Beruflich Dokumente
Kultur Dokumente
Defendants-Appellees
County of Ramsey,
State of Minnesota
County of Anoka,
State of Minnesota
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TABLE OF CONTENTS
Page
TABLE OF CONTENTS.2
TABLE OF AUTHORITIES.......3
ARGUMENT..9-19
CONCLUSION (RELIEF).........20
CERTIFICATE OF COMPLIANCE.21
CERTIFICATE OF SERVICE..22
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TABLE OF AUTHORITIES
CASES
Colo. River Water Conservation Dist. v. United States, 428 U.S. 800, (1976).
Garcia v. San Antonio Metropolitian Transit Authority, 469 U.S. 528 (1985).
Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423
(1982).
New Orleans PUB. Serv., INC. (NOPSI) v. City Counsel, 109 S Ct. 2506 (1989)
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STATUTES
OTHER AUTHORITIES
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STATEMENT OF PRO SE COUNSEL
I, DAVID J. CARLSON, Pro Se party in the matter before this Honorable Court
and studied professional judgment, that the Panel decision is contrary to the decisions of
the Supreme Court of the United States; and/or opinions; and/or precedents of this
nations highest court. I also strongly believe this appeal involves one or more questions
Additionally, the decision of this honorable court to dismiss Mr. Carlsons entire
1983 Civil Rights appeal with essentially a paragraph stating Affirmed, is emblematic
and consistent with the unanimous U.S. Supreme Court decision handed down to the U.S.
8th Circuit Court in Sprint Communications, INC., v. Jacobs, 690 F 3d 864 regarding the
8th Circuit and Civil Rights cases that have come before it.
Equal Justice Under Law must be more than words etched on courthouse walls
around this nation--they must be the guiding pillars for which our entire judicial system
operates. Americas judicial system must protect and exude the trust and confidence of
the citizens of this Republic that we are indeed a nation of equal laws, regardless of the
Decisions and doctrines that erode and eviscerate the peoples sacrosanct belief
that in our judiciary we are not just all created equal--but we are unequivocally treated as
equals in this nation, guaranteed to receive the same impartial lens no matter if we have
the Dream Team as presiding counsel, or, are forced to represent oneself Pro Se.
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Further, Pro Se must not mean you are granted fewer freedoms or given less civil
rights. Our Constitution prohibits bestowing certain rights and freedoms to wealthy
individuals or to a nobility class, granting them special access to our courts and the
justice system that those who are less fortunate become unable to access.
counsel--then prohibiting identical litigants without counsel, is one the clearest forms of
judicial discrimination in our great country, and gives the impression that the court
There can be no asterisk next to the concept of Equal Justice Under Law--we
either have an equitable system of laws and rights, or we simply do not. This case
presents uniquely and distinctly federal issues that can only be adjudicated in the federal
system such as federal veterans medical records, rights of disabled veterans and their
sacrosanct physician/patient rights of privacy, and the rights of parents to have access to
their children.
Throughout this case Mr. Carlson has given many reasons why this case deserves
the attention of the federal court, but in the decisions of this honorable court, many if not
of the legal community to rush to the aid of foreign immigrants to this country--the speed
of decisions that have been handed down by the federal court system, juxtaposed to the
virtual slighting of vital issues to this nations veteran community who deserve no less
than the same attention and respect being given to issues raised in the federal court
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STATEMENT OF THE ISSUES
Whether the Panel erred by upholding the decision of the district court that it was
prohibited from taking jurisdiction of Mr. Carlsons 1983 Civil Rights case,
primarily based off the judicially created doctrines of Rooker-Feldman and Younger
Abstention Doctrines?
Further, the Honorable Panel chose not to address the counterarguments Mr.
Carlson made that the Constitution Supremacy Clause is SUPREME, and cannot be
equaled or negated by judicially created doctrines in conflict with the belief that federal
mandated to uphold and enforce the laws, not create artificial justifications for why the
judiciary can abstain or abnegate their constitutional duties under this Republican system
of government.
The checks and balances we must depend on for our system of government to
function and maintain the confidence of the American people must be respected, and not
deferred or ignored, or only given to certain Americans with vast wealth and support, and
not others--particularly our veteran community who have fought to uphold this Republic.
With all of the evidence presented in this matter since its filing on 24 March,
2016, was the Panel justified in ignoring all of the merits of this case and responding
with a one paragraph reply that did not address in any way the merits Mr. Carlson
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Additionally, was the Panel right in rejecting numerous supplementary filings in
this case which added additional evidence supporting Carlsons claims, thereby editing or
omitting the record, and giving no credence or opportunity for the claims and evidence
Carlson put forth in this matter to ever see the light of day?
principles of Equal Justice Under Law. It is not equal when you deny every supplement a
Pro Se litigant puts forth, along with denying a Pro Se litigant the same opportunity the
That is wholly un-American, un-Democratic, and counter to Equal Justice for all.
As Pro Se, to be equal, one must be afforded not some, BUT ALL of the same rights
given to parties with more financial resources; how can fair be anything but equal? This
concept must be unwavering in its application in our federal system, and the U.S.
Supreme Court has found the responsibility of the federal system to hear cases
unwavering.
END OF PAGE
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ARGUMENT
The Supremacy of the U.S. Constitution is absolute, and holds sway over judicially
created doctrines limiting access to federal courts.
Carlson continues to assert that there can be no higher law of the land than the
Constitution of the United States of America. The Supremacy of the U.S. Constitution is
the foundation of his case. Yet, none of the Appellees even mention the Supremacy of
This Constitution, and the Laws of the United States which shall be made
in Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any thing in the Constitution or
Laws of any state to the Contrary notwithstanding.
The Supreme Court does not have the Constitutional Right to present its
own personal opinion regarding the scope of federal and state authority under the
guise of judicial opinion.
Appellees would have the Court believe that the Rooker-Feldman and Younger
Doctrines are the Alpha and the Omega of this case. They are not. Carlson asserts that
the lower courts near exclusive reliance on these doctrines amounts to an error in the
application of law.
Both doctrines are judicially created and a too-heavy reliance on them flies in the
face of the Separation of Powers Clause of the U.S. Constitution. The Constitution,
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having vested sole authority with Congress to create law regarding federalism, its
Constitution. Jurisdiction for Carlsons district court action lies within this provision of
doctrines with a weight equivalent to or greater than the Constitution of the United States
of America. This is the fundamental question presented to this Court, yet none of the
Appellees felt compelled to address the issue in their briefs. Their collective failure to
even acknowledge, let alone address, the Supremacy Clause is a concession of its
Garden State Bar Association, 457 U.S. 423 (1982), but, Sprint Communications, INC.,
case is not a criminal matter; therefore Middlesex cannot be said to govern this case.
Further, the Supreme Court holds in Sprint, supra, that federal courts have an
unflagging obligation to hear cases. Finally, Sprint, supra, was a unanimous decision
handed down by the U.S. Supreme Court to the U.S. 8th Circuit, directing the Court not to
decline jurisdiction under Younger v. Harris, 401 U.S. 37 (1971), merely because a state
court is considering the same subject, as exists in Carlsons district court matter.
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In Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985),
the Supreme Court declared that questions of federalism were conclusively committed by
Thus, the Garcia Court declared federalism issues off-limits to the federal
judiciary. Garcia stands in stark contrast to Younger, and numerous legal commentators
have opined they do not see how Younger can still stand, even if the Supreme Court has
Hageman v. Barton, No. 14-3665, 8th Circuit; and Carlson asserts that claims he has
raised in his federal complaint are, in many instances, wholly independent from these
civil rights violations, are but some examples of the independent nature of his claims.
In Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, (1976),
the Supreme Court stated, only exceptional circumstances justify federal courts refusal
in deference to the States. Other cases stand for the principle that abstention abdicates
the federal judiciarys obligation to hear cases under Article III. Quackenbush v. Allstate
In New Orleans Pub. Serv., INC (NOPSI) v. City Counsel, 109 S. Ct. 2506 (1989),
the Court went so far as to state, our cases have long supported the proposition that
federal courts lack the authority to abstain from the exercise of the jurisdiction that has
been conferred.
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Justice Brennan, dissenting in Juidice v. Vail 430 U.S. 327, 346 (1977), felt that a
Appellees err in failing to acknowledge that, and appellees further err in placing these
two judicially created doctrines on high, to the point where the Supremacy of the
our constitutional system, results in a denial of federal court access to citizens who have
Carlsons rights as a disabled U.S. combat veteran, along with the immovable object
placed before the state court by the federal agency Department of Veterans Affairs
(VA), takes this matter out of a states interests, and places it squarely within the
purview of the federal courts.
Judge Nelson found a state interest in the domestic relations nature of Carlsons
case, but Appellant asserts that such a state interest is superseded by the federal question
presented through Carlsons status as a United States Armed Forces veteran. As a result
of that unique status, Carlson, as well as all United States veterans, and members of the
U.S. Armed Forces are under the exclusive authority of a federal agency; either the
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Additionally, due to VAs holding of Carlsons entire U.S. Marine Corps (USMC)
Military Service Records in his veterans file, combined with the fact that he possessed a
Top-Secret Security Clearance from the federal agency, the Department of the Navy,
during his missions in combat zones in Iraq and the Middle East. Some of Carlsons
duties were directed from either USMC, the Department of the Navy, DOD, or Central
in protecting the contents of Carlsons records, release of which could possibly endanger
classified, secure, and/or Top Secret information and events. This raises further
very strong case herein for federal jurisdiction over his claims.
members, veterans, and their families, cross state lines and international borders far more
This fact raises federal protection issues under the Commerce Clause of the
United States Constitution, again underscoring the substantial federal question aspect of
Aside from any other claims inherent in this case, the fact that the state court was
told by the federal agency, VA, that it has no authority beyond its borders, is highlighted
by the statement from the state court that they have been directly informed by VA
counsel that state court judges do not have authority over the Department of Veterans
Affairs.
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This places an immovable federal obstacle in the matter, one that cannot be
adjudicated outside of the federal court system. In this matter in particular, state court
Carlson avails himself of his civil right not to turn over any and all records, and
the state court continues to deprive Carlson and his young daughters of their right to a
familial relationship; Carlson to date has not been allowed any contact with his minor
U.S.C 7332 Confidentiality of Certain Medical Records; along with HIPAA and PIPA.
Just as all three (3) Appellees ignored the Supremacy of the United States
Constitution, so, too, did they completely ignore the federal issue of veterans and
military records and their place and protection within the federal system.
This Court is asked to take judicial notice of the fact that approximately 22
veterans commit suicide every day in this country. The issue of veterans mental health
is of critical national importance, and both former President Barack H. Obama and
It is crucial that there be national uniformity and consistency of law on this issue.
There is a critical national interest in our veterans seeking out mental health
Veterans rely on their right of confidentiality and their doctor-patient privilege when
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If state courts can get at not just some, but any and all privileged
of shootings allegedly involving veterans, Appellant submits that now more than ever the
need for confidential care and treatment for veterans must be ensured and protected.
A central tenet within the VA system, as well as throughout our entire medical
and mental health system across America is the belief that conversations between
There is a sacred trust between health care providers and patients, and this trust is
at the root of any person seeking health care who may have reservations about what could
This case presents a potentially catastrophic destruction of the very confidence the
VA and medical professionals seek to have veterans understand: That they can
receive the care they need in confidentiality and in privacy, and not lose their
Ramsey County Judge Millenacker has sought not just to examine a small part, or
a specific incident, within Appellants care history, but seeks any and all records from
the VA, which include but are not limited to Appellants entire United States Marine
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medical care, and mental health records dating back to at least 2002. Many such records
The very prospect of a former spouse who may have questionable motives, and
who may have no evidentiary basis for demanding such records, being able to access
such an enormous amount of private, personal, and highly protected data stands to
decimate the confidence a veteran or person needing help would naturally expect they
possess. This leaves any and every conversation between a veteran and his or her health
28 U.S.C. Section 7332 sets limits on what health care information can be
divulged, how it can be divulged, and what it can--and more importantly, what it cannot--
be used for. Investigating a patient is not a valid purpose under the law and Appellant
asserts that this is precisely what is being done to him on a highly discriminatory basis,
merely because of his status as a three (3) time combat veteran of the Iraq War in the U.S.
Where there are conflicts involving veterans who have served under the
Commander in Chief of the Armed Forces of the United States, a state court is not
capable of adjudicating resultant issues.
Such issues are uniquely federal, and the federal government, as the holder and
their health care providers. It also has a duty to protect the privileged nature of the data is
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Military members, veterans, and their families, due to the nature of military life,
can be transferred from base to base, state to state, and even from country to country, but
one constant remains: these person(s) are still members of the Armed Forces of the
United States of America, under direction from the Department of Defense and the
President of the United States. Again, these facts raise the issue of protection for
No matter what base they call home today or tomorrow, that base will be
considered sovereign U.S. territory, with the all of the rights and protections of any place
The likelihood of federal troops living in more than one state, and having records
of services in more than one state, is more probable than not. Therefore, there must be
uniformity of law on this issue, and veterans, our military, and their families must know
they have the same protections regardless if they are stationed in Minnesota, Texas, or
Guam.
any state court to ensure that this special, quasi-protected class is protected from the
treatment received during their time in service, and places in jeopardy the services they
and/or their families receive once they are veterans and living throughout the entire
Some states, including the State of Minnesota, have gone so far as to create
special state courts for veterans, thus affirming veterans unique status. In many ways,
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states, including Minnesota, have afforded veterans, military members, and their families
a quasi-protected class designation already, and Carlson asks this honorable court to
Appellant has explicitly requested that this honorable court declares disabled
veterans a protected class. This request has gone ignored by the federal decisions
during this case, which is tantamount to leaving veterans on a battlefield; only the
battlefield is the judicial system, a place where veterans are at a distinct disadvantage,
especially disabled veterans who often are forced to represent themselves against
There appears, however, to be conflict between states, and even between federal
circuits on veterans, medical records, and privacy. Again, when there are such conflicts
present, the federal courts must step in to adjudicate and provide clarity and uniformity to
In an analogous way, veterans issues are federal ones and they raise a
substantial federal question under Section 1331 of the United States Code. Judge
Nelson states that Appellant has an adequate opportunity to raise federal challenges in
state court, but as a practical matter, this is simply not true especially with regard to
veterans rights.
An issue of such national scale demands the full force of the federal judiciary.
This conflict highlights the arguable error in Judge Nelsons finding that Appellant has
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With regard to our nations veterans and their health care, piecemeal state rules,
which vary from jurisdiction to jurisdiction, fall far short of the national unity and
There must be a national uniform standard, one that all military, veterans, and
their families can not only know and understand, but can unequivocally rely upon. Such
a standard can only be enforced and guaranteed through the full force and power of the
federal court system, under the supremacy of the United States Constitution.
END OF PAGE
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CONCLUSION
Throughout our nations history, when difficult issues have been presented within
our judicial system it has been the federal courts that have taken the oftentimes
uncomfortable and controversial cases, providing relief and clarity to our citizens,
enforcing equality and civil rights, and providing groundbreaking rulings that have
altered the course of American history. With millions of veterans from the wars in Iraq
and Afghanistan now returning to civilian life, once again the federal judiciary is asked to
provide protection for some of our most vulnerable citizens and their families.
As a nation of compassion, we must not turn our backs on those who have put
their lives on the line to secure our system of equity and fairness. Once again, critical
issues of national importance are brought to this court, only this time unlike landmark
equality and civil rights cases in years past, our veteran community and their right to
receive care, raise families, and receive equal justice are now under siege, and we must
not abandon our principles but rather reaffirm our commitment to our foundational
beliefs.
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CERTIFICATE OF COMPLIANCE
The undersigned certifies that the foregoing Petition for Rehearing En Banc of
Appellant David J. Carlson complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B), because it contains 3,892 words, not including the parts of the brief
exempted by Fed. R. App. P 32(a)(7)(B)(iii). The undersigned further certifies that this
brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-
style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a
proportional typeface using Microsoft Office for Apple on a MacBook Air, using a 12
and 14 point font in Times New Roman. The brief and addendum had been scanned for
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CERTIFICATE OF SERVICE
I certify that on 6 March, 2017, the Petition for Rehearing En Banc for David J.
Carlson was filed with the Clerk of the Court by the United States Court of Appeals for
the Eighth Circuit by using the appellate CM/ECF system.
The following participants in the case are registered on CM/ECF users, and will
be served by the appellate CM/ECF System:
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