Aemer K.C. El v. , 553 F. App'x 113 ( 2014 )

ALD-117-E NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-1021
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IN RE: AEMER K. C. EL,
Petitioner
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On a Petition for Writ of Mandamus from the
United States District Court for the District of New Jersey
(Related to D.N.J. Civ. No. 1-12-cv-07750)
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Submitted Pursuant to Rule 21, Fed. R. App. P.
January 9, 2014
Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges
(Opinion filed: January 27, 2014)
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OPINION
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PER CURIAM
We recently detailed the procedural history of Aemer K. C. El‟s District Court
action in El v. Wehling, No. 13-3637, 2013 WL 6821490 (3d Cir. Dec. 27, 2013). To
summarize, El filed a lengthy and rambling complaint in December 2012 that included a
critique of this country‟s drug policy, citations to religious texts of the Moorish Empire,
and references to a search of his home and his subsequent arrest and prosecution. The
District Court dismissed the complaint for failure to comply with Rule 8(a)(2) of the
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Federal Rules of Civil Procedure. The District Court subsequently denied El‟s four
motions for leave to amend on the basis that the proposed amendments did not comply
with Rule 8(a)(2) either. El took an appeal from the fourth denial, and we vacated the
District Court‟s order on December 27, 2013. As we noted then (without expressing any
view on the merits of the complaint), El‟s amended pleading met the Rule 8(a)(2)
standard. (He presented seven claims of malicious prosecution and conspiracy to commit
civil rights violations, as well as claims of unlawful search and seizure and illegal arrest,
under a liberal construction of the complaint.)
On January 6, 2014, before the District Court could take any action in compliance
with our ruling, El filed a petition for a writ of mandamus. El cited, inter alia, 28 U.S.C.
§ 1651; Rule 21 of the Federal Rules of Appellate Procedure; the Crime Victims‟ Rights
Act, 18 U.S.C. § 3771; Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971); and various statutory and constitutional provisions. In
the approximately 80-page petition,1 El presents far-ranging argument. He touches on
such matters as the scope of admiralty and maritime jurisdiction, the interpretation of
treaties, and the history and identity of the Moors. He complains of a purported policy of
administrative termination by another District Judge of a type of filing by members of the
1
Acknowledging its length, El filed a “motion for leave to file petition in excess of the 30
page limit set forth pursuant to F.R.A.P. Rule 27.” Because Rule 27 (which relates to the
length of motions, not petitions for writs of mandamus) is inapplicable, we construe his
motion as a motion for permission to file a petition longer than that allowed under Rule
21(d). So construed, we grant it in this instance. We consider the entirety of El‟s
petition, including its exhibits.
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Murakush Group who cite the Barbary Treaties, and rulings by other District Judges in
cases in which he is not a party.
In his petition, El lists nine requests for relief: (1) a writ to compel the District
Court to process a criminal complaint for peonage (seemingly related to El‟s arrest after a
search of another‟s home);2 (2) relief under the Religious Freedom Restoration Act, 42
U.S.C. § 2000bb-1(c)3; (3) a clarification of the fundamentals of the Supremacy Clause
relating to treaties for the District Court‟s benefit; (4) a clarification and reaffirmation of
the Moorish Treaties; (5) a prohibition of any bar on Moorish plaintiffs‟ invocation of
their rights under treaties; (6) a declaration that a bar on invocations or references to
Islamic treaty, covenant, and contractual obligations burdens the free exercise of religion;
(7) a prohibition of classification of Moorish plaintiffs as “sovereign citizens”; (8) a writ
to compel the District Court to comply with Article Six of the U.S. Constitution; and (9) a
writ to compel a transfer of his case from the Camden Vicinage to the Trenton or Newark
Vicinage.
We will deny El‟s petition and associated requests. To the extent that El petitions
for a writ of mandamus (or a writ of prohibition) independently of 18 U.S.C. § 3771, see,
e.g., Petition at 6 (citing 28 U.S.C. § 1651), we conclude that he does not overcome the
2
In relation to this request, El contends that he has been denied all rights guaranteed by
the Crime Victims‟ Rights Act insomuch as the alleged peonage crime has been ignored
by the District Court and the Department of Justice.
3
Seemingly in relation to this request, El argues that the seizure of his papers and
property not only violated the Fourth Amendment but also burdened his exercise of
religion.
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high hurdle for such relief. Mandamus and prohibition are extraordinary remedies. See
Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976); United States v. Santtini, 963 F.2d
585, 593-94 (3d Cir. 1992) (noting also that the requirements are the same for obtaining
either writ). Within the discretion of the issuing court, the writs traditionally may be
“used . . . only „to confine an inferior court to a lawful exercise of its prescribed
jurisdiction or to compel it to exercise its authority when it is its duty to do so.‟” Kerr,
426 U.S. at 402 (citations omitted). To obtain such relief, a petitioner must show that
“(1) no other adequate means exist to attain the relief he desires, (2) the party‟s right to
issuance of the writ is clear and indisputable, and (3) the writ is appropriate under the
circumstances.” Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam) (internal
quotation marks and citation omitted). Mandamus is not a substitute for appeal. See
Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004) (citations omitted); Madden v.
Myers, 102 F.3d 74, 79 (3d Cir. 1996).
El‟s District Court action is essentially at its inception. At the time of the filing of
El‟s mandamus petition, there is no District Court action outside its prescribed
jurisdiction that we must rein in nor any failure by the District Court to exercise its
authority that we must correct. Ultimately, El will have the remedy of an appeal if he
disagrees with the outcome in his District Court case. He does not have a right to an
advisory opinion by us on the merits, or lack thereof, of Moorish treaties or the other
issues he raised. Such an opinion is prohibited by Article III of the Constitution. Also, to
the extent he asks us to opine or rule on another District Judge‟s purported policy or on
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other District Court actions, he has no standing to make those requests. El also shows no
basis for a transfer of his District Court action.4
While mandamus relief is available under a different, and less demanding,
standard under 18 U.S.C. § 3771 in the appropriate circumstances, see 18 U.S.C.
§ 3771(d)(3); Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006); United
States v. Rigas, 409 F.3d 555, 562 (2d Cir. 2005), it is not available to El here. Even
assuming that El is a crime victim for whom mandamus and other relief is available
under § 3771 (a generous assumption based on the evidence he proffers regarding an
alleged violation of a federal peonage statute, see 18 U.S.C. § 3771(e) (defining “crime
victim”)), he has in no way shown that he is being deprived of the rights accorded crime
victims, see id. at § 3771(a). (He does not even explicitly seek enforcement of those
rights, relying on 18 U.S.C. § 3771 instead to win other forms of relief.) Furthermore, El
applies for relief in the wrong court.5 See id. at § 3771(d)(3).
In short, El is not entitled to mandamus or other extraordinary relief, so we will
deny his petition.6
4
To the extent that El presents a claim that the District Judge is biased or seeks a recusal
through his transfer request, we note that the record is devoid of any basis on which the
District Judge‟s impartiality could be questioned.
5
There is no evidence that he has filed a motion seeking relief in the District Court. And
we are sure that if he does, the District Court will dispose of it forthwith.
6
As we stated above, we grant his motion for relief from the page limitations.
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