Motion to unseal court files Feb 10 2011

UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT

_______________

No. 10-2409 (5:09-CV-00235-FL)________________

PAMELA MELVIN, Plaintiff – Appellant,

v.

SOCIAL SECURITY ADMINISTRATION and the UNITED STATES OF AMERICA,

Defendants – Appellees.

________________________________________

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

_______________________________________

APPELLANT’S EXPEDITED MOTION TO UNSEAL TWO CASE FILES AND TO CORRECT BOTH FILES (CONSIDERATION BY CHIEF

JUSTICE WILLIAM B. TRAXLER Jr. REQUESTED PRIOR TO FEBRUARY 21, 2011)

_________________________________________

Pursuant to the rules and procedures established by the Judicial Conference of the United

States and the protected right of public access to judicial records, Appellant Pamela Melvin

respectfully moves this Court, Chief Justice William Traxler Jr., to unseal the case files of this

appeal, no. 10-2409, and of the first appeal of this action, no. 10-1577. Additionally, pursuant

to the prohibitions established by Congress within 18 U.S.C § 1001, Melvin also requests this

Court to remove the incorrect nature of suit “2864 S.S.I.D.” from the case files of this appeal, no.

1

10-2409 and the first appeal, no. 10-1577. Melvin specifically requests Chief Justice William

Traxler to review and to decide this motion. Melvin further requests that the Clerk and her legal

counsel, Ms. Judith Henry, do not review and decide this motion.

STATEMENT OF THE CASE

Appellant Melvin’s civil complaint consists of six claims for relief arising under the

Privacy Act, the Freedom of Information Act and the Federal Tort Claims Act. The first three

claims are alleged against the Social Security Administration (SSA) and arise under the Privacy

Act's maintenance provision; 5 U.S.C. § 552a (e) (5) and (g) (1) (C). The first claim alleges

that SSA failed to maintain in its disability claim record concerning Melvin:

a. Melvin’s five written appeals dated December 20, 2001, March 5, 2004 and July19, 2004, July 17, 2006 and July 13, 2007, that appealed SSA’s five separateand different adverse decisions; and

b. the District Court ordered instructions of April 11, 2007, in case no. 5:06-CV-306-FL (Melvin v. Astrue) that ordered Commissioner Astrue to proceed to expedited administrative reviews of the (first four) pending appeals.

The second claim alternatively alleges that if SSA made decisions on any of the five

appeals and maintained the decisions and that Melvin was sent copies of the decisions in the

record, SSA improperly maintained false information in the record. The third claim alleges that

SSA improperly maintained in the disability record a decision to terminate entitlement to

benefits and that Melvin received the decision if SSA had made that decision.

The fourth and fifth claims allege that SSA failed to produce, upon written requests, its

record and hearing tapes concerning Melvin’s disability claims as required by the Privacy Act’s

access provision and the Freedom of Information Act. The sixth claim for relief is alleged

against the United States under the Federal Tort Claims Act and alleges damaged resulting from

SSA violating the court order of April 11, 2007.

2

The seventh through ninth claims were added to this action by order of the Court on May

13, 2010. The seventh claim alleges intentional infliction of emotional distress claim against the

Commissioner of SSA for intentionally violating the April 2007 court order. The eighth and

ninth claims are civil rights claims alleged under 18 U.S.C. §1985.

On May 13, 2010, without Defendants United States and the SSA responding to the

complaint, the District Court dismissed the first, second, third and sixth claims for relief.

However, before dismissing the first three Privacy Act claims, the District Court Judge converted

those claims into Bivens claims and dismissed the claims as Bivens claims for not being Privacy

Act claims as a result of the Judge’s conversion. Without Defendants United States and SSA

responding to Melvin’s various motions, the District Court Judge denied all motions with the

exception of the motion to amend the complaint and the motion to deny Mr. Astrue’s motion to

remand. The District Court Judge also converted two motions, the motion for judgment on the

pleadings and motion for a protection order, into different motions before denying them.

On May 21, 2010, Melvin filed a notice of appeal which appealed the District Court’s

May 13, 2010 order. On May 24, 2010, she withdrew the notice but the notice was filed in this

Court of Appeals despite her motion to withdraw. On October 8, 2010, the District Court Judge

allegingly dismissed the last three claims at Melvin’s request. On October 20, 2010, this Court

dismissed the first appeal alleging (1) that Melvin had appealed some but all not of her claims

and (2) incorrectly alleging that Melvin had based her appeal on a magistrate judge’s

recommendation. On October 20, 2010, the Clerk of the District Court entered final judgment

and closed the case. On December 15, 2010, Melvin filed a notice of appeal which constituted

this second appeal.

3

STANDARD OF REVIEW

Fed. R. App. P. 27(a) instructs that a circuit judge may act alone on any motion but may

not dismiss or otherwise determine an appeal or other proceeding which requires three judges.

The Clerk and her legal counsel, Judith Henry, are precluded by the President and

Congress from preforming the duties of a judge including, but not limited to, making decisions

on an appeal and other proceedings and deciding motions that a Judge is required to decide.

The public right of access to judicial records is protected by the procedures and rules

established by the Judicial Conference of the United States, federal common law and the First

Amendment. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 55

L. Ed. 2d 570 (1978); Richmond Newspapers, Inc. v. Virginia, 44 U.S. 555 (1980); Globe

Newspapers v. Superior Court, 457 U.S. 596 (1982).

The Court’s Local Rule 25(c) requires a motion to seal before sealing a case file that it

not specifically sealed by law. A Court is without jurisdiction and acts in violation of 18 U.S.C.

§1001 when it documents in the case file that a case is a Social Security case when it is not.

ARUGMENT

A. Sealing the Case Files of the Appeals of this Case Conceals From the Public the Court Employees’ Criminal Deprivation of Rights & Altering the Basis of Appellant’s Appeal

The courts of this country recognize a general right of the public to inspect and copy

judicial records and documents. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597

(1978). The public’s right of access is a fundamental part of our judicial system and is required

by the Judicial Conference of the United States in that all court cases, unless specifically closed

by law, are required to be filed open to the public. The case files can only be sealed via motion

4

proving that an overriding interest in justice requires closure. See Nixon v. Warner

Communications, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978); In re Oliver,

333 U.S. 257, 266–68, 68 S. Ct. 499, 92 L. Ed. 682 (1948); Richmond Newspapers, Inc. v.

Virginia, 44 U.S. 555 (1980); Globe Newspapers v. Superior Court, 457 U.S. 596 (1982); United

States v. Kaczynski, 154 F.3d 930, 931 (9th Cir. 1998). All citations of law that exist and were

created among the courts in this country regarding the sealing and disclosing of court documents

and files are the direct or indirect progenies of a motion to seal, a request to a Court to deviate

from the norm. Therefore, unless a party moves to seal and an order granting a motion to seal

has been issued, the public’s right of access to a Court’s case file is protected when the case file

consists of claims alleged under the Privacy Act, the Freedom of Information Act, the Federal

Tort Claims Act and/or 18 U.S.C. §1985.

However, without a party moving to seal the case files and without this case being one

specifically closed by law, this Court of Appeals, at the direction of the Clerk, has sealed the case

files and has prohibited the public and Melvin’s access to the documents of the first appeal, no.

10-1577, and of this appeal, no. 1-2409. Melvin contends that the purpose of sealing the two

appeals is to conceal the past and future criminal acts that Court employees have and plan to

commit against Melvin.

In the Complaint filed in District Court on June 24, 2009, which is attached as Exhibit A,1

Melvin wrote and alleged six claims for relief. The first three claims are alleged under the

maintenance provision of the Privacy Act. See Compl. ¶¶ 5-7,104-106, 116-117, and 126- 127,

specifically identifying the claims under the Privacy Act’s maintenance provision statute 5

1 Because in an August 2010 decision written by Chief Justice William Traxler Jr., he indicated that evidence that is in the case file and in the complaint, the May 13, 2010 Court order and the March 24, 2010 M&R is not evidence if it is not attached to the document he is reviewing, Appellant has attached the documents including the Complaint, Court decisions and other documents as evidence. Attached to this motion is Exhibits A through I.

5

U.S.C. §552a (e) (5) and (g) (1) (C). The fourth claim is alleged under the Freedom of

Information Act and the fifth under the access provision of the Privacy Act. Compl. ¶¶ 132-141.

The sixth claim is alleged under the Federal Tort Claims Act. Compl. ¶¶ 144-154. On May 13,

2010, three claims were added. The seventh claim is an intentional infliction of emotional

distress claim resulting from the Commissioner of SSA violating the April 2007 court order.

The eighth and ninth claims are civil right claims alleged under 18 U.S.C. §1985. See pages 14-

15 of Exhibit C, District Court’s May 13, 2010 order granting leave to add three claims.

On March 24, 2010, Magistrate Judge Robert Jones filed a Memorandum and

Recommendation that is attached as Exhibit B. Magistrate Jones performed his own twisting

and converting of Melvin’s statements and claims that were written in the Complaint including,

but not limited to, his assertion that the first claim that alleges that SSA failed to maintain 5

written appeals and the 2007 Court Order in the record is the same as the second and third

claims that alleges that SSA maintained false information in the record. He further alleged to

have construed the first three Privacy Act claims as Bivens claims while at the same time

recognizing that Melvin had properly alleged the claims as Privacy Act claims. However, he

correctly concluded that the first three claims are not Bivens claims but are the Privacy Act

claims that were alleged in the complaint. His twisting and converting did not amount to his

converting Privacy Act claims into Bivens claims as the District Court Judge later alleged.

The summation of Magistrate Jones’ recommendation regarding the first three Privacy

Act claims is that: (1) the first three claims are proper and sufficient Privacy Act claims that

consist of the required elements of 5 U.S.C. §552a (g) (1) (C); (2) the Court cannot dismiss the

claims sua sponte; and (3) SSA should be allowed to respond to the claim(s). At the very top of

page 15 of the M&R, Magistrate Jones provided:

6

“ii. Maintenance Provision

Plaintiff sets forth claims for violation of the maintenance provision of the Privacy Act, 5 U.S.C. § 5S2a (e)(5), in Counts One, Two and Three of the complaint. In particular, Plaintiff alleges that the SSA failed to maintain the records it used in making its determination of Plaintiff's disability benefits and medicare insurance claims with such "accuracy, relevance, timeliness, and completeness as is necessary to assure fairness" to her in its disability benefits determination, and consequently a determination was made adverse to her. Compl." 106, 117, 127 [DE-5]; see 5 U.S.C. § 552a (g)(l )(C).”

In the very first four lines at the top of page 16, Magistrate Jones stated that the Court cannot

sua sponte dismiss the first Privacy Act claim, which is to him the first three Privacy Act claims.

“At this juncture of the litigation, there appears to be no basis on which this claim may be disposed of sua sponte by the Court. Therefore, this claim survives review of the court at this time and, for the reasons stated below, it is recommended that Defendant SSA be permitted to answer or otherwise respond to this cause of action.”

Twice on page 25 (at the very top and in the center), Magistrate Jones recommended that SSA be

allowed 20 days to respond the claim(s):

It is recommended further that Defendant Social Security Administration be allowed twenty (20) days from the date of the entry of an order on this Memorandum and Recommendation by the District Court to answer or otherwise respond to Plaintiffs cause of action arising under the maintenance provision of the Privacy Act.”

Nothing within Magistrate Jones’s M&R indicates or implies a recommendation to

dismiss any one of the first three Privacy Act claims or a recommendation that would cause any

one or all of the first three Privacy Act claims to be replaced with or reviewed as Bivens claims.

Although he alleged that the second and third Privacy Act claims were the same as the first

Privacy Act claim, that conversion and assertion was not in his Conclusion and final

recommendation and he was without authority and jurisdiction to do so. In Melvin’s objection of

April 7, 2010, she objected to his combining the second and third Privacy Act claims into the

first Privacy Act claim. SSA did not object to Magistrate Jones’ recommendation and therefore,

this Court would be unable to review any defense provided by SSA.

7

However, despite the fact that Magistrate Jones determined that the first three claims are

sufficient Privacy Act claims that the Court could not dismiss, on page 6 of the Honorable Judge

Louise Flanagan’s May 13, 2010 order that is attached as Exhibit C, she created a magistrate

judge recommendation that falsely alleged that: (1) a magistrate judge construed the first three

Privacy Act claims as Bivens claims; (2) a magistrate judge recommended dismissing the

Bivens claims because the claims were required to be Privacy Act claims; and (3) Melvin failed

to object to the magistrate judge’s replacing the claims with Bivens claims and recommending

that the Bivens claims be dismissed for not being Privacy Act claims.

On pages 6 and 7, Judge Flanagan dismissed the first three Privacy Act claims as Bivens

claims based on the false magistrate judge recommendation that she created.

“The magistrate judge construed these Fifth Amendment claims as alleging that the SSA violated her right to procedural due process by failing to maintain accurate and complete records, resulting in withholding and recovering disability benefits and Medicaid insurance from plaintiff. The magistrate judge recommended dismissing these claims, which seek monetary damages for an alleged violation of plaintiffs constitutional rights, because they are not cognizable under Bivens v. Six Unknown Named Agents of Fed. Bureua of Narcotics, 403 U.S. 388 (1971). A Bivens action can be brought only against federal agents, not against federal agencies such as the SSA. See FDIC v. Meyer, 510 U.S. 471,483-86 (1994). Moreover, the magistrate judge held that the Privacy Act provides a comprehensive remedial mechanism for such alleged constitutional violations, barring relief under Bivens. See Williams v.

Dep't of Veteran Affairs, 879 F. Supp. 578, 586-87 (E.D. Va. 1995).

After dismissing the claims at the top of page 7, in the first two lines at the top page 8,

Judge Flanagan acknowledged Magistrate Jones’ determination and recommendation that the

first three Privacy Act claims were sufficient claims that the Court could not dismiss:

“The magistrate judge found no barrier to that part of the plaintiff’s suit alleging violation of the maintenance provision, and would allow that portion of the action to proceed, ”

Later, in her conclusion, at the bottom of page 16 and at the top of page 17, Judge Flanagan

8

again states that she dismisses the first three claims.

“Plaintiff's first, second, third, and sixth causes of action are DISMISSED for lack of subject matter jurisdiction.”

Simply put, Judge Flanagan replaced Melvin’s first three Privacy Act claims with Bivens

claims and dismissed the Bivens claims for not being the very Privacy Act claims that Melvin

had written and alleged in the Complaint. Judge Flanagan also fraudulently created a magistrate

judge recommendation that she alleged replaced the Privacy Act claims with Bivens claims and

recommended that the Bivens claims be dismissed for not being Privacy Act claims. Judge

Flanagan’s May 13, 2010 order was not put out on the web and is identified on the docket only

as an “Order on Motion to Withdraw.”

On May 21, 2010, Melvin filed a notice of appeal that explicitly stated that she was

appealing the May 13, 2010 order. See Exhibit D. In the brief that she filed with this Court on

September 7, 2010, in the first appeal, no. 10-1577, Melvin wrote that she was appealing the

District Court’s May 13, 2010 order and that the appeal is based on the District Court Judge

dismissing four claims; the District Court Judge converting the first three Privacy Act claims into

Bivens clams and fraudulently alleging that a magistrate judge did it; and the District Court

Judge dismissing the claims as Bivens claims for not being very Privacy Act claims that are

written in the Complaint. See docket entry 16 of case no. 10-1577.

On October 8, 2010, Judge Flanagan allegingly dismissed the three remaining claims

pending in District Court as a result of Melvin’s September 24 and 29, , 2010 pleadings to

voluntarily dismiss those claims.

On October 20, 2010, this Court dismissed the first appeal. In the October 20, 2010

opinion, that is attached as Exhibit E, this Court stated: (1) that Melvin seeks to appeal the

9

dismissal of some but not all of her civil claims (when no claims were pending in District Court);

(2) that Melvin seeks to appeal the dismissal of some but not all of her civil claims based upon

the recommendation of the magistrate judge (when Melvin appealed the District Court Judge’s

order and not the fraudulent magistrate judge recommendation that does not exists ); and (3) that

this Court confirmed the denial of the Melvin’s motion for a protection order (that Judge

Flanagan converted into a different motion before denying it).

Court Employees Plan to Commit Crimes

Judge Flanagan did not provide Melvin prior notice that she had created a fraudulent

magistrate judge’s recommendation. The Judge did not allow Melvin opportunity to object to

the fraudulent magistrate judge’s recommendation before using it to dismiss the first three

claims. Therefore, Melvin did not object to the fraudulent magistrate judge’s recommendation

and Judge Flanagan wrote this in her May 13, 2010 order.

More importantly, because SSA did not object to Magistrate Jones’ recommendation that

SSA respond to the first Privacy Act claim, this Court would be prohibited from reviewing

SSA’s objects upon an appeal. Therefore, because the first three Privacy Act claims were

sufficient and proper Privacy Act claims, because the facts of the claims must be accepted by the

Courts as true and because SSA did not object to Magistrate Jones’ recommendation of March

24, 2010, Appellant Melvin would be entitled to relief upon the first Privacy Act claim if Court

employees did not contrive a plan and convert Melvin’s appeal into a different appeal that could

allow this Court to dismiss without a review.

When a litigant fails to file a timely written objection to a Magistrate Judge’s

Memorandum and Recommendation, the litigant is barred from receiving a de novo review by

the Court of Appeals. Therefore, by converting the basis of this appeal to one that is based on a

10

non-existing magistrate judge’s recommendation that Melvin did not object to (because she was

not given the opportunity), this Court could dismiss this appeal without this Court: (1) reviewing

the merits of Melvin’s claims; (2) determining whether the District Court Judge Flanagan, in

violation of 18 U.S.C §§1001, 1621 and 242, replaced Melvin’s first three Privacy Act claims

with Bivens claims and falsely alleged that a magistrate judge did it; (3) determining whether, in

violation of 18 U.S.C §§1001, 1621 and 242, Judge Flanagan fraudulently created a magistrate

judge’s recommendation; and (4) determining whether Melvin is entitled to relief.

Melvin contends the plan to dismiss this appeal by first converting it to an appeal that

appeals a non-existing magistrate judge’s recommendation that Melvin did not object to is the

purpose behind employees of this Court sealing the case files of the two appeals and concealing

from the public the crimes that Court employees are committing. And this plan may include the

Clerk and/or her legal Counsel reviewing and dismissing this appeal instead of three Judges.2

By altering the basis of Melvin’s appeals, using the fraudulent basis and the fraudulent

magistrate judge recommendation to dismiss the appeal, and by intentionally conspiring to deny

Melvin the right to due process, equal protection and access to this Court, Court employees have

and are planning to commit crimes that are violations of federal criminal laws including, but not

limited to:

1) 18 U.S.C. § 242. Deprivation of Rights Under Color of Law;

2) 18 U.S.C. § 245. Criminal and Willful Interference with Federally Protected Activities (a hate crime);

3) 18 U.S.C. § 241. Criminal Conspiracy against rights;

2 Evidence indicates that the Clerk reviews and dismisses the appeals of pro se plaintiffs when the appeals are required to be reviewed and dismissed by three judges. Further, evidence indicates that the Clerk, with the help of her legal counsel, Ms. Henry, reviewed and dismissed the first appeal of this case and put the names of three judges on the October 20, 2010 opinion.

11

4) 18 U.S.C § 1001. Making false statements; using false statements and writings; and falsifying, concealing, or covering up by any trick, scheme, or device a material fact before a judicial branch of the Government;

5) 18 U.S.C. § 2071. Concealment, removal, or mutilation of documents deposited with a court of the United States;

6) 18 U.S.C § 1513. Retaliating against a witness, victim, or an informant; and

7) 18 U.S.C § 1621. Making false statements while under Judicial Oath.

Congress and the United States Department of Justice have determined that no person,

not even a judge, possesses the right and authority to violate neither the federal criminal statutes

listed above nor any other criminal statute. Congress and the United States Department of

Justice have further determined that a violation of not less than one of the laws above is

punishable by a range of imprisonment up to a life term, or the death penalty, depending

upon the circumstances of the crime, and the resulting injury. See Exhibit F, the United

States Department of Justice web home page of 18 USC § 242. Individuals who commit

crimes that are punishable by imprisonment do not act to make their crimes and evidence public.

They instead, act to conceal theirs crimes and the evidence of same.

Therefore, because this case does not consists of claims required by law to be sealed, and

to prevent criminal acts from being committed against her, Melvin respectfully requests this

court to immediately unseal the case files of this appeal and the first appeal of this civil action.

B. Melvin’s Access to Case Files and the Public’s Observation and Scrutiny are Needed to Help Prevent Court Employees Form Committing Criminal Interferes with Protect Rights

The right of public access to judicial records was well established by the Supreme Court

in many of its decisions including in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580

12

n.17, 100 S. Ct. 2814, 2829 n.17 (1980). This Country’s rationale behind public access to court

records is that public monitoring of the judicial process through open court proceedings and

records (1) enhances the possibility that justice will be administered equitably and in accordance

with established procedures and laws and (2) decreases the possibilities for injustice,

incompetence, perjury and fraud. See Leucadia, Inc. v. Applied Extrusion Technologies, Inc.,

998 F.2d 157, 161 (3d Cir. 1993); United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995).

This rational was reemphasized in October 2010 in United States of America v. Holy Land

Foundation, no. 09-10875, upon an appeal regarding the sealing of documents and a court order.

The Fifth Circuit ruled that”…. trail proceedings should be subject to scrutiny by the public,’ and

that “a court must use caution in exercising its discretion to place records under seal.”

In her own words, the Clerk stated that this case is sealed because it is a Social Security

case. Despite being told that it is not, she has refused to unseal. The Clerk has documented the

nature of this case as 2863 S.S.I.D. This code identifies this case as one that seeks a juridical

review of the Commissioner’s final decision to deny Supplemental Security Income for a

disability. Melvin has never applied for nor received Supplemental Security Income and

contends this incorrect code is being used to seal the case files in order to conceal from the

public the criminal acts of Court employees and to conceal this Court’s decisions and other

documents from Melvin.

In the October 20, 2010 opinion of the first appeal, the writer of the opinion: (1)

converted Melvin’s appeal that appealed District Court Judge Louise Flanagan’s May 13, 2010

order (that did not adopt Magistrate Jones’ March 24, 2010 recommendation) into an appeal that

appealed a fraudulent magistrate judge’s recommendation that does not exist but was created by

Judge Flanagan in her May 13, 2010 order; (2) affirmed the District Court’s denial of Melvin’s

13

motion for a protection order when the denial was based on the District Court Judge converting

the motion into a completely different motion; and (3) dismissed the appeal by indicating that

Melvin had claims pending in District Court when the District Court’s October 8, 2010 order

allegingly dismissed all claims in that Court.

This Court did not send Melvin a copy of the October 20, 2010 opinion. On October 22,

2010, Melvin discovered the opinion on the web while researching the citations listed in the

District Court Judge’s September 14, 2010 order (that was also on the web) under Google and

under “Melvin v. SSA and U.S.” See Exhibit G, the October 20, 2010 opinion from the web).3

The Google site leading to the opinion stated, “New decision made in Melvin v. SSA.”

However, the information regarding the right to request a rehearing was not included in the

opinion on the web. Melvin received that information after traveling to the Clerk’s office in

Virginia in November 2010 and obtaining a complete copy of the case file.4 By the time Melvin

discovered the information, the time for filing a rehearing had expired.

On December 1, 2010, Melvin filed a motion requesting this Court to clarify the October

2010 opinion. She received no response to the motion. The Clerk neither filed the motion as a

motion nor forwarded the motion to a Judge.

In January 2011, after obtaining a Pacer account, Melvin discovered that this Court’s case

files of the two appeals of this action are sealed and the docket sheet of the first appeal reflected

a document filed at docket entry 32 that had been filed by this Court but was not sent to Melvin.

On January 18, 2011, with her motion to correct the case file of this appeal, no. 10-2409, Melvin

3 The October 20, 2010 opinion can be found on the web at http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FCO%2020101020099.xml&docbase=CSLWAR3-2007-CURR).

4 The Clerk of this court has completely sealed the case files and now requires Melvin to make an appointment to review the files in the Clerk’s office. In November 2010, the first appeal was reviewable in the Clerk’s office without an appointment but an employee of the Clerk’s office had to allow access to the case file after Melvin provided identification that she was the appellant of the case.

14

sent a letter, which is attached as Exhibit H, to the Clerk requesting a copy of the document at

docket entry 32. On January 20, 2011, via phone Melvin made a verbal request for document

32. The Clerk sent Melvin a copy of the document 32 via email which is attached as Exhibit I.

On January 20, 2011, 49 days after this Court filed the document at docket entry 32 and

35 days after Melvin paid this Court for this second appeal, Melvin received for the first time a

copy of docket entry 32 and discovered that it is a December 2, 2010 letter written by Ms. Judith

Henry, the Clerk’s legal counsel, within which Ms. Henry’s informed the court (but did not

inform Melvin because the letter was not sent to her) that Melvin would be allowed 7 days from

the date of the letter the opportunity to use the December 1, 2010 Expedited Review of Motion

for Clarification of This Court's October 20,2010 as a petition for a rehearing.

The efforts to deprive Melvin of a lawful and meaningful review of her claims and

appeals continued further evidencing a need for public access, observation and scrutiny. On

December 15, 2010, Melvin paid the Clerk of District Court $455, the cost of this appeal. On

December 20, 2010, the Clerk filed in the case file of this appeal documents (that falsely implied

that Melvin is a prisoner) that requested from Melvin $455 or a completed application to proceed

in forma pauperis with a trust account statement signed by an officer of a prison.5 On January

4, 2011, Melvin filed with this Court the District Court’s December 15, 2010 receipt of her

paying $455 and she moved for the Clerk to correct the case file to reflect this payment.

5 In the October 20, 2010 opinion of the first appeal, no. 10-1577, this Court used the identical opinion that this Court has used to dismiss several pro se prisoners’ appeals since 2005. Only the names of the appellants, the names of three judges and the nature of the cases were changed in each opinion. Evidence indicates that the Clerk, with the help of her legal Counsel, reviews and dismisses the appeals of prisoners’ who filed pro se. Many of the dismissed appeals were not Rule 45 dismissals and therefore, were required to be dismissed by three Judges. The Clerk of this Court has incorrectly indicated in the case file that Melvin is a prisoner.

15

Requiring Melvin to travel to Virginia and to make an appointment to review the case file

of this appeal while there exist no lawful ground for the case file to be sealed is a deprivation of

a right and/or a privilege and a violation of equal protection. As a result of this Court’s failure

and refusal to send Melvin documents that consist of information regarding the right to petition a

rehearing, the pro se Melvin was twice denied the right to request a rehearing and paid this Court

for two appeals. While this Court has not demonstrated lawful grounds to seal the case files

from the public and from Melvin, it has explicitly demonstrated the need to immediately disclose

to the public and to Melvin the case files.

Additionally, by this Court putting the Court’s opinions and judgments on the web and

publicizing to the world that this case exists, this Court has explicitly demonstrated its

knowledge (1) that nothing within the case files of the two appeals needs to be kept secret from

the public and more importantly, (2) that this Court is fully aware that this case is not a Social

Security case. There exists neither a statute nor rule that requires this Court to publicize on

Google its opinions and judgments. However, there is a law and requirement that prohibits this

Court from making a Social Security case public and from making information in a Social

Security case file public.

Melvin contends that this Court has sealed the case files of this appeal without lawful

grounds and has incorrectly identified this action as a Social Security case to intentionally and

criminally deprive her of the right of access to the court, right to appeal, right to a meaningful

hearing and right to equal protection under the law. Therefore, to ensure that Melvin receives

the documents filed by this Court and to help prevent members of this Court from depriving of

protected rights, Appellant Melvin respectfully requests this Court to immediately unseal the

case files of this appeal and the first appeal.

16

C. First Amendment of the Constitution of the United States and Federal Common Law Require Public Access to the Court files and Documents of this Appeal

As stated above, this civil action consisted of three Privacy Act claims alleged under the

maintenance provision, a Freedom of Information Act claims, a Privacy Act claim alleged under

the access provision, a Federal Tort Claims Act claim and three civil rights claims. Nothing

within these claims and the case files constitutes the Court sealing, sua sponte or otherwise.

The United States Courts always make accessible to the public the court records of cases

filed under the Privacy Act, the Freedom of Information Act, the Federal Tort Claims Act and 18

U.S.C. §1985. Never before has a United States Court sealed sua sponte the case file of a case

that consists of these claims and this Court has no lawful reason for doing so in this case.

Federal courts deny public access to the case files of cases that consist of these claims only via

Court order, only after a party has moved to seal and only after a party has provided legal

grounds supporting a motion to seal. No party has moved to seal the case files of this action.

And any document that consists a Social Security number, a financial account number, a date of

birth, a minor’s name and/or a taxpayers identification number can be individually sealed

without this Court sealing all documents of the case files.

The United States Court records are presumptively open to the public and the public’s

right of access to inspect and copy case file documents that do not consist of Social Security

numbers, financial account numbers, dates of birth and taxpayers identification numbers, are

protected by federal common-law. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597

(1978) (recognizing a common law right of access to judicial records and documents); United

States v. Amodeo, 44 F.3d 141 (2d Cir. 1995) (recognizing common-law right of access to

documents filed with court that relate to performance of judicial function and aid judicial

17

process); Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 662 (3d Cir. 1991)

(finding a common law right of access to documents submitted with summary judgment motion);

Rushford v. New Yorker Magazine, 846 F.2d 249, 253 (1988) (same); Publicker Indus., Inc. v.

Cohen, 733 F.2d 1059, 1066-67(1984) (finding a common law right of access extends to civil

court records); Brown & Williamson Tobacco Corp. v. Federal Trade Comm’n, 710 F.2d 1165,

1179 (1983) (recognizing “strong common law presumption in favor of public access to court

proceedings and records”).

Most federal courts, including this Court, have ruled that the First Amendment mandates

public’s right of access to civil court documents. See Stone v. University of Maryland Medical

Sys. Corp., 948 F.2d 128 (4th Cir. 1991) (documents filed as exhibits in civil court actions may

be subject to the First Amendment right of access); Brown & Williamson Tobacco Corp. v. FTC,

710 F.2d 1165 (6th Cir. 1983) (vacating the district court’s sealing of documents filed in a civil

action based on common law and First Amendment right of access to judicial proceedings);

Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) (stating that

“though its original inception was in the realm of criminal proceedings, the right of access to

judicial proceedings has since been extended to civil proceedings because the contribution of

publicity is just as important there, ” for proposition that “the right of access belonging to the

press and the general public also has a First Amendment basis”); Doe v. Santa Fe Indep. School

Dist., 933 F. Supp. 647, 648-50 (S.D. Tex. 1996) (concluding that the right of the public to

attend civil trials is grounded in the First Amendment as well as the common law); United

States v. McVeigh, 119 F.3d 806, 812 (10th Cir. 1997).

CONCLUSION

18

For the reasons stated above, Appellant Melvin respectfully requests this Court, Chief

Justice William Traxler, to unseal the case files, before February 21, 2011, of this appeal, no.

10-2409, and of the first appeal of this action, no. 10-1577, and to remove the incorrect nature of

suit “2864 S.S.I.D.” from the case files of the two appeal.

Respectfully submitted this the 10th day of February, 2011.

____________________________________ Pamela Melvin, pro se 4949 Fieldcrest Drive Fayetteville, North Carolina 28303 [email protected]

CERTIFICATE OF SERVICE

I hereby certify that on this the 10th day of January 2011, I served a copy of the foregoing

(1) Appellant’s Expedited Motion to Unseal the Two Case Files and To Correct Both Files

(Consideration by Chief Justice William B. Traxler Jr. Requested Prior to February 21, 2010)

with Exhibits A through I and (2) Appellant’s Emergency Motion for the Court to Provide the

Name of the Court Employee Who Wrote the October 20, 2010 Opinion of the First Appeal

(Consideration by Chief Justice William B. Traxler Jr. Requested Prior to February 21, 2010)

with Exhibits A through C, upon Defendant Social Security Administration and Defendant

United States of American by placing copies of same in the U.S. Mail addressed as follow:

Mr. Edward D. Gray Ms. Cassia W. Parson

19

United States Attorney Office Social Security AdministrationEastern District of North Carolina Office of General Counsel310 New Bern Avenue Room 617, Altmeyer BuildingSuit 800 Federal Building 6401 Security Boulevard Raleigh, NC 27601 Baltimore, Maryland 21235

Ms. Marian Ashely HarderSocial Security AdministrationOffice of General CounselRoom 617, Altmeyer Building6401 Security Boulevard Baltimore, Maryland 21235

____________________________________ Pamela Melvin, pro se 4949 Fieldcrest Drive Fayetteville, North Carolina 28303 [email protected]

20