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8/14/2019 Second Motion for Declaratory Judgment
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Appellant Robert M. Davidson and Appellant Vanessa E. Komar
(Appellants), representing themselves pro se, move this Court pursuant to 28
U.S.C. 2201(a) to declare the Prescription Drug User Fee Act (PDUFA)
unconstitutional, as applied to Robert M. Davidson and Vanessa E. Komar. The
PDUFA is presently found in 21 U.S.C. Sections 379g-379h. Appellants incorporate
here by reference all of the allegations found at Count Five (s 22-36) of the
Amended Complaint (Document #19) at USCA5 546-548. This Court is referred to
the Schematic of RICO Conspiracy found attached to this Motion.
The constitutionality of the PDUFA is material to Appellants Article III
standing and the question of whether Appellants stated claims under the civil RICO
statute (18 U.S.C. 1964 ( c)) for violations of 18 U.S.C. 1962 (b), ( c), and (d) against
each of the defendants in this lawsuit.
Appellants incorporate here by reference all of the relevant arguments, points,
and authorities found in Document #16 captioned Plaintiffs Response to Albany
Medical College and Anthony P. Tartaglias Motion to Dismiss pursuant to FRCP
12(B) and Incorporated Brief in Support found at USCA5 305-315, Document #45
captioned Plaintiffs Answer to Motion of Defendants Jay Grossman, Eudice
Grossman, and Bruce R. Heurlin to Dismiss Amended Complaint pursuant to FRCP
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12(B) found at USCA5 950-968, Document #47 captioned Plaintiffs Answer to
Sepracor Incs Motion to Dismiss for Failure to State a Claim found at USCA5 1059-
1067, Document #56 captioned Plaintiffs Consolidated Response found at USCA5
1498-1530, and Document #71 captioned Motion to Alter or Amend Judgment under
FRCP 59(E) and Memorandum in Support found at USCA5 1849-1873.
See U.S. Supreme Court Docket No. 04-537 found at Document #83-6, pages
39 and 40 of 40, in Case No. 4:07-cv-00471. See affidavit and Exhibits attached to
this Motion. On September 17, 2004, Davidsons filed Petition for Writ of Certiorari
before Judgment, (the First Cert. Petition) in Docket No. 04-537, a true and correct
copy of which is found attached as an Exhibit to this Motion. Certiorari was denied
on January 10, 2005. Appellants incorporate here by reference, all of the
arguments, points, and authorities found at Issues II and III of the First Cert.
Petition, which is attached as an Exhibit to this Motion.
Appellants challenge to the federal Constitutionality of the PDUFA rests on
5 Amendment equal protection grounds found in the U.S. Constitution. Appellantsth
have stated an equal protection claim at Count Five of the Amended Complaint
(Document #19 Index of Record) under both the selective enforcement theory and
the class of one theory. See Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000). Davidsons were intentionally treated differently from others similarly situated
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andthere is no rational basis for the difference in treatment. See Sioux City Bridge
Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed 340 (1923); Allegheny
Pittsburgh Coal Co. v. Commission of Webster Cty, 488 U.S. 336, 109 S.Ct. 633,
1021 L.Ed.2d 688 (1989).
Appellants have alleged and provided evidence of wholly irrational,
retaliatory, and bribery-motivatedFDA action against Davidson at Count Five, the
Exhibits attached to Document #16 at USCA5 401-402, 415-482, the Exhibits
attached to the Amended Complaint (Document #19) at USCA5 705-716, the Exhibits
attached to Document #45 at USCA5 1004-1023, and the Exhibits attached to
Document #47 at USCA5 1714-1803. SeeDeMuria v. Hawkes , 328 F.3d 704, 705 (2d
Cir. 2003);Esmail v. Macrane, 53 F.3d 176, 178-79 (7 Cir. 1995).th
Davidson was singled out for selective enforcement of the PDUFA by the
FDA and Sepracor Inc, after Davidson blew the whistle on high-enroller [Jay
Grossman] in his Letter of April 14, 1999, to Dr Antoine El Hage of FDA, and the
Affidavit filed by Robert Davidson with FDA investigator, Armando Chavez, on May
21, 1999. See 5.3, 8.32, 8.63 of the Amended Complaint at USCA5 516, 529, and
534, respectively. While the principal target of the equal protection clause is
discrimination against members of vulnerable groups, the clause protects class-of-one
plaintiffs victimized by the wholly arbitrary act. The exercise of FDA discretion
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was both intentionally discriminatory and arbitrary. Appellants have offered
evidence to suggest that Davidson was targeted by the FDA for an invidious reason
(a bribe from Sepracor Inc). SeeMach v. County of Douglas, S-99-266, Neb. 787.
FDA was motivated by a discriminatory purpose and FDA selected or reaffirmed
a particular course of action at least in part because of, not merely in spite of, its
adverse effects upon an identifiable class-of-one (a whistle-blower physician
(Davidson)).
See Document #57, captioned Appendix of Exhibits in Support of Plaintiffs
Consolidated Response at USCA5 1594-1600, 1605-1609, 1610-1623, 1624-1634,
and 1711-1713. The relationship between Appellants injuries and the defendants
RICO violations are direct (not attenuated). See Document #71 at USCA5 1852-1853
where it states,
Plaintiffs refer this Court to Justice Thomas dissenting opinion in
Anza v. Ideal Steel Supply Corp., 126 S.Ct. 1991, 1994 (2006). As the
lone dissent, Justice Thomas was able to reach the issue as to whether
reliance needs to be established as an element in a civil RICO action.
Based on Justice Thomas well-reasoned dissenting opinion, in the Anza
case, Appellants do not conclude that the holdings of the 5 Circuit U.S.th
Court of Appeals in the cases referenced in Plaintiffs Consolidated
Response (filed Document #56) at pages 11-13 have been or will be
overturned by the Supreme Court. It may be too simplistic to concludeat this time that the Supreme Court will further limit the class of
potential civil RICO plaintiffs, to only very obvious, non-subtle, direct
injuries which never involve 3 party reliance See Summit Propertiesrd
Inc. v. Hoechst Celanese Corp., 214 F.3d 556 (5 Cir. 2000); Procterth
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and Gamble Co. v. Amway Corp., 242 F.3d 539 (5 Cir. 2001);th
Sandwich Chef of Texas, Inc. v. Reliance Natl. Indemnity, 202 F.R.D.
484 (5 Cir. 2001). Justice Thomas dissenting opinion in the Anza caseth
appears to lend considerable support for target wing types of injured
Plaintiffs, maintaining their standing to bring civil RICO complaints. Itshould be apparent from the Amended Complaints in both the Northern
District of Texas (Dallas) and the Southern District of Texas (Houston),
that Plaintiffs sustained both target wing and reliance wing types
of injury to their business and property.
Plaintiffs incorporate here by reference the arguments found in Document #56
at USCA5 1498-1511 under the heading Alleged Failure to State Claim: Proximate
Cause after theAnza Case. Plaintiffs incorporate here by reference the arguments
found in Document #56 at USCA5 1514-1515 under the heading Alleged Lack of
Article III Standing. The filing of Plaintiffs Original Complaint on
February 19, 2003, in the U.S. District Court for the district of Arizona (Case No. CV
03-110-TUC FRZ) tolled the limitations period as to Counts One, Two, and Three.
SeePreveza Shipping Co. v. Sucrest Corp. , 297 F.Supp. 954 (S.D.N.Y. 1969). (when
a federal statute of limitations is involved, the federal rule is applied to the effect that
the statute of limitations is tolled when the complaint is filed).
Selective Enforcement
Selective enforcement, if based upon improper motives, can violate equal
protection. SeeLittle v. Streater, 452, 452 U.S. 1 (1981). See Gale v. North Dakota
Bd. Of Podiatric Medicine, 1997 ND 83 (1997). A statute may be held
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constitutionally invalid as applied, when it operates to deprive an individual of a
protected right. See Snowden v. Hughes, 321 U.S. 1 (1944). Davidson has stated
claims that involve his fundamental right to equality of treatment before the law (fair
legal procedures) found in the Ninth Amendment of U.S. Constitution. Because
Davidsons claims involve a fundamental right, his federal equal protection claims
are subject to de novo review. See Leonard W. Levy, Origins of the Bill of Rights,
1999, at page 254.
FDA retaliated against Davidson for an attempt to exercise ones right to
equality of treatment before the law (fair legal procedures). FDAs actions were
motivated by improper considerations. Davidson argues that he was denied equal
protection by FDA and that he was the victim of selective enforcement. Davidson
argues for certainly not the first time that his equal protection rights were violated by
selective enforcement of the PDUFA by FDA. See USCA5 1650 and USCA5 1584
for the Notification of Claim of Unconstitutionality in the First RICO Action (Case
# 03CV110TUCFRZ, captioned Davidson et al v. Vivra Inc et al) and page 25,
paragraphs 112 and 113 of Davidsons Amended Answer to First Amended
Complaint and Counterclaims in the State Action (Pima County Superior Court Case
No. 333954), respectively.
Davidson was singled-out by FDA for selective enforcement of the PDUFA.
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Davidsons have alleged and provided proof that FDAs act were motivated by
improper considerations to prevent Davidsons exercise of his fundamental right to
equality of treatment before the law (fair legal procedures). SeeBeeler v. Rounsavall,
328 F.3d 813, 817 (5 Cir. 2003);Bryan v. City of Madison, 213 F.3d 267, 277 (5th th
Cir. 2000). Appellants have alleged illegitimate animus, or ill will, on the part of the
Defendants/Appellees and FDA. Similarly situated individuals (clinical research
subinvestigators) were treated differently by FDA and Sepracor. See 28 of the
Amended Complaint at USCA5 546.
A finding of unlawful selective enforcement must be based upon an
unjustifiable standard such as an arbitrary classification. A discriminatory purpose
will not be presumed; there must be a showing of clear and intentional discrimination.
See State v. Long, 206 Neb. 446, 293 N.W.2d 391 (1980). Davidsons have offered
evidence to suggest that he was targeted by the FDA for invidious reasons. The
exercise of the FDAs discretion in enforcing the PDUFA was both discriminatory
and arbitrary. See s 8.99 and 8.100 of the Amended Complaint at USCA5 540.
Davidsons have alleged facts that would support a claim of invidious discrimination.
See s 5.10, 5.14, 5.16, 8.64, 8.65, 8.67, 8.80, 8.82-8.84, 8.86, 8.89, 29-31, and 33-35,
of the Amended Complaint. See Count Five of the Amended Complaint at 31,
where it states,
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Application of the PDUFA to the Plaintiffs was motivated by
invidiously discriminatory animus. Application of the PDUFA to the
Plaintiffs was intended to conceal the fraudulent clinical research of Jay
Grossman, Thomas B. Edwards, Albany Medical College, and Sepracor
Inc, in support of the NDA # 20-837 for Xopenex Inhalation Solution,that gained FDA approval on 3/25/99 (review was posted on 6/20/01).
Appellants have pleaded a strong equal protection case on the basis of selective
enforcement. Someone similarly situated to Davidson, but for the illegitimate
classification used by FDA, was treated differently. Illegitimate factors considered by
FDA in deciding when to enforce the PDUFA include whether the corporate research
sponsor had paid a user fee (paid a bribe to FDA), whether the principal
investigator is a high-enroller of study subjects, whether the principal investigator
is conducting multiple studies, and whether anyone at the site has blown the whistle
by raising concerns regarding patient safety, fraud, or both. See Stemler v. City of
Florence, 126 F.3d 856, 873 (6 Cir. 1997).th
Personal animus is an element of a class-of-one case. FDA was bribed by
Sepracor Inc to selectively enforce the PDUFA in support of its New Drug
Application for Xopenex Inhalational Solution. Appellants have identified specific
actions of the FDA that were both wholly arbitrary and lacking in legitimate
justification and had a concrete effect on Davidsons rights. Appellants allege that
even if the PDUFA is facially valid, the method of enforcement is in derogation of
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equal protection, if the decision to enforce is based upon illegitimate justifications
(bribery, high study subject enrollment, or whistle-blowing). Appellants class of
one case alleges a wholly irrational, retaliatory, and bribery-motivated FDA action
against a single person (Davidson).
The Supreme Court has recognized that the equal protection guarantee extends
to individuals who allege no specific class membership but are nonetheless subjected
to invidious discrimination at the hands of government officials. See Willowbrook v.
Olech, 528 U.S. 562, 564 (2000). In Olech, the Supreme Court affirmed the validity
of such class of one claims where the plaintiff alleges that she has been
intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment. See Harlen Assocs. Inc. v. Village of
Mineola, 273 F.3d 494, 499 (2d Cir. 2001);Esmail v. Macrane, 53 F.3d 176, 178-79
(7 Cir. 1995); Ciechon v. City of Chicago, 686 F.2d 511, 522-24 (7 Cir. 1982).th th
FDAs action at issue was motivated by personal animus. FDA had a malicious or bad
faith intent to injure the Davidsons.
Davidsons have provided evidence in the federal court proceeding of a
discriminatory design to favor one individual or class over another. See s 8.63-8.89
and s 22-36 of the Amended Complaint (Document #19) found at USCA5 546-548.
Davidson was treated differently from others similarly situated and that there was no
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rational basis for the difference in treatment. FDAs official acts were motivated by
improper considerations. Davidsons have alleged an improper (malevolent) motive
by FDA and Sepracor. In Willowbrook v. Olech, 120 S.Ct. 1073, 1074 (2000), the
Supreme Court explained that [o]ur cases have recognized successful equal
protection claims brought by a class of one. As we read this part of the holding, it
merely stands for the proposition that single plaintiffs may bring equal protection
claims. They need not proceed on behalf of an entire group. Davidsons Count Five
is an example of selective enforcement. SeeBryan v. City of Madison, 213 F.3d 267
(5 cir. 2000);Allreds Produce v. U.S. Dept of Agric., 178 F.3d 743, 748 (5 Cir.th th
2000); Esmail v. Macrane, 53 F.3d 176, 178-79 (7 Cir. 1995); Stern v. Tarrantth
county Hospital District, 778 F.2d 1052, 1058 (5 Cir. 1985). Davidsons allege thatth
FDAs official acts were motivated by improper considerations, such as the desire to
prevent the exercise of a constitutional right. FDA selectively used their powers
against Davidson. Davidsons have shown that FDAs acts were deliberately based
upon an unjustifiable standard, or other arbitrary classification. FDA retaliated
against Davidson for exercising his fundamental right to equality of treatment before
the law (fair legal procedures).
Discriminatory Animus
Davidsons have made a showing of clear and intentional discrimination in the
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federal court proceeding. Strict scrutiny of a classification under the PDUFA
affecting a protected class is properly invoked only where the plaintiff can show
intentional discrimination by the government. See Wisconsin v. City of New York, 517
U.S. 1 (1996). Clinical research subjects, inappropriately screened specialty practice
patients, clinical research coordinators, and clinical research subinvestigators, are
groups which are particularly vulnerable to discriminatory treatment by officers of the
FDA (acting in their personal capacity for personal financial gain) under color of the
PDUFA. The PDUFA provides corporate pharmaceutical research sponsors with a
robust statutorily-sanctioned vehicle for bribery of FDA officials.
SeeBlacks Law Dictionary where bribery is defined as,
the offering, giving, receiving, or soliciting of any item of value
to influence the actions as an official or other person in discharge of a
public or legal duty. The bribe is the gift bestowed to influence the
receivers conduct. It may be any money, good, right in action, property, preferment, privilege, emolument, object of value, advantage, or
influence of a person in an official or public capacity.
The application of the PDUFA to the Albany, NY FDA EIR of 10/22-12/23/97
by the FDA was improperly motivated. Officials of the FDA (acting in their personal
capacities) were bribed [into selectively applying the PDUFA] by Big Pharma
representatives (acting in their representative capacity), so as to facilitate expedited
review and market approval of their New Drug Applications (NDAs), while the for-
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cause investigations of the clinical research misconduct languished indefinitely. See
Sanjour v. E.P.A., 56 F.3d 85 (1995). See 8.67 of the Amended Complaint at
USCA5 535.
The expedited market approval of Xopenex, based at least in part on
fraudulent clinical research of Thomas B. Edwards, M.D., Albany Medical College,
and Sepracor, in support of Sepracors New Drug Application, was the result of a
bribe (a User Fee) paid by Sepracor to FDA. See s 5.5, 8.66, 8.67, 8.96-8.102,
10, 19, and 20, of the Amended Complaint presently before this Court.
A refusal to enforce that stems from a conflict of interest, that is the
result of a bribe, vindictiveness, retaliation, or that traces to personal or other
corrupt motives ought to be judicially remediable. SeeHeckler v. Chaney , 470 U.S.
821 (1985). Traditional principles of rationality and fair process do offer
meaningful standards and law to apply to an agencies decision not to act, and
no presumption of unreviewability should be allowed to trump these principles. See
Marshall v. Jerrico Inc., 446 U.S. 238 (1980).
See s 5.10, 5.14, 8.80-8.84, and 28-31, of the Amended Complaint (Document
#19). By delaying the publication of the FDA Tucson, AZ EIR of 5/5-6/28/99, the
PDUFA II substantially delayed the time at which Plaintiffs could begin to seek a
legal remedy against Defendants. This delay was intentional and directly targeted
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at the Plaintiffs. It was readily foreseeable that this delay would result in wasted
legal expenses, loss of current employment, loss of prospective legitimate
employment opportunities, and damage to Davidsons reputation.Appellants were
deprived of their fundamental right to equality of treatment before the law under
the Ninth Amendment of the U.S. Constitution. Appellants have alleged and
provided evidence that the FDAs acts were motivated by impermissible
considerations (bribery) and their desire to prevent Davidsons exercise of his
fundamental right to equality of treatment before the law. The delay and
extraordinary process faced by Davidson in his interaction with FDA violated
Davidsons equal protection rights. Appellants have alleged interference with a
fundamental right by FDA and Sepracor Inc, motivated by bribery.
Davidson was individually targeted for selective enforcement of the PDUFA.
There is no rational basis for the difference in treatment. Application of the PDUFA
to the Plaintiffs was motivated by invidiously discriminatory animus. Appellants have
alleged and provided evidence ofimproper motive (bribery), illegitimate animus, and
evidence of personal vindictiveness, by FDA and Sepracor towards the whistle-
blower Davidson. FDA and Sepracor Inc took affirmative steps to silence the
messenger (Davidson).
Application of the PDUFA to the Plaintiffs was intended to conceal the
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fraudulent clinical research of Jay Grossman, Thomas B. Edwards, Albany Medical
College, and Sepracor Inc, in support of the NDA # 20-837 for Xopenex Inhalation
Solution, that gained FDA approval on 3/25/99 (review was posted on 6/20/01). Time
in the marketplace is literally worth billions to Big Pharma. The User Fees in the
PDUFA are bribes paid by Big Pharma to the FDA in order to gain expedited market
approvals. Bribery is a predicate act of racketeering under 18 U.S.C. 1961. The
PDUFA can be selectively enforced by FDA whenever the whistle is blown on high-
enrollers of clinical research subjects into studies sponsored by Big Pharma in
support of multiple New Drug Applications.
Appellants allege that they have been intentionally treated differently from
others (clinical research subinvestigators) similarly situated and that there is no
rational basis for the difference in treatment. Whether the complaint alleges a class
of one or of five is of no consequence because we conclude that the number of
individuals in a class is immaterial for equal protection analysis. Appellants have
provided evidence to show that the FDAs motive in selectively enforcing the
PDUFA was to prevent or paralyze [the] exercise of [Davidsons] fundamental
constitutional right to equality of treatment before the law. Davidson attempted to
exercise his constitutionally-protected right under the Ninth Amendment to equality
of treatment before the law.
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The FDA treated Davidson differently from other similarly situated clinical
research subinvestigators because Davidson exercised his right to equality of
treatment before the law by blowing the whistle on Grossmanfor patient safety
concerns. See s 8.82 and 8.84 of the Amended Complaint at USCA5 536. The
selective treatment of Davidson by FDA and Sepracor was based on impermissible
considerations (bribery) and to inhibit and punish Davidsons exercise of his Ninth
Amendment fundamental right to equality of treatment before the law. See Document
#45 at USCA5 1006 where it states,This inspection report was delayed due to a
PDUFA report. Underline, italics, and boldface have been added for emphasis. See
8.88 of the Amended Complaint at USCA5 537, which states,
Paragraph 1, Page 1, of the FDA EIR Tucson facility on 7/6-
10/2000, a redacted copy of which was obtained through FOI by
Plaintiffs, states, This was a High Priority CDER User Fee NDA Pre-
Approval Study-Oriented Clinical Investigator Data ValidationInspection assigned by HFD-46 to audit...under CP 7348.811. Review
of the records found no deviations and no FD-483 was issued.
Appellants have shown that they have suffered actual injury in both Arizona
and Texas. Appellants have demonstrated that the Appellees conduct caused the
injury. Granting the relief requested likely would redress Appellants injury. See the
affidavit and Exhibits attached to this Motion. As an example of immediate adverse
legal interests between the parties, warranting the issuance of a declaratory judgment,
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this Court is referred to Sepracors motion to dismiss the Amended Complaint for
failure to state a claim in Case 4:07-cv-00471. See Document #38 at USCA5 775-
780.
Appellants are suffering continuing present adverse effects by reason of
serial concerted acts of concealment by the Defendants (Appellees) to this lawsuit,
targeted at the Davidsons. There exists a substantial controversy between the parties
having adverse legal interests of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment. The interests of justice will be advanced and an
adequate and effective judgment may be rendered. There is an adequate and full-
bodied record. Appellants seek a holding by this Court that the PDUFA is
unconstitutional as applied to the Appellants. The Defendants/Appellees to this
lawsuit are estopped from asserting the statute of limitations as a defense to the
Amended Complaint under the doctrines of fraudulent concealment, continuing
violation, concerted action (conspiracy), equitable tolling, regulatory estoppel, and
constitutional regulatory estoppel.
As an example of immediate adverse legal interests between the parties,
warranting the issuance of a declaratory judgment, see USCA5 1650 and USCA5
1584 for the Notification of Claim of Unconstitutionality in the First RICO Action
(Case # 03CV110TUCFRZ, captionedDavidson et al v. Vivra Inc et al) and page 25,
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paragraphs 112 and 113 of Davidsons Amended Answer to First Amended
Complaint and Counterclaims in the State Action (Pima County Superior Court Case
No. 333954), respectively. Davidson argues for certainly not the first time that his
equal protection rights were violated by selective enforcement of the PDUFA by
FDA. The First RICO Action (Case 4:03-cv-00110-FRZ) was filed on February 19,
2003. See Document #83-6 at pages 3-40 of 40, and Document #83-7 at pages 1-4 of
16, in Case 4:07-cv-00471, for unequivocal proof that Appellants have not at any
time slept on their rights. Appellants first raised their concern as to the
constitutionality of the PDUFA on February 19, 2003.
To date, no court (state or federal) has addressed the constitutionality of the
PDUFA. There is still a live and acute controversy. See Shell Oil Co. v. Noel, 608
F.2d 208, 1980-1 Trade Cas. (CCH) P 63118 (1 Cir. 1979). Appellants continue tost
seek a legal remedy forsignificantinjuries to their business and property, by reason
of the misconduct of the Defendants to this lawsuit. Those directly injured may
generally be counted on to serve as private attorneys general. See Holmes v.
Securities Investor Protection Corp., 503 U.S. 258 (1992), citingAssociated Gen.
Contractors, 459 U.S. at 542. Plaintiffs have suffered directinjuries by reasons of the
Defendants misconduct.
Sepracor Inc alleged failure to state a claim and moved the District Court for
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dismissal of the Amended Complaint under FRCP 12(b)(6) in Case 4:07-cv-00471.
See Document #38 at USCA5 775-780. Bribery is a predicate act of racketeering
under the RICO statute (18 U.S.C. 1961). The User Fees under the PDUFA are bribes.
See s 6, 8.14, 8.28, 8.66, 8.67, 8.102, 10, 18, 19, 31, and 35, of the Amended
Complaint (Document #19). This Court is especially referred to 8.14 where it states,
This assault and battery in the workplace on May 11, 1999, was
an unsuccessful attempt by Jay Grossman and others to provoke Robert
Davidson into defending himself physically. This unwitnessed assault
and battery was a carefully orchestrated attempt by Jay Grossman, and
others, acting by agreement and in concert, to shift blame for insurance
and research fraud from Jay Grossman to Robert Davidson. Their
contingency plan (should their attempt fail) called for Jay Grossman to
sue Robert Davidson (and his wife Vanessa Komar) for alleged
defamation after Davidson reported the incident to the Tucson Police
Department. Davidson was advised to make a police report on May 11,
1999, by Gayle F. Petrillo (the Vivra Tucson Office Manager). Their
contingency plan called for Grossman to use his stock ownership and
stock options in Vivra as a measure of alleged damages against the
Davidsons, should Grossman ultimately prevail in his defamation suit.Vivra knew in advance of the assault and battery in the workplace on
May 11, 1999, that Vivra would terminate Jay Grossmans
employment (for cause) under the terms of the Physician Employment
Agreement (the Agreement) of April 22, 1997. It is by means of the
stock purchase and sale that took place between Vivra Specialty
Partners of Arizona, P.C. (VSP) and Jay Grossman on or about April
22, 1997, and by means of the employee stock option plan of VSP, that
the Vivra enterprise gained control over Grossman while providing
Grossman with an interest in the Vivra enterprise. Jay Grossman isknown to have been involved in many lawsuits. See Albany county Case
#2960-91.
This Court is especially referred to Document #57 at USCA5 1711-1713 for
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a true and correct of the Minute Entry Order of November 24, 2004, where it states,
Plaintiffs seek an award of damages for financial losses incurred
in connection with the sale of Dr Grossmans medical practice and the
stock purchase and sale of Vivra stock,... and Plaintiffs are alsoawarded the sum of $2,493,921.00 for the losses in connection with the
sale of Dr Grossmans medical practice and the stock purchase and
sale,...
The linkage of Grossmans violations of the substantive RICO statute 18 USC
Section 1962 (b), ( c), and (d), and the injury to Davidsons business and property,
is thus very direct. Appellants were directly in the headlights of Grossmans unlawful
acts, not the United States. See Document #71 Motion to Alter or Amend Judgment
at USCA5 1854, where it states,
Plaintiffs seek for this court to avoid a manifest injustice by
altering or amending the Final Order and the Memorandum and
Order under FRCP 59(e). This court is referred to filed Document #45
at page 11 of 26, at lines 109, where it states, Grossmans stock
options and stock ownership in Vivra was used [as] a measure ofGrossmans alleged damages against Robert Davidson and Vanessa
Komar in the default Judgment in the State Action. Vanessa Komar was
a named Defendant in the Arizona State Action. How Vanessa Komar
was ever alleged to have defamed Jay Grossman and caused intentional
infliction of emotional distress to Jay Grossman and Eudice Grossman
is incomprehensible. Would not an attorney [of] even minimal
competence have moved for her dismissal for failure to state a claim
against Vanessa Komar? This goes to willful attorney misconduct by
MJM Contrary to footnote 3 at page 5 of the Memorandum andOrder, Vanessa Komar was never employed by Vivra and Vanessa
Komar was never a nurse at Vivra.
This lawsuit (Case 4:07-cv-00471) was timely-filed under the Texas tolling
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rule as well as the power in the federal courts to toll limitations when a potentially
valid federal interest is to be protected.
Conclusions and Relief Sought
Denial of Appellants Ninth Amendment fundamental right to equality of
treatment before the law, has been alleged. Selective enforcement has been alleged.
Invidious discrimination has been alleged. As applied to the Appellants, the PDUFA
is repugnant to the U.S. Constitution under Fifth Amendment Equal Protection.
Because Davidsons claims involve a fundamental right (equality of treatment before
the law), their federal equal protection claims are subject to de novo review.
Davidsons Notice of Appeal was timely-filed under Rule 4(a) of the Federal
Rules of Appellate Procedure. Jurisdiction on appeal is proper based upon 28 U.S.C.
1291. Any court of the United States may render a declaratory judgment based
upon 28 U.S.C. 2201 (a). The constitutionality of the PDUFA has already been
thoroughly briefed and is ripe for adjudication by this Court. Granting the relief
requested likely would redress Appellants injury. Bribery is a predicate act of
racketeering under the RICO statute. The User Fees under the PDUFA are bribes.
Appellants have stated claims under RICO as to allof the defendants/appellees.
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WHEREFORE, based upon all of the aforementioned arguments, points, and
authorities, Appellants pro se, pray for this Court to remedy ongoing violations of
constitutional law by declaring that the PDUFA is repugnant to the U.S. Constitution
as appliedto the Davidsons and therefore held by this Court to be unconstitutional,
and order such further necessary or proper relief to aid enforcement of the
judgment.
RESPECTFULLY signed, on this 7 Day of November, 2007, byth
________________________ and ______________________________
ROBERT M. DAVIDSON VANESSA E. KOMAR