UNITED STATES COURT OF APPEALS

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Expedited Review of Motion for Clarification of This Court's October 20, 2010 Order

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
_______________ No. 10-1577 (5:09-Cv-00235-FL) ________________

PAMELA MELVIN, Plaintiff ± Appellant, v. SOCIAL SECURITY ADMINISTRATION, the UNITED STATES OF AMERICA, MICHAEL ASTRUE AND CAROLYN L. SIMMONS, Defendants ± Appellees. ________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA _________________________________________

EXPEDITED REVIEW OF MOTION FOR CLARIFICATIONOF THIS COURT¶S OCTOBER 20, 2010 ORDER OF PAMELA MELVIN _________________________________________

INTRODUCTION This Court¶s October 20, 2010 Order contains an ambiguity that Pamela Melvin, the Appellant in this case, respectfully asks this Court to resolve. In this Court¶s October 20, 2010 Order, this Court stated that Melvin was seeking to appeal the dismissal of some of her claims ³based upon the recommendation of the magistrate

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judge.´ This case and the appeal consist of two different versions of the magistrate judge¶s March 24, 2010 recommendation and Melvin did not state in her brief that she based her appeal on either of the two. This Court did not identify which of the two versions of the magistrate

judge¶s March 24, 2010 recommendation this Court has based Melvin¶s appeal. In this motion, Melvin requests this Court to identify which version. FACTUAL BACKGROUND On September 7, 2010, Melvin filed her brief asserting that she was appealing the District Court¶s order of May 13, 2010. In her brief, she presented arguments and facts supporting her assertion that the District Court Judge unjustly dismissed her first three claims for relief that were alleged as Privacy Act claims in the Complaint filed with the District Court on June 24, 2010. Melvin also appealed the dismissal of her sixth claim. In the District Court Judge¶s Order of May 13, 2010, the Judge converted Melvin¶s first three Privacy Act claims for relief into Bivens claims and dismissed the Bivens claims for not being Privacy Act claims. The Judge further falsely alleged that the magistrate judge had construed the first three Privacy Act claims asBivens claims and that he recommended that the claims be dismissed. The Judge dismissed the newly created Bivens claims for not being Privacy Act claims and upon the grounds of her alleged version of the magistrate judge¶s recommendation. The District Court Judge¶s version of the magistrate judge¶s recommendation and the recommendation that Magistrate Judge Robert Jones filed in district court on March 24, 2010, constitute two completely different recommendations. This Court¶s October 20, 2010 Order, indicates that this Court has based Melvin¶s appeal upon one of the two versions. However, this Court did not identify which version.

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In September 2010, Melvin moved this Court for a stay of this appeal until after the district court dismissed her other claims that were pending in that court. The district court judge alleged to have dismissed all claims on October 8, 2010, and again on October 15, 2010, before this Court issued its order of October 20, 2010. However, this Court dismissed Melvin¶s appeal alleging that Melvin had claims pending in district court. As a result of this Court depriving Melvin of the right of access to and due process provided by this Court, Melvin contends that in order to obtain the due process in a higher court that this court has deprived, she needs for this Court to identify which of the two versions of the magistrate judge¶s recommendation that this Court has based her appeal upon and referred to in its October 20, 2010 Order. GROUNDS SUPPORTING THIS COURT¶S DUTY TO IDENTIFY WHICH RECOMMENDATION IT HAS BASED MELVIN¶S APPEAL In theorder,this Court wrote that Melvin was seeking to appeal the dismissal of some of her claims ³based upon the recommendation of the magistrate judge.´ This Court stated: ³Pamela Melvin seeks to appeal the dismissal of some, but not all, of her civil claims, based upon the recommendation of the magistrate judge, as well as her motion for preliminary injunctive relief.´

This appeal consisted of the following two different versions of the magistrate judge¶s recommendation: (1) The first recommendation was written by Magistrate Judge Robert Jones in his document entitled Memorandum and Recommendation (M&R). This document was filed with the district court on March 24, 2010. Within his M&R of March 24, 2010, Magistrate Jones acknowledgedMelvin¶s first three claims for relief as sufficient Privacy Act claims arisingunder the maintenance provision of the Privacy Act. Magistrate Jones explicitly stated that Melvin¶s Privacy Act claims cannot be Bivens claims. Magistrate Jones further explicitly recommended that SSA be required to respond to the first PrivacyAct claim within 20 days of the court¶s order.

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(2) The second recommendation was alleged and written in the District Court Judge¶s order of May 13, 2010. In this order, the Honorable Judge Louise Flanagan alleged that Magistrate Judge Robert Jones had construed Melvin¶s first three Privacy Act claims as Bivens claims and that MagistrateJones had recommended dismissing the Bivens claim because relief under Bivensis barred by the Privacy Act. Additionally, in her May 13, 2010 Order, after converting the Privacy Act claims into Bivens claims, Judge Flanagan dismissed the firstthree claims upon the grounds of her alleged version of the magistrate judge¶s recommendation which included dismissing the Bivens claims for not being Privacy Act claims. In this Court¶s order of October 20, 2010, this Court did not identify which of the two versions of the magistrate recommendation this Court referred to when it stated that Melvin¶s appeal of the dismissal of her claims was based on the recommendation of the magistrate judge. In Melvin¶s informal and reply briefs that were filed with this Court on September 7, 2010 and October 22, 2010, Melvin stated that her appeal of the dismissal of her claims was based on the District Court Judge¶s order of May 13, 2010, that unjustly and without legal grounds converted her first three Privacy Act claims into Biven claims and fraudulently alleged that the magistrate judge did it. In the District Court Judge¶s order of May 13, 2010, the Judge

undisputedly departed from the recommendation written by Magistrate JudgeRobert Jones in his Memorandum and Recommendation that was filed in March 2010. Therefore, as a result of this departure, the magistrate judge¶s March 24, 2010 recommendation was null and Melvin was required to appeal the District Court Judge¶s order of May 13, 2010, and not the magistrate judge¶s recommendation of March 24, 2010. However, this Court¶s order of October 20, 2010, indicates that this Court is basing Melvin¶s appeal, not on the District Court Judge¶s order of May 13, 2010, but on one of the two versions of the magistrate judge¶s recommendation. Melvin has accepted this Court¶s dismissing her appeal after she had obtained an order from the district court that voluntarily dismissed all claims pending in district court as this Court explicitly and intentionally depriving Melvin due process and equal protection.
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As a result,

Melvin is petitioning the Supreme Court for a writ of certiorari. However, this Court¶s failure to identify in its October 20, 2010Order, which version of the magistrate judge¶s recommendation this Court has based Melvin¶s appeal, creates a barrier and an obstruction of Melvin¶s full right of justice and ability to fully and thoroughly appeal this Court¶s decision. The arguments, assertions and evidence that Melvin would present before a higher court upon an appeal of the Court of Appeals dismissing her appeal that is based on Magistrate Jones¶ recommendations for Privacy Act claims would be completely different from the arguments, assertions and evidence that Melvin would present for an appeal of the Court of Appeals dismissing an appeal that is based on the District Court Judge¶s creation of and alleged recommendation for Bivens claims. More importantly, the Supreme Court may require knowing and certainly would desire to know, before deciding whether to grant Melvin certiorari, which of the two recommendations this Court was referring to in its order of October 20, 2010. One of

the two versions is more dire and extreme than the other and constitutes more of a threat to our society and to our judicial system. Therefore, it is very important that this Court identifies which version. In addition to due process and the accepted, required and usual policies and course of judicial proceedings requiring this Court to provide Melvin, within an acceptable time and by mail and not via Melvin accidently discovering the order on the web, a written notice of this Court¶s October 20, 2010 Order, the due process, other protected rights of the Constitution and the accepted and required course of judicial proceedings also provide Melvin the right to receive an unambiguous order that would: provide Melvin equal protection and equal opportunity to have her appeal reviewed and accurately and fairly decided by a higher court; allow Melvin to present thorough and unambiguous arguments before the higher court; and that would not

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obstruct and impede Melvin¶s continued pursuit for justice. Melvin contends that the ambiguity that is contained in this Court¶s October of 20, 2010 Order obstructs and impedes her future pursuit for justice and guarantees a deprivation. Melvin has less than 60 days to petition the Supreme Court for a writ of certiorari. Therefore, she requests an Expedited review of this Motion for Clarification of this Court¶s October 20, 2010 Order. For the foregoing reasons, Melvin respectfully asks this Court to identify which one of the two magistrate judge¶s recommendation this Court referred to in its order of October 20, 2010, when it stated that Melvin¶s appeal of the dismissal of her claims was based on the recommendation of the magistrate judge. Melvin further asks this Court for an expedited review of this motion in order she is able to file a timely petition for a writ of certiorari with the Supreme Court. Respectfully submitted this the 26th day of November 2010.

_____________________________ Pamela Melvin

CERTIFICATE OF SERVICE

I hereby certify that on this the 26thday of November 2010, I served a copy of the foregoing Expedited Motion for Clarification of this Court¶s October 20, 2010 Order upon Social Security Administration andthe United States of American, by placing a copy of same in the U.S. Mail addressed as follow:

Mr. Edward Gray United States Attorney Office
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Eastern District of North Carolina 310 New Bern Avenue Suit 800 Federal Building Raleigh, NC 27601

____________________________________ Pamela Melvin

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