UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

_______________ No. 10-577 (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 _________________________________________ REPLY BRIEF OF APPELLANT, PAMELA MELVIN _________________________________________ STATEMENT OF THE CASE Appellant¶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 arise under the Privacy Act's maintenance provision; 5 U.S.C. § 552a (e) (5) and (g) (1) (C). first claim, Melvin alleges that SSA failed to maintain in her disability claim record: a. five written appeals dated December 20, 2001, March 5, 2004 and July In the

1

19, 2004, July 17, 2006 and July 13, 2007, that appealed SSA¶s five adverse decisions; and b. the district court ordered instructions of April 11, 2007, in case no. 5:06-CV-306FL (Melvin v. Astrue) that ordered Commissioner Astrue to proceed to expedited administrative reviews of plaintiff's (first four) pending appeals. Melvin further alleges that SSA's failure to properly maintain her record resulted in SSA making adverse determinations that denied Melvin the right to appeal SSA's five adverse decisions resulting in SSA stopping her Medicare insurance and recovering disability benefits, to which she is entitled, without Due Process required by the Fifth Amendment of the Constitution. In the second claim, Melvin alternatively alleged that SSA improperly maintained in her disability record decisions on one or more of her five appeals that are alleged in the first claim for relief and that SSA did not send her a copy of the decision(s) but maintained in the record documentation that indicates that Melvin received the decision(s) when she had not. In the third claim, Melvin alleged that SSA improperly maintained in her disability record an adverse decision to terminate plaintiff¶s entitlement to benefits and maintained in the record documentation that indicates that Melvin received the decision when Melvin had not, if SSA had made the decision. The sixth claim for relief is alleged against the United States under the Federal Tort Claims Act. In this claim, she alleges that she was damaged as a resulted of SSA violating the court order of April 7, 2007, by SSA failing to afford her the right to SSA¶s administrative appeal process as required and ordered by the court.

2

SSA and the United States were served the summonses and complaint on July 7 and 8, 2010. SSA did not make an appearance before the order of May 13, 2010. The United States notified the court of its appearance on April 2, 2010 and on April 30, 2010, that defendant filed its one and only document that relates to this case. The document was a response to plaintiff¶s objections to the M&R of March 24, 2010. On May 13, 2010, without Defendants United States and SSA responding to plaintiff¶s claims, District Court dismissed plaintiff¶s first, second, third and sixth claims for relief. And

without Defendants United States and SSA responding to plaintiff¶s motions, District Court denied the motions. On September 7, 2010, Melvin filed her informal brief with this court. On September 23, 2010, SSA filed its brief. To date, Melvin has not received a brief by the United States.

I. A.

AUGMENT

The judgment dismissing the first three claims for relief should be void due to the court not having jurisdiction to create and to review Bivens claims. The Privacy Act provides federal agencies with detailed instructions for managing and

maintaining their records and provides civil relief to individuals aggrieved by an agency¶s failure to comply with the Act's requirements. The provisions under subsection (g)(1)(C) of the

Privacy Act, provides that if a federal agency fails to comply with the record-keeping requirements of (e)(5), which requires agencies to maintain records used in making determination about individuals ³with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination,´ an individual may file a civil action against the agency in district court if ³an adverse effect´ resulted from the improper maintenance of a record. If the individual demonstrates ³that the agency acted in a

3

manner which was intentional or willful,´ the individual can recover ³actual damages sustained by the individual as a result of the´ agency's violation of the Act, ³but in no case shall a person entitled to recovery receive less than the sum of $1,000.´ § 552a(g)(4)(A).

The provisions under subsection (g)(1)(C) require a plaintiff to prove that (1) a defective record (2) proximately caused (3) an adverse determination concerning him. See, e.g.,

Chambers v. U.S. Dep¶t of the Interior, 568 F.3d 998, 1007 (D.C. Cir 2009); Rogers v. BOP, 105 F. Appx 980, 983-84 (10th Cir. 2004); Perry v. BOP, 371, F.3d 1304, 1305 (11th Cir. 2004); Deters v. U.S. Parole Comm¶n, 85 F.3d 655, 657 (D.C. 1996). Therefore, a plaintiff does not have to prove that her Privacy Act claims under subsection (g)(1)(C)are not Bivens claims. Aplaintiff must instead, allege claims and facts of the three elements of (g)(1)(C) and prove same.In Melvin¶s complaint filed with district court on June 24, 2010, those three elements do exist and in the M&R of March 24, 2010, the Magistrate Judge agreed. To date, no defendant, attorney or court has disagreed with the Magistrate¶s determination.

In the order of May 13, 2010, the District Court dismissed Melvin¶s first three Privacy Act claims but not because they were insufficient Privacy Act claims. The court first converted the three Privacy Act claims intoBivens claims and afterwards, dismissed the claims as Bivens claims because they were no longer Privacy Act claims after the conversion. The District Court provided: ³A Bivens action can be brought only against federal agents, not against federal agencies such as the SSA. SeeFDIC 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.

4

Neither facts nor statute exists that would justify District Court converting the first three Privacy Act claims into Bivens claims and the court reviewing and deciding Bivens claims. The District Court clearly had neither jurisdiction toconvert Melvin¶s first three Privacy Act claims intoBivens claims nor did it have jurisdiction to review and decide Bivens claims. The Bivens claims were completely unrelated to this case and constituted a completely different civil action from the civil action Melvin filed on June 24, 2009.

Therefore, Melvin contents that because the court did not have jurisdiction to create, to review and to decide Bivens claims, the judgment dismissingher first three Privacy claims for relief is void. See United Student Aid Funds, Inc. v. Espinosa, 559 U.S. __(2010); Nemaizer v. Baker, 793 F. 2d 58 (2nd Cir. 1986); U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980);Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828);Milliken v. Meyer, 311
U.S. 457, 61 S.Ct. 339, 85 L.Ed.2d 278 (1940).

In the complaint filed in district court on June 24, 2009, Melvin asserted the court¶s jurisdiction pursuant to the Privacy Act, 5 U.S.C. § 552a (e)(5), (g)(1)(C), (d)(1), (g)(1)(B). Within the first, second and third claims for relief and in paragraphs 104, 105, 116, 117, 126, and 127, Melvin specifically wrote the words, ³In violation of 5 U.S.C. §552a(e) (5 and (g) (1) (C).´ In paragraphs 105, 117 and 127, Melvin wrote the words of the statue 5 U.S.C. §552a (g)(1)(C): ³In violation of 5 U.S.C. §552a(e) (5) and (g) (1) (C), «.. SSA has willfully and intentionally failed to maintain its record concerning plaintiff with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to plaintiff that may be made on the basis of said record, and consequently a determination was made which is adverse to plaintiff.

5

Additionally, in her documents filed in September, October and November 2009 and in February and March 2010, Melvin repeatedly asserted that her first three claims were Privacy Act claims and that she had not filed a claim under 42 U.S.C. §405 as Commissioner Astrue had asserted in his documents filed in September, October and November 2009. Melvin¶s repeated use of the Privacy Act statute and the exact wording of (g)(1)(C) evidenced her first three claims for relief to be Privacy Act claims and not Bivensclaims. Although Melvin captioned the first three claims for relief as: ³Violation of the Fifth

Amendment of the United States Constitution: Deprivation of Property Interest (Failure to Maintain Written Appeals and Court Instructions in the Record),´ the relevant language within thethreePrivacy Act claims and the writing of statute provided for the court¶s jurisdiction is plain and unambiguous. The words should be interpreted as taking their ordinary, contemporary, common meaning constituting the claims as Privacy Act claims and not Bivens claims. Melvin contends that the caption she provided was appropriate for the first three claims. Because she is litigating as pro se, defendants are more likely to make frivolous assertions such as asserting that the Privacy Act claims are barred because they seek a review of a final decision. In order to deter such frivolous defense, the complaint needed to immediately indicate at first sight that it was not seeking to reverse an adverse decision and the best way to accomplish this was to indicate that no decision had been made and that the Administrative procedures which would have led to a decision had not occurred as a result of the improperly maintained record. Therefore, the caption provided in the complaint was appropriated in all aspectsand it included the required third elementof (g)(1)(C) that resulted from the improperly maintained record ± no due process, not property interest, and no decision.

6

However, in the event that a court concludes the captions of the first three claims for relief were inappropriate for Privacy Act claims, pro se plaintiffs are given leeway in their pleadings and are not held to the same high standards of perfection as lawyers. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.)(pro se claimant¶s case should not be dismissed for mislabeling pleading, cert. denied, 439 U.S. 970 (1978); In re Sixty Seven Thousand Four Hundred Seventy Dollars, 901 F.2d 1540, 1545 (11th Cir. 1990); Pucket v. Cox, 456 F2nd 233 (6th Cir. 1972)(It was held that a pro se complaint requires a less stringent reading that one drafted by a lawyer per Justice Black in Conley v. Gibson). Further evidence supporting the claims as first three Privacy Act claims is provided in the Magistrate Judge¶s M&R of March 24. The Magistrate determined that the claims were properly alleged under the Privacy Act. He further stated that because the Privacy Act provides an adequate remedy for plaintiff's constitutional claims resulting from an agency's failure to maintain record, the claims cannot be brought as a Bivens claim. See, e.g., Patterson v. FBI, 705 F.Supp.1033, 1045 n.16 (D.N.J. 1989). He recommended that SSA respond to the first claim. SSA did not file objections to the M&R. Instead of the district court accepting the

recommendation that SSA be required to respond, district court converted the first three claims into Bivens claims and dismissed them for no longer being Privacy Act claims. Therefore, the judgment dismissing the first three claims should be voided.

B. The dismissals of the first three claims are also void because the judgment resulted from explicitFraud Upon the Court and a deprivation of Constitutional rights. Melvin contends that in addition to district court¶s lack of jurisdiction and authority to create, to review and to decideBivens claims constituting the dismissals as void, the dismissals

7

are also void because they resulted from Fraud Upon the Court and a deprivation of Melvin¶s Constitutional rights. While converting the first three Privacy Act claims into Bivens claims and then dismissing the claims because they were required to be Privacy Act claims but were no longer Privacy Act claims as a result of being converted into Bivens claims, the District Court Judge alleged that the Magistrate Judge had determined or converted the claims to be Bivens and that theMagistrate Judgehad recommended their dismissals. The judge further alleged that Melvin had not objected to this treatment of her claims. By the District Court Judge creating and deciding Bivens claims; alleging that the Bivens claims were alleged and asserted by Melvin in the complaint and/or by the Magistrate Judge when they were not;alleging that the Magistrate Judge recommended that the claims be dismissed when he had; and by alleging that Melvin had not objected to that which the

Magistrate had not determined nor recommended, theDistrict Court Judgeexplicitly demonstrated fraud upon the courts and a deliberate scheme to directly subvert the judicial process." Great Coastal Express, 675 F .2d at 1356 (citing 11 Wright &Miller , Federal Practice and Procedure § 2870, at 253 (1973)); see Budge, 544 F. Supp. at 377 (citing Rozier v. Ford Motor Co. , 573 F .2d 1332, 1338 (5th Cir. 1978)). This type of fraud occurs when "the court or a member is corrupted or influenced or where the judge has not performed his judicial function--thus where the impartial functions of the court have been directly corrupted." Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985) (en banc), cert. denied 474 U.S. 1086 (1986); see Budge, 544 F. Supp. at 377 (citing United States v. International Tel. & Tel. Corp., 349 F. Supp. 22, 29 (D. Conn. 1972), aff'd without opinion sub. nom Nader v. United States, 410 U .S. 919 (1973)).

8

As a result of this explicit Fraud, the judgment dismissing the first three claims for relief is void because Melvin was deprived ofdue process of the court and the Constitutional right of access to the court for a redress of her grievances alleged within and which constituted the first three Privacy Act claims. See Great Coastal Express, Inc. v. International Brotherhood of Teamsters, 675 F.2d 1349, 1358 (4th Cir. 1982) (citing United States v. Throckmorton, 98 U.S. 61 (1878)), cert. denied 459 U .S. 1128 (1983); Green v. Ancora-Citronelle[24ASR2d57] Corp., 577 F.2d 1380,1384 (9th Cir. 1978) (citing Pico v. Cohn, 25 P. 970,970-71 (Cal. 1891). Therefore, the judgment dismissing the first three claims should be voided.

II.

AUGRMENT

The denial of the motion for judgment and in the alternative, motion for default judgment on the pleadings is void and Melvin is entitled to relief. A. The dismissal of the first claim is void which constitute entitle to relief. Because the dismissal of the first Privacy Act claim is void due to the court¶s lack of jurisdiction to convert the claim into a Bivens claim and to review Bivensclaims and also due to Fraud Upon the Court, the first Privacy Act claims constitutes judgment in Melvin¶s favor. In the first claim, plaintiff alleges that SSA failed to maintain in plaintiff's disability claim record: c. plaintiff's five written appeals dated December 20, 2001, March 5, 2004 and July 19, 2004, July 17, 2006 and July 13, 2007, that appealed SSA¶s five adverse Decisions (Exhibit A); and d. the district court ordered instructions of April 11, 2007, in case no. 5:06-CV-306FL (Melvin v. Astrue) that order Commissioner Astrue to proceed to expedited administrative reviews of plaintiff's (first four) pending appeals.
9

SSA never responded to this claim and did not object to the M&R recommending that SSA respond to it. In the United States¶ document filed on April 21, it also provided evidence supporting the first claim. In addition to admitting that SSA violated the court order of April 2007, it further stated: ³Following the court order of April 10, 2007, with the unusual path taken by Plaintiff, there was an inadvertent failure of the Social Security Administration to act on the court order of April 10, 2007. That order from the Court was misdirecteddue to the unusual nature of construing that Order as a ³« protective filing of theAdministrative appeal reference in the July 12, 2006 notice «´ . The Social Security Administration erroneously construed the Order as dealing with Plaintiff¶s FTCA claim only.´ These statements areevidence that SSA failed to properly maintain its record, despite the fact that they also falsely allege fault on Melvin and her FTCA claim. The word ³misdirect´ is evidence that the order of April 2007 was not maintained in the record as Melvin alleged in the first claim for relief. The word means that the order was sent somewhere where it was not supposed to be and as a result, SSA violated the court order. These statements failed to include that from August 2007 thru June 28, 2008, Melvin repeatedly reminded SSA of the court order and SSA¶s responsible to act on her appeals. The statement regardingthe ³erroneously construing¶ of the order of April 2007 as dealing with Plaintiff¶s FTCA claim that SSA received on June 28, 2008, also evidenced SSA¶s failure to maintain the court order in the record. SSA¶s records of administrative tort claims do not fall within the Privacy Act records as it relates to disability benefitsand access. The two are completely different records and the court order could not have been maintained within the record of a FTCA claim that did not exist until 14 months after the order of April 2007. Further, SSA had opportunity to act on the order and the written appeals after receiving the FTCA claim. However, SSA failed to and refused to act. Thus, the document filed with district court on April
10

21, 2010, supported judgment in Melvin¶s favor on her motion for judgment on the pleadings (Commissioner Astrue¶s documents of September, October and November 2009 and the United States document of April 21, 2010 constitutes pleadings.). In the order of May 13, 2010, the district court committed fraud a second time by changing the date of Melvin¶s motion for judgment on the pleadings and the relief sought in that motion. The United States filed its document on April 21, 2010, that admitted to SSA violating the court order and provided evidence that the order was not maintain in the record. By the

district court changing the date of the motion for judgment on the pleading to April 21, 2010, it is falsely implying that the motion for judgment on the pleadings could not have asserted and included as evidence the admission made by the United States on April 21, 2010. Further, the District Court Judge alleged that the motion for judgment on the pleading sought relief in relation to the M&R. However, Melvin did not seek relief in relation to the M&R, she sought monetary relief as required by the Privacy Act and the FTCA. After altering the motion for judgment on the pleading, the District Court Judge denied the motion as docket entries 50 or 51. Melvin has not filed a motion for a docket entry. In the order of May 13,

2010, the District Court Judge did not provide legal grounds for denying Melvin¶s motion for judgment on the pleadings nor for docket entries 50 or 51. In February 2010, Melvinfiled with District Court a motion for default judgment or in the alternative, motion for judgment on the pleadings on her first, fourth, fifth and sixth claims for relief. She filed supplements to these motions on April 7 and April 30, 2010. To date,

neither SSA nor the United States has responded to those motions or to the supplements. In addition the defendants did not respond to the six claims alleged against them. The defendants

11

had from June 24, 2009 to May 13, 2010 to respond to the six claims, to provide a defense and to respond to Melvin¶s motions. However, they refused. As a result, they have admitted to the facts and claims alleged in the complaint and have waived objections to the relief sought in the motion for judgment on the pleadings and in the alternative, motion for default and they are prohibited from during so upon an appeal.See Northwestern Bank v First VirginiaBank (1984, WD Va (4th Cir)) 585 F Supp 425, 38 UCCRS 1020; Cannon v. H.K. Porter Co. (1989, ED Va (4th Cir)) 705 F. Supp 288. As a result, the defendants cannot raise an affirmative defense for the first time on appeal. See Huffman v.

Pursue, Ltd (1975) 420 US 592, 43 L Ed 2d 482, 95 S Ct 1200, reh den 421 US 971, 44 L Ed 2d 463 95 S Ct 1969. WHEREFORE, Appellant Melvin requests that this Court: 1. Reverse the dismissals of her first, second and third claims for relief; 2. Reverse the dismissal of her sixth claim for relief; 3. Grant her the relief she requested on her first claim for relief; 4. Grant her the relief she requested on her sixth claim for relief; and 5. Grant her a protection order. Respectfully submitted this the 21th dayof October 2010.

_______________________________ Pamela Melvin, pro se 4949 Fieldcrest Drive Fayetteville, NC 28303 Pamela.melvin@yahoo.com

12

CERTIFICATE OF SERVICE

I hereby certify that on this the 21thday of October 2010, I served a copy of the foregoing Reply Brief Defendantupon 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 Civil Process Clerk United States Attorney Office Eastern District of North Carolina 310 New Bern Avenue Suit 800 Federal Building Raleigh, NC 27601

____________________________________ Pamela Melvin, pro se 4949 Fieldcrest Drive Fayetteville, North Carolina 28303 Pamela.melvin@yahoo.com

13