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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

David James Carlson Plaintiff-Appellant

vs. Case No. 16cv765SRNBRT


Appeal No. 162793

Defendants-Appellees

County of Ramsey,
State of Minnesota

County of Anoka,
State of Minnesota

Independent School District #624 (ISD #624)


White Bear Lake, Minnesota

APPEAL FROM THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF MINNESOTA
DAVID J. CARLSON

________________________________________

PETITION FOR REHEARING EN BANC

____________________________________________________________

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TABLE OF CONTENTS

Page

STATEMENT OF PRO SE COUNSEL..5

TABLE OF CONTENTS.2

TABLE OF AUTHORITIES.......3

STATEMENT OF THE ISSUES.....6-8

ARGUMENT..9-19

CONCLUSION (RELIEF).........20

CERTIFICATE OF COMPLIANCE.21

CERTIFICATE OF SERVICE..22

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TABLE OF AUTHORITIES

CASES

Colo. River Water Conservation Dist. v. United States, 428 U.S. 800, (1976).

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)

Garcia v. San Antonio Metropolitian Transit Authority, 469 U.S. 528 (1985).

Hageman v. Barton, No. 14-3665, 8th Circuit .

Juidice v. Vail 430 U.S. 327 (1977)...

Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423

(1982).

New Orleans PUB. Serv., INC. (NOPSI) v. City Counsel, 109 S Ct. 2506 (1989)

Quackenbush v. All State INS. Co., 517 U.S. 706 (1996)..

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)

Sprint Communications, INC., v. Jacobs, 690 F 3d 864

United Mine Workers v. Gibbs, 383 U.S. 715 (1966)

Younger v. Harris, 401 U.S. 37 (1971)..............................

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STATUTES

28 U.S.C. 1331: US Code - Section 1331:

28 U.S.C 7332: US Code - Section 7332:

42 U.S.C. 1983: US Code - Section 1983:

OTHER AUTHORITIES

U.S. CONST., Art. III, Section 2:

U.S. CONST., Art VI, Clause 2:

State of Minnesota, Office of the Legislative Auditor. Evaluation Report: Guardians Ad


Litem. (1995)

The Supreme Court of Minnesota.Advisory Task Force on the Guardian Ad Litem


System: Final Report. (1996)

State of Minnesota, Office of the Legislative Auditor: Executive Summary. (1995)

The Supreme Court of Minnesota. Progress Report on Minnesotas Guardian Ad Litem


System in Response to the 1995 Minnesota Legislative Auditors Report. (2004)

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STATEMENT OF PRO SE COUNSEL

I, DAVID J. CARLSON, Pro Se party in the matter before this Honorable Court

(Carlson vs. County of Ramsey et al), express a belief--based on a reasoned, educated,

and studied professional judgment, that the Panel decision is contrary to the decisions of

the Supreme Court of the United States; and/or opinions; and/or precedents of this

nations highest court. I also strongly believe this appeal involves one or more questions

of exceptional importance that this honorable court cannot simply ignore.

Additionally, the decision of this honorable court to dismiss Mr. Carlsons entire

1983 Civil Rights appeal with essentially a paragraph stating Affirmed, is emblematic

and consistent with the unanimous U.S. Supreme Court decision handed down to the U.S.

8th Circuit Court in Sprint Communications, INC., v. Jacobs, 690 F 3d 864 regarding the

8th Circuit and Civil Rights cases that have come before it.

Equal Justice Under Law must be more than words etched on courthouse walls

around this nation--they must be the guiding pillars for which our entire judicial system

operates. Americas judicial system must protect and exude the trust and confidence of

the citizens of this Republic that we are indeed a nation of equal laws, regardless of the

amount of commas or zeros in ones bank account.

Decisions and doctrines that erode and eviscerate the peoples sacrosanct belief

that in our judiciary we are not just all created equal--but we are unequivocally treated as

equals in this nation, guaranteed to receive the same impartial lens no matter if we have

the Dream Team as presiding counsel, or, are forced to represent oneself Pro Se.

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Further, Pro Se must not mean you are granted fewer freedoms or given less civil

rights. Our Constitution prohibits bestowing certain rights and freedoms to wealthy

individuals or to a nobility class, granting them special access to our courts and the

justice system that those who are less fortunate become unable to access.

The policy of granting special favor in pleading opportunities to litigants with

counsel--then prohibiting identical litigants without counsel, is one the clearest forms of

judicial discrimination in our great country, and gives the impression that the court

system has disdain for those with less legal budgets.

There can be no asterisk next to the concept of Equal Justice Under Law--we

either have an equitable system of laws and rights, or we simply do not. This case

presents uniquely and distinctly federal issues that can only be adjudicated in the federal

system such as federal veterans medical records, rights of disabled veterans and their

sacrosanct physician/patient rights of privacy, and the rights of parents to have access to

their children.

Throughout this case Mr. Carlson has given many reasons why this case deserves

the attention of the federal court, but in the decisions of this honorable court, many if not

all of these issues remain untouched and virtually ignored.

It is disheartening to Americas wounded warriors to see the speed and intensity

of the legal community to rush to the aid of foreign immigrants to this country--the speed

of decisions that have been handed down by the federal court system, juxtaposed to the

virtual slighting of vital issues to this nations veteran community who deserve no less

than the same attention and respect being given to issues raised in the federal court

system from those wanting to come to this nation.

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STATEMENT OF THE ISSUES

Whether the Panel erred by upholding the decision of the district court that it was

prohibited from taking jurisdiction of Mr. Carlsons 1983 Civil Rights case,

primarily based off the judicially created doctrines of Rooker-Feldman and Younger

Abstention Doctrines?

Further, the Honorable Panel chose not to address the counterarguments Mr.

Carlson made that the Constitution Supremacy Clause is SUPREME, and cannot be

equaled or negated by judicially created doctrines in conflict with the belief that federal

courts have an unflagging obligation to hear cases.

Congress is constitutionally mandated to create laws, and the Judiciary is

mandated to uphold and enforce the laws, not create artificial justifications for why the

judiciary can abstain or abnegate their constitutional duties under this Republican system

of government.

The checks and balances we must depend on for our system of government to

function and maintain the confidence of the American people must be respected, and not

deferred or ignored, or only given to certain Americans with vast wealth and support, and

not others--particularly our veteran community who have fought to uphold this Republic.

With all of the evidence presented in this matter since its filing on 24 March,

2016, was the Panel justified in ignoring all of the merits of this case and responding

with a one paragraph reply that did not address in any way the merits Mr. Carlson

put forth to this honorable court to reverse its decision?

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Additionally, was the Panel right in rejecting numerous supplementary filings in

this case which added additional evidence supporting Carlsons claims, thereby editing or

omitting the record, and giving no credence or opportunity for the claims and evidence

Carlson put forth in this matter to ever see the light of day?

To deny legitimate legal evidence supporting Carlsons claims is contrary to the

principles of Equal Justice Under Law. It is not equal when you deny every supplement a

Pro Se litigant puts forth, along with denying a Pro Se litigant the same opportunity the

court affords to parties represented by counsel.

That is wholly un-American, un-Democratic, and counter to Equal Justice for all.

As Pro Se, to be equal, one must be afforded not some, BUT ALL of the same rights

given to parties with more financial resources; how can fair be anything but equal? This

concept must be unwavering in its application in our federal system, and the U.S.

Supreme Court has found the responsibility of the federal system to hear cases

unwavering.

END OF PAGE

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ARGUMENT

The Supremacy of the U.S. Constitution is absolute, and holds sway over judicially
created doctrines limiting access to federal courts.

Carlson continues to assert that there can be no higher law of the land than the

Constitution of the United States of America. The Supremacy of the U.S. Constitution is

the foundation of his case. Yet, none of the Appellees even mention the Supremacy of

the Constitution in their briefs. The Supremacy Clause states:

I. Constitution Supremacy Clause - Article VI, Clause 2 of the U.S. Constitution:

This Constitution, and the Laws of the United States which shall be made
in Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any thing in the Constitution or
Laws of any state to the Contrary notwithstanding.

Article III - Section 2 of U.S. Constitution:

Vests sole authority with Congress to create Law governing federalism.


The structure of the Constitution itself demonstrates that Congress is the body
entrusted with the task of defining the relationship between federal and state
courts.

The Supreme Court does not have the Constitutional Right to present its
own personal opinion regarding the scope of federal and state authority under the
guise of judicial opinion.

Appellees would have the Court believe that the Rooker-Feldman and Younger

Doctrines are the Alpha and the Omega of this case. They are not. Carlson asserts that

the lower courts near exclusive reliance on these doctrines amounts to an error in the

application of law.

Both doctrines are judicially created and a too-heavy reliance on them flies in the

face of the Separation of Powers Clause of the U.S. Constitution. The Constitution,

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having vested sole authority with Congress to create law regarding federalism, its

authority cannot be denied, or diminished by the judiciary.

Congress has specifically extended jurisdiction under 42 U.S.C. 1983 to the

federal courts to determine matters involving deprivations of rights secured by the

Constitution. Jurisdiction for Carlsons district court action lies within this provision of

the U.S. Code.

Pursuant to the Separation of Powers Doctrine, the judiciary cannot create

doctrines with a weight equivalent to or greater than the Constitution of the United States

of America. This is the fundamental question presented to this Court, yet none of the

Appellees felt compelled to address the issue in their briefs. Their collective failure to

even acknowledge, let alone address, the Supremacy Clause is a concession of its

absolute supreme nature in our Republic.

The defendants hang their argument on Middlesex County Ethics Committee v.

Garden State Bar Association, 457 U.S. 423 (1982), but, Sprint Communications, INC.,

v. Jacobs, 690 F 3d 864 limits applicability of Middlesex to criminal matters. Carlsons

case is not a criminal matter; therefore Middlesex cannot be said to govern this case.

Further, the Supreme Court holds in Sprint, supra, that federal courts have an

unflagging obligation to hear cases. Finally, Sprint, supra, was a unanimous decision

handed down by the U.S. Supreme Court to the U.S. 8th Circuit, directing the Court not to

decline jurisdiction under Younger v. Harris, 401 U.S. 37 (1971), merely because a state

court is considering the same subject, as exists in Carlsons district court matter.

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In Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985),

the Supreme Court declared that questions of federalism were conclusively committed by

the Constitution to a coordinate branch of government; namely, the Congress.

Thus, the Garcia Court declared federalism issues off-limits to the federal

judiciary. Garcia stands in stark contrast to Younger, and numerous legal commentators

have opined they do not see how Younger can still stand, even if the Supreme Court has

not expressly denounced it.

Further, Rooker-Feldman does not bar jurisdiction over actions alleging

independent claims arising from conduct in the underlined state proceedings.

Hageman v. Barton, No. 14-3665, 8th Circuit; and Carlson asserts that claims he has

raised in his federal complaint are, in many instances, wholly independent from these

state proceedings. Carlsons Constitutional claims, in particular, as well as his claims of

civil rights violations, are but some examples of the independent nature of his claims.

In Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, (1976),

the Supreme Court stated, only exceptional circumstances justify federal courts refusal

in deference to the States. Other cases stand for the principle that abstention abdicates

the federal judiciarys obligation to hear cases under Article III. Quackenbush v. Allstate

Ins. Co., 517 U.S. 706, 716 (1996).

In New Orleans Pub. Serv., INC (NOPSI) v. City Counsel, 109 S. Ct. 2506 (1989),

the Court went so far as to state, our cases have long supported the proposition that

federal courts lack the authority to abstain from the exercise of the jurisdiction that has

been conferred.

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Justice Brennan, dissenting in Juidice v. Vail 430 U.S. 327, 346 (1977), felt that a

misplaced attachment to principles of federalism and comity has led to an evisceration of

42 U.S. Code Section 1983.

All of the foregoing cases significantly limit Rooker-Feldman and Younger.

Appellees err in failing to acknowledge that, and appellees further err in placing these

two judicially created doctrines on high, to the point where the Supremacy of the

Constitution loses its due authority.

Such a misguided ordering of authority, which cannot be deemed correct under

our constitutional system, results in a denial of federal court access to citizens who have

valid, justiciable constitutional claims.

Carlsons rights as a disabled U.S. combat veteran, along with the immovable object
placed before the state court by the federal agency Department of Veterans Affairs
(VA), takes this matter out of a states interests, and places it squarely within the
purview of the federal courts.

Judge Nelson found a state interest in the domestic relations nature of Carlsons

case, but Appellant asserts that such a state interest is superseded by the federal question

presented through Carlsons status as a United States Armed Forces veteran. As a result

of that unique status, Carlson, as well as all United States veterans, and members of the

U.S. Armed Forces are under the exclusive authority of a federal agency; either the

Department of Veterans Affairs (VA), or the Department of Defense (DOD).

Depending on the specifics of their situation, there is continued interest by the

military in the protection of records. Veterans/Military issues present national rights,

which are not best decided by state courts.

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Additionally, due to VAs holding of Carlsons entire U.S. Marine Corps (USMC)

Military Service Records in his veterans file, combined with the fact that he possessed a

Top-Secret Security Clearance from the federal agency, the Department of the Navy,

during his missions in combat zones in Iraq and the Middle East. Some of Carlsons

duties were directed from either USMC, the Department of the Navy, DOD, or Central

Intelligence Agency (CIA).

Accordingly, there exist distinctly federal interests by numerous federal agencies

in protecting the contents of Carlsons records, release of which could possibly endanger

classified, secure, and/or Top Secret information and events. This raises further

substantial federal questions under 28 U.S.C. 1331. Consequently, Carlson makes a

very strong case herein for federal jurisdiction over his claims.

Additionally, due to the unusually transient nature of military service, military

members, veterans, and their families, cross state lines and international borders far more

frequently than the rest of the population.

This fact raises federal protection issues under the Commerce Clause of the

United States Constitution, again underscoring the substantial federal question aspect of

Carlsons jurisdictional claim.

Aside from any other claims inherent in this case, the fact that the state court was

told by the federal agency, VA, that it has no authority beyond its borders, is highlighted

by the statement from the state court that they have been directly informed by VA

counsel that state court judges do not have authority over the Department of Veterans

Affairs.

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This places an immovable federal obstacle in the matter, one that cannot be

adjudicated outside of the federal court system. In this matter in particular, state court

options either do not exist at all, or have been exhausted.

Carlson avails himself of his civil right not to turn over any and all records, and

the state court continues to deprive Carlson and his young daughters of their right to a

familial relationship; Carlson to date has not been allowed any contact with his minor

children since 11 July 2016.

This right of protection of his medical records is granted to Carlson pursuant to 28

U.S.C 7332 Confidentiality of Certain Medical Records; along with HIPAA and PIPA.

Just as all three (3) Appellees ignored the Supremacy of the United States

Constitution, so, too, did they completely ignore the federal issue of veterans and

military records and their place and protection within the federal system.

This Court is asked to take judicial notice of the fact that approximately 22

veterans commit suicide every day in this country. The issue of veterans mental health

is of critical national importance, and both former President Barack H. Obama and

President Donald J. Trump have termed this matter a national epidemic.

It is crucial that there be national uniformity and consistency of law on this issue.

To place this issue in the hands of state courts is to invite chaos.

There is a critical national interest in our veterans seeking out mental health

care, which interest is endangered by destruction of the doctor-patient privilege.

Veterans rely on their right of confidentiality and their doctor-patient privilege when

they seek care.

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If state courts can get at not just some, but any and all privileged

communications without a signed release, a fundamental privacy right long held

sacrosanct will be decimated further. Veterans will inevitably be discouraged from

seeking the mental health care they desperately need.

In view of an increased demand by veterans for VA assistance, and cognizant also

of shootings allegedly involving veterans, Appellant submits that now more than ever the

need for confidential care and treatment for veterans must be ensured and protected.

A central tenet within the VA system, as well as throughout our entire medical

and mental health system across America is the belief that conversations between

veterans and their health care providers are held in confidence.

There is a sacred trust between health care providers and patients, and this trust is

at the root of any person seeking health care who may have reservations about what could

happen down the road.

This case presents a potentially catastrophic destruction of the very confidence the

VA and medical professionals seek to have veterans understand: That they can

receive the care they need in confidentiality and in privacy, and not lose their

families and livelihoods in the process.

Ramsey County Judge Millenacker has sought not just to examine a small part, or

a specific incident, within Appellants care history, but seeks any and all records from

the VA, which include but are not limited to Appellants entire United States Marine

Corps Service Records, his VA educational records, VA vocational rehabilitation records,

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medical care, and mental health records dating back to at least 2002. Many such records

pre-date the birth of his twin daughters by several years.

The very prospect of a former spouse who may have questionable motives, and

who may have no evidentiary basis for demanding such records, being able to access

such an enormous amount of private, personal, and highly protected data stands to

decimate the confidence a veteran or person needing help would naturally expect they

possess. This leaves any and every conversation between a veteran and his or her health

care provider open to examination by a court or a former spouse.

28 U.S.C. Section 7332 sets limits on what health care information can be

divulged, how it can be divulged, and what it can--and more importantly, what it cannot--

be used for. Investigating a patient is not a valid purpose under the law and Appellant

asserts that this is precisely what is being done to him on a highly discriminatory basis,

merely because of his status as a three (3) time combat veteran of the Iraq War in the U.S.

Marine Corps infantry.

Where there are conflicts involving veterans who have served under the
Commander in Chief of the Armed Forces of the United States, a state court is not
capable of adjudicating resultant issues.

Such issues are uniquely federal, and the federal government, as the holder and

protector of VA records, has responsibility for protecting veterans relationships with

their health care providers. It also has a duty to protect the privileged nature of the data is

has collected on military, veterans, and/or their families.

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Military members, veterans, and their families, due to the nature of military life,

can be transferred from base to base, state to state, and even from country to country, but

one constant remains: these person(s) are still members of the Armed Forces of the

United States of America, under direction from the Department of Defense and the

President of the United States. Again, these facts raise the issue of protection for

veterans medical records under the Commerce Clause.

No matter what base they call home today or tomorrow, that base will be

considered sovereign U.S. territory, with the all of the rights and protections of any place

in the continental United States.

The likelihood of federal troops living in more than one state, and having records

of services in more than one state, is more probable than not. Therefore, there must be

uniformity of law on this issue, and veterans, our military, and their families must know

they have the same protections regardless if they are stationed in Minnesota, Texas, or

Guam.

It is the sole responsibility of the federal government and federal judiciary--not

any state court to ensure that this special, quasi-protected class is protected from the

actions of a state court judge who may wish to overreach.

Such judicial overreaching places in jeopardy the conversations and medical

treatment received during their time in service, and places in jeopardy the services they

and/or their families receive once they are veterans and living throughout the entire

nation, and even around the world.

Some states, including the State of Minnesota, have gone so far as to create

special state courts for veterans, thus affirming veterans unique status. In many ways,

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states, including Minnesota, have afforded veterans, military members, and their families

a quasi-protected class designation already, and Carlson asks this honorable court to

clearly declare this designation for this minority group.

Appellant has explicitly requested that this honorable court declares disabled

veterans a protected class. This request has gone ignored by the federal decisions

during this case, which is tantamount to leaving veterans on a battlefield; only the

battlefield is the judicial system, a place where veterans are at a distinct disadvantage,

especially disabled veterans who often are forced to represent themselves against

seemingly impossible odds.

There appears, however, to be conflict between states, and even between federal

circuits on veterans, medical records, and privacy. Again, when there are such conflicts

present, the federal courts must step in to adjudicate and provide clarity and uniformity to

such protected classes similar to how they did in desegregation cases.

In an analogous way, veterans issues are federal ones and they raise a

substantial federal question under Section 1331 of the United States Code. Judge

Nelson states that Appellant has an adequate opportunity to raise federal challenges in

state court, but as a practical matter, this is simply not true especially with regard to

veterans rights.

An issue of such national scale demands the full force of the federal judiciary.

This conflict highlights the arguable error in Judge Nelsons finding that Appellant has

state remedies available to him.

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With regard to our nations veterans and their health care, piecemeal state rules,

which vary from jurisdiction to jurisdiction, fall far short of the national unity and

consistency needed for such a critical area of the law.

There must be a national uniform standard, one that all military, veterans, and

their families can not only know and understand, but can unequivocally rely upon. Such

a standard can only be enforced and guaranteed through the full force and power of the

federal court system, under the supremacy of the United States Constitution.

END OF PAGE

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CONCLUSION

Throughout our nations history, when difficult issues have been presented within

our judicial system it has been the federal courts that have taken the oftentimes

uncomfortable and controversial cases, providing relief and clarity to our citizens,

enforcing equality and civil rights, and providing groundbreaking rulings that have

altered the course of American history. With millions of veterans from the wars in Iraq

and Afghanistan now returning to civilian life, once again the federal judiciary is asked to

provide protection for some of our most vulnerable citizens and their families.

As a nation of compassion, we must not turn our backs on those who have put

their lives on the line to secure our system of equity and fairness. Once again, critical

issues of national importance are brought to this court, only this time unlike landmark

equality and civil rights cases in years past, our veteran community and their right to

receive care, raise families, and receive equal justice are now under siege, and we must

not abandon our principles but rather reaffirm our commitment to our foundational

beliefs.

Dated This 6th Day of March, 2017

With Deep Respect,

David J. Carlson, M.S.

Signature of Party _________________________________________

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CERTIFICATE OF COMPLIANCE

The undersigned certifies that the foregoing Petition for Rehearing En Banc of

Appellant David J. Carlson complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B), because it contains 3,892 words, not including the parts of the brief

exempted by Fed. R. App. P 32(a)(7)(B)(iii). The undersigned further certifies that this

brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-

style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a

proportional typeface using Microsoft Office for Apple on a MacBook Air, using a 12

and 14 point font in Times New Roman. The brief and addendum had been scanned for

viruses and the brief is virus-hyphen free.

Dated: 6 March 2017

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CERTIFICATE OF SERVICE

I certify that on 6 March, 2017, the Petition for Rehearing En Banc for David J.
Carlson was filed with the Clerk of the Court by the United States Court of Appeals for
the Eighth Circuit by using the appellate CM/ECF system.

The following participants in the case are registered on CM/ECF users, and will
be served by the appellate CM/ECF System:

Mr. Scott Thomas Anderson


RUPP & ANDERSON
SUITE 1200
527 Marquette Avenue, S.
Minneapolis, MN 55402

Ms. Kristin C. Nierengarten


RUPP & ANDERSON
SUITE 2800
333 S. Seventh Street
Minneapolis, MN 55402

Mr. Andrew T. Jackola


ANOKA COUNTY ATTORNEYS OFFICE
Suite 720 2100 Third Avenue
Anoka, MN 55303-0000

Mr. Robert B. Roche


RAMSEY COUNTY ATTORNEYS OFFICE
Suite 4500
121 Seventh Place, E.
Saint Paul, MN 55101

Mr. Richard Sletten


U.S. DISTRICT COURT
District of Minnesota
202 U.S. Courthouse
300 S. Fourth Street
Minneapolis, MN 55415-0000

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