIAM COUNTY, VIRGINIA, and CHARLIE T. DEANE No. 97—954. Decided

March 23, 1998, "Petitioner contends that this action of the Court of Appeals violated her

Seventh Amendment right to a jury trial.2 We agree…."

II. The Court of Appeals erred saying …"his employers were not aware of his

alleged whistleblowing activities…", ignoring evidence throughout the record as in

(Supplement to Informal Brief of Appellant, 11/16/2004, exhibits, exhibit "B" dtd

9/2/1998, exhibit "Q" dtd 4/21/1999, exhibit "S" dtd 6/12/1999, exhibit "U" dtd

11/23/1999, exhibit "V" dtd 1/13/2000, exhibit "X" dtd 3/13/2000, and others);

The Court of Appeals erred by ignoring its previous judgement (C.A. No. 02-35341),

"It is not clear that Ferren cannot state a claim under Title VII of the Civil Rights Act

of 1964, 42 USC 2000e, and perhaps under other theories.

Because the deficiencies in Ferren's amended complaint may be curable with some

guidance from the (District) court,…

…the litigant should be given leave to amend with instructions…"

III. The court of Appeals erred by disregarding evidence of discrimination against

Petitioner, to whit…"With regard to numerosity, we note that the class agent identified

ten potential class members. However, as noted in the EEO Counselor's Report, these

potential class members also identified ten other potential class members…", US EEOC

Appeal No. 01A03959, Hearing No. 320-AO-8196X, Agency decision Vacated and

Remanded, Supplement to Informal Brief of Appellant, exhibit "CC", dtd 7/10/2002,

Supreme Court, Swierkiewicz v. Sorema, N.A., 00-1853; Employees suing for

discrimination do not have to initially provide detailed proof of their allegations,

Supreme Court, Smith v City of Jackson, No. 03-1160;

Petitioner need not show that respondents age and sex discrimination was intentional.;

"In light of the fact that MSPB never held a hearing on complainant's discrimination

claims, never evaluated evidence relevant to complainants discrimination claims,

and never decided or resolved those claims…the EEOC's Denver District Office

should…recommence processing his claims in accordance with 29 C.F.R. 1614.302

(c (2) (ii).", Office of the Solicitor, EEOC No. 320-99-8468X, No. LLM-99-027,

Supplement to Informal Brief of Appellant, exhibit "DD", dtd 10/27/2000.

IV. Review by this Court is warranted and necessary due to this clear conflict with

established constitutional principles of Right to Trial.

Petitioner contends that this action of the Court of Appeals violated his Seventh

Amendment right to a jury trial. The Seventh Amendment provides that "the right of trial

by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in

any Court of the United States, than according to the rules of the common law." U.S.

Constitution, Amdt. 7.

The District Court Billings Montana abused its discretion by denying Petitioners'

Right to Trial (FRCP - Rule 39(a)), upon its' initiative deciding that the right to trial by

jury does not exist under the Constitution or other statutes of the United States.

Denial of the right to trial by jury offends a principle of justice so rooted in the traditions

and conscience of our people as to be ranked as fundamental.

Petitioner's right to have a jury consider evidence is a "fundamental principle of justice."

The Right to Trial was so deeply rooted at the time of the Seventh Amendment as to be a

fundamental principle which that Amendment enshrined.

"Trial by jury is more than an instrument of justice and more than one wheel of the

constitution: it is the lamp that shows that freedom lives.",

P. Devlin, Trial by Jury 164 (1956).

Trial by jury is the great protector and bulwark of liberty against oppressive and

tyrannical government. Liberty will remain secure only "so long as this palladium [trial

by jury] remains sacred and inviolate, not only from all open attacks but also from all

secret machinations . . ." Blackstone 342-344, quoted in Jones v. United States, 119

S.Ct. at 1225.

V. "….and Justice for all".

The Ninth Circuit Court of Appeals is well aware that there are tools and guidance

available to assist pro se litigants, as evidenced in its earlier decision to vacate and

remand the District Court Judgement and in its guidance to the lower court.

The Civil Rights Act and the Rehabilitation Act give the Court discretionary authority to

appoint an attorney, 42 USC & 2000e, 29 USC & 794(a).

In Powell v Alabama the Supreme Court noted …"the right to be heard would be, in

many cases, of little avail if it did not comprehend the right to be heard by counsel.

Even the intelligent and educated layman has small and sometimes no skill in the science

of law." 28 USC & 1654.

The Court of Appeals later decision to Affirm the District Court, in effect denying Justice

to the common man to whom the rules of common law must apply, in order to reduce a

backlog of pro se cases, is a morally reprehensible and ethically bankrupt action.

If the Courts are the garments of law that protect the merits of a case, the decision by the

Ninth Circuit Court of Appeals to affirm the District Court is a stain upon those garments.

Petitioner asks for his Right to Trial, to face his accusers with pertinent evidence,

and contradict absolutely the reasons given for his removal from civil service.

A complaint should not be dismissed unless it appears beyond doubt that the Plaintiff can

prove no set of facts in support of the claim that would entitle the Plaintiff to relief.

See Van Buskirk v. Cable News Network, Inc. 284 F. 3d 977, 980 (9^th Circuit 2002)

The record in this case is extensive and clearly shows adequate evidence to support

Petitioners' claims for relief.

The petition for a writ of certiorari should be granted.

Respectfully submitted,

______________________

Date: September , 2006

Glenn D Ferren

P.O. Box 472

Superior, MT 59872

(406) 678-0795