No. ___________
___________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
___________________________________________
EUN JUNG LIM,
Petitioner,
v.
CITY OF IRVINE AND IRVINE POLICE DEPARTMENT, et al,
Respondents.
___________________________________________
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
___________________________________________
PETITION FOR WRIT OF CERTIORARI
___________________________________________
Eun Jung Lim
17192 Murphy Avenue #17723
Irvine, California [92623]
QUESTIONS PRESENTED
Whether a Magistrate Judge has jurisdiction to hear a matter if a party did not give consent.
Whether a federal court judge abuses the court’s discretion when they fail to follow the law.
Whether a federal court judge violates their oath of office to uphold the constitution, when they fail to follow the law.
Whether Chief Justice Philip Gutterriz is obligated to respond to judges violating their oaths of office.
Whether this Court should give special rules under 28 U.S.C. § 1292(e).
LIST OF PARTIES
All parties do not appear in the caption of the case on the cover page. A list of all parties to the proceeding in the court whose judgment is the subject of this petition is as follows:
Eun Jung Lim- Petitioner
City of Irvine- Respondent
City of Irvine Police Department- Respondent
Rene Nutter- Respondent
Michael Mcnall- Respondent
Eric Steele- Respondent
James Moore- Respondent
William Russell- Respondent
Herbert Conrad- Respondent
Jerry Poole- Respondent
Misty Daniels- Respondent
Todd Spitzer- Respondent
Dustin Rice- Respondent
Taylor Krone- Respondent
Allison Taylor Targoff- Respondent
Gaganjot Batth- Respondent
Michael Hamel- Respondent
County of Orange- Respondent
Sean Paul Crawford- Respondent
Michele Hinig- Respondent
TABLE OF CONTENTS
PETITION FOR A WRIT OF CERTIORARI 3
REASONS FOR GRANTING THE WRIT. 6
- A Magistrate Judge has no jurisdiction to preside over a matter where the parties have not given consent. 6
- The Court of Appeal Judge, the Magistrate Judge, and Judge Blumenfeld abused the Court’s discretion when they failed to follow the law.. 8
III. It is a violation of a judge’s oath of office for the judge to violate the law.. 11
- Justice Philip abused his discretion when he failed to act upon Judge Blumenfeld and Magistrate Judge Alka Sagar’s violation of their oaths of office. 11
- There is a need to give further guidelines on interlocutory appeals based on 28 U.S.C. § 636(c), et seq. 13
CONCLUSION & PRAYER FOR RELIEF. 14
TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. City of Bessemer City, N.C., 470 U.S. 577, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)……………………………………………………………… 7
Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)…………………………………………………………………………. 6
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170 (1974)……………… 11
Eun Jung Lim v. Irvine City, SA CV22-00137-SB (AS) (C.D. Cal. Feb. 28, 2023……………………………………………………………………………………….. 3
In re Search of Scranton Hous. Auth., 487 F.Supp.2d 530, 535 (M. D. Pa. 2007)……………………………………………………………………………….. 5
Roell v. Withrow, 538 U.S. 580, 591 (2003)………………………………… 5
U.S. v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009)……………… 7
Statutes
28 U.S. Code § 453……………………………………………………………….. 9
28 U.S.C. § 1291………………………………………………………………….. 2
28 U.S.C. § 1292(b)……………………………………………………………….. 8
28 U.S.C. § 1292(e)……………………………………………………………….. 2
28 U.S.C. § 636(c)(1)……………………………………………………………… 2
Constitutional Provisions
Article III, Section 2 of the United States Constitution…………………. 2
PETITION FOR A WRIT OF CERTIORARI
Petitioner respectfully petitions for a writ of certiorari to review the judgment of the U.S. Court of Appeals for the Ninth Circuit in No. 23-55178.
OPINION BELOW
The opinion of the United States Court of Appeals at Appendix A, is unpublished.
JURISDICTION
The decision of the Ninth Circuit was entered on March 29, 2023. This Petition is therefore filed within the 90-days limit provided under Rule 13 of the Supreme Court Rules. This Court has jurisdiction under 28 U.S.C. § 1254(1).
RELEVANT STATUTORY PROVISIONS
Article III, Section 2 of the United States Constitution provides in relevant part: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States,” and to certain “controversies.”
28 U.S.C. § 1291 provides in relevant part: “The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States…”
28 U.S.C. § 1292(e) provides: “The Supreme Court may prescribe rules, in accordance with section 2072 of this title, to provide for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided under subsection (a), (b), (c), or (d).”
28 U.S.C. § 636(c)(1) provides that “Upon the consent of the parties, a full-time United States magistrate judge or a part-time United States magistrate judge who serves as a full-time judicial officer may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or courts he serves.”
STATEMENT OF THE CASE
This case presents pertinent issues regarding the federal judges’ misapplication of the law and facts. It also concerns a jurisdictional issue of the appealability of an interlocutory order in the public interest where no provision thereof is made in 28 U.S.C. § 1292.
This Petition is based on Petitioner’s Appeal from two decisions of the Central District of California in Eun Jung Lim v. Irvine City, SA CV22-00137-SB (AS) (C.D. Cal. Feb. 28, 2023).
Firstly, when Petitioner filed the Complaint in said court on January 25, 2022, Judge Stanley Blumenfeld, Jr, was assigned to the case. However, on January 27, 2022, Judge Blumenfeld referred the matter to Magistrate Judge Alka Sagar.
Petitioner expressly opposed the referral of the matter to the Magistrate Judge. On December 28, 2022, Petitioner filed a No-consent form, which was entered into the Court records.
Despite Petitioner’s protests, the Magistrate Judge went ahead to preside over the case. Petitioner had filed a second Amended Complaint. The Judge identified deficiencies in the Amended Complaint and directed Petitioner to file a Third Amended Complaint.
Since Petitioner never consented to the Magistrate Judge presiding over the case, Petitioner could not proceed until the Magistrate Judge ceases from presiding over the case. Consequently, on February 28, 2023, the Magistrate Judge issued a recommendation that Petitioner’s Complaint be dismissed. The Magistrate Judge issued said order on the ground that Petitioner had failed to prosecute the case.
The second order that is subject to this Petition concerned Petitioner’s Motion for Leave to File Electronically, which Petitioner filed on October 24, 2022. The Magistrate Judge entered an Order on December 29, 2022, denying Petitioner’s Motion to File Electronically.
Consequently, Petitioner appealed the two decisions to the United States Court of Appeals, Ninth Circuit. The Appeal was timely. Petitioner filed the Notice of Appeal on February 24, 2023.
On March 29, 2023, the Court of Appeal issued an Order denying the Appeals. In denying the appeal, the Court of Appeal stated as follows: “A review of the record demonstrates that this court lacks jurisdiction over these appeals because the December 29, 2023 and February 28, 2023 orders challenged in the appeals are not final or appealable.”
This petition follows.
REASONS FOR GRANTING THE WRIT
I. A Magistrate Judge has no jurisdiction to preside over a matter where the parties have not given consent.
Under the Federal Magistrate Judges Act [“Act”], a Magistrate Judge’s jurisdiction may arise through the consent of the parties. See 28 U.S.C. § 636(c). It follows; lack of consent denies the Magistrate Judge discretion, hence all decisions issuing forth are void.
“[S]o long as consent [to Magistrate Judge jurisdiction] is clear and unambiguous, it is effective.” In re Search of Scranton Hous. Auth., 487 F.Supp.2d 530, 535 (M. D. Pa. 2007); see also Roell v. Withrow, 538 U.S. 580, 591 (2003) (consent may be inferred from parties’ actions).
Petitioner filed a no-consent form, where she clearly expressed her intention not to have the Magistrate Judge hear the case. It follows; Petitioner did consent to the Magistrate Judge, either voluntarily or involuntarily.
Petitioner refers this Court to Roell, where the U.S. Supreme Court provided that consent (or lack of it) may be inferred from parties’ actions. Since Petitioner never consented to the Magistrate Judge’s jurisdiction, she has no obligation to obey a void court order. Notably, the fact that Petitioner never consented to the Magistrate Judge’s jurisdiction voids all of the Magistrate Judge’s orders, including the two orders that are subject of this Petition.
Judge Blumenfeld of the District Court is also blameworthy for his conduct in referring the case to the Magistrate Judge yet Petitioner had filed a no-consent.
II. The Court of Appeal Judge, the Magistrate Judge, and Judge Blumenfeld abused the Court’s discretion when they failed to follow the law
This Honorable Court has previously held that a district court abuses its discretion when it makes an error of law. See Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (“A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law…”).
The first step of the abuse of discretion test is to determine de novo whether the trial court identified the correct legal rule to apply to the relief requested. If the trial court failed to do so, it abused its discretion. See U.S. v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009).
The second step of the abuse of discretion test is to determine whether the trial court’s application of the correct legal standard was (1) “illogical,” (2) “implausible,” or (3) without “support in inferences that may be drawn from the facts in the record.” Anderson v. City of Bessemer City, N.C., 470 U.S. 577, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). If any of these three apply, only then is the reviewing Court able to have a “definite and firm conviction” that the trial court reached a conclusion that was a “mistake” or was not among its “permissible” options, and thus that it abused its discretion by making a clearly erroneous finding of fact. See U.S. v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009).
In the instant case, the Court of Appeal and the District Court totally failed to apply 28 U.S.C. § 636(b) and (c). The first test in Hinkson required the Court to apply the correct legal rule. At the District Court, the Magistrate Judge was aware that Petitioner had never consented to her jurisdiction over the case. However, the Magistrate Judge disregarded said fact and went ahead to preside over the case absent Petitioner’s consent. Judge Blumenfeld of the District Court is also blameworthy for his conduct in referring the case to the Magistrate Judge yet Petitioner had filed a no-consent.
At the Court of Appeal, the Court also disregarded the basis of Petitioner’s appeal, which was the issue of the lack of consent. The Court of Appeal just relied on procedural rules regarding the appealability of interlocutory orders of the District Court. Had the Court of Appeal considered the appeal, it would have noted that the Magistrate Judge lacked jurisdiction to preside over the case and issue orders, due to want of Petitioner’s consent.
It is Petitioner’s contention that the Court of Appeal also abused its discretion when it failed to apply 28 U.S.C. § 1292(b), which provides in pertinent part as follows:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.
The Court of Appeal would have at least considered the merits of Petitioner’s appeal, and applied 28 U.S.C. § 1292(b), which provided the Court discretion to allow an interlocutory appeal.
Assuming arguendo, in the event this Court holds that the Magistrate Judge and the Court of Appeal Judge met the first test in Hinkson, the second test was not met. Notably, the Magistrate Judge’s and the Court of Appeal Judge’s decisions were not supported by inferences drawn from the facts in the record. The record clearly shows Petitioner’s no-consent form. This shows that Petitioner had withheld her consent. She was therefore not bound by any decision of the Magistrate Judge.
III. It is a violation of a judge’s oath of office for the judge to violate the law
Each justice or judge of the United States takes the following oath or affirmation before performing the duties of his office:
“I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”
See 28 U.S. Code § 453.
The foregoing oath obligates judges to administer justice impartially, and to respect all laws of the United States.
The conduct of Alka Sagar (the Magistrate Judge), Judge Blumenfeld of the District Court, and the Court of Appeal Judge, amount to a violation of the judges’ oaths of office. The judges swore to protect all laws of the United States. However, the Judges disregarded 28 U.S.C. § 636(c) et seq.
IV. Justice Philip abused his discretion when he failed to act upon Judge Blumenfeld and Magistrate Judge Alka Sagar’s violation of their oaths of office
The first step of the abuse of discretion test is to determine de novo whether the trial court identified the correct legal rule to apply to the relief requested. If the trial court failed to do so, it abused its discretion. See U.S. v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009).
The second step of the abuse of discretion test is to determine whether the trial court’s application of the correct legal standard was (1) “illogical,” (2) “implausible,” or (3) without “support in inferences that may be drawn from the facts in the record.” Anderson v. City of Bessemer City, N.C., 470 U.S. 577, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).
With regard to the first step in Hinkson, Chief Judge Philip failed to consider his fellow judge’s violation of 28 U.S.C. § 636(c) et seq. The chief judge also failed to consider his fellow judges’ violation of their oaths of office to protect the US Constitution. The chief judge was made aware of Petitioner’s concerns over the District Court’s failure to consider her no-consent. However, the chief judge has been silent while Petitioner is being subjected to a misapplication of the law by said District Court judges. At least, the chief judge, as the head of the judges in the Central District of California, would have assigned different judge to hear Petitioner’s case. However, the Chief Judge never did anything to address the situation.
Next, the Chief Judge failed to consider the facts of the case. Petitioner had expressly withheld her consent to Magistrate Judge hearing the case. The Magistrate Judge therefore lacked jurisdiction over the case. The foregoing facts themselves speak to the Chief Judge’s abuse of his discretion.
V. There is a need to give further guidelines on interlocutory appeals based on 28 U.S.C. § 636(c), et seq.
This Court can give special rules under 28 U.S.C. § 1292(e). Restricting appellate review to ‘final decisions’ prevents the debilitating effect on judicial administration caused by piecemeal appeal disposition of what is, at practical consequence, but a single controversy.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170 (1974).
There is an urgent need for this Honorable Court to pronounce itself on the appealability of interlocutory orders that are based on challenges grounded on 28 U.S.C. § 636(c)et seq. From the facts in the instant case, it is evident that the rights of litigants are being violated when Magistrate Judges disregard parties’ no-consents, and proceed to issue Orders that bind the parties. Such orders, by virtue of being interlocutory are always dismissed by the Court of Appeals.
If this Honorable Court does not provide precedent or provide special rules under 28 U.S.C. § 1292(e), the violation of the rights of parties giving consent under 28 U.S.C. § 636(c)et seq, would continue.
CONCLUSION & PRAYER FOR RELIEF
For the foregoing reasons, the petition for a writ of certiorari should be granted. Petitioner also prays for any further relief this Court may deem just.
Respectively submitted this day of __________ 2023:
________________________
Eun Jung Lim
PROOF OF SERVICE
I, EUN JUNG LIM, do swear or declare that on this date, _________, 2023, as required by Supreme Court Rule 29, I have served the enclosed PETITION FOR A WRIT OF CERTIORARI on each party to the above proceeding or that party’s counsel, and on every other person required to be served, by depositing an envelope containing the above documents in the United States mail properly addressed to each of them and with first-class postage prepaid, or by delivery to a third-party commercial carrier for delivery within 3 calendar days.
The names and addresses of those served are as follows:
[ENTER ADDRESSES]
I declare under penalty of perjury that the foregoing is true and correct.
Executed on _______, 20_____
________________________
Eun Jung Lim
APPENDIX
Appendix A
(Order of the U.S. Court of Appeals for the Ninth Circuit in No. 23-55178)
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