Petition for Writ of Certiorari — Lucio Celli, Petitioner v. New York City Department of Education, et al.

Supreme Court briefJan 29, 2018

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LUCIO CELLI,

Petitioner,

NEW YORK CITY DEPARTMENT OF

EDUCATION, ANNE BERNARD, RICHARD COLE,

GRISMALDY LABOY-WILSON, COURTENAYE

JACKSON-CHASE, SUSAN MANDEL,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FOR WRIT OF CERTIORARI

Luclo CELLI, Pro Se

2743 Seymour Avenue

Bronx, New York 10469

(646) 734-3899

RECJV

AUG 1 42018

QUESTIONS PRESENTED

Issue: The issue is not Fed. Rul. of Civ. Pro. 8(a); the

issue is the plaintiff was not allowed to be the "master

of the complaint" and his rights under §35 of the Judiciary Act of 1789.

1. Cole did not conduct Lucio's evaluation' under 8J

of the CBA and the United Federation of Teacher

did not process his grievance under 8J. The allegation of Cole's alleged racial animus is intertwined

with the CBA and the Taylor Law.

Hon. Cogan stated (Appendix D): The Taylor Law

also has nothing to do with this case. Plaintiff was

either discriminated against because he is white

and/or disabled, or not. That is all there is to this

case, and if plaintiff does not stick to the facts

showing those claims and those facts only, the case

is going to be dismissed. See Doc. No. 37 in the appendix and at 17.

Hon. Cogan stated (Appendix D): "(There may be

prohibitions in the collective bargaining agreement that prohibit these kinds of actions, but

those can only be enforced by the union, and so

have nothing to do with plaintiff's case.)" See Doc.

No. 37 in the appendix and at 13.

Questions: 1)Is Hon. Cogan allowed to be "master of Lucio's complaint"? 2) Can a judge threat a

litigant with dismissal if the litigant did not take

out the facts (enactment of administrative regulations) and laws that establishes a constitutional

Mandatory subject of negotiation under the Taylor Law.

QUESTIONS PRESENTED

Continued

claim under the Contract Clause? 3) Does §1981

and Title VII prohibit impairment of contractual

obligation? 4) Does §1981 and Title VII prohibit retaliation by not honoring the collective bargaining

agreement? 5) Can the Petitioner use state law

(such as the Taylor Law) to establish the legal obligation for the collective bargaining agreement

under § 1981 and Title VII? 6) Does a state statute

and a state's constitution create a property under

the 14th Amendment?

Hon. Cogan stated: "the law does not prohibit an

employer from acting unfairly," when the Respondents enacted administrative regulations to

impair their legal obligations in the CBA, the Taylor Law, and New York State's Constitution Article

1, §17, which is a public-sector contract.

Questions: 1) Does the Contract Clause continue

to protect impairments of contracts by enacting

administration regulations to avoid legal obligations under the Taylor Law, New York State's Constitution Article 1, §17, and the City of New York's

Charter?

Lucio cited binding arbitration decisions that were

impaired because of administrative regulations.

Example, Lucio cited serval arbitration decisions

that provided the Petitioner with more rights than

what is found in Cleveland Board of Education v.

Loudermill, 470 U.S. 532 (1985) and Respondent

Bernard answered "Oh, we can't speak about that

now" when Petitioner was given documents that

111

QUESTIONS PRESENTED

Continued

did not match what was shown to him or read to

him.2

Questions: 1) Does a municipally impair their obligation to a binding arbitration clause found in a

collective bargaining agreement when an administrative agency enacts a regulation to cause the

impairment? 2) Does Contract Clause prohibit impairments of binding arbitration found in publicsector contracts?

According to the panel ofjudges' order, Hon. Cogan

was providing Lucio with legal guidance and advice on how to plead facts.

Questions: May Lucio, as the party, plead and

manage his own causes personally or by assistance of such counsel or attorneys at law as by the

rules of the said courts respectively shall be permitted to manage and conduct causes therein, as

found in §35 of the Judiciary Act of 1789?

Legislative History of "35 of the Judiciary Act of

1789114 and case laws related to "Sixth Amendment", speak about a judge appearing bias when

the judge provides legal advice and guidance to litigant, like being a litigant's attorney.

Audio recorded.

Judiciary Act of 1789 and Sixth Amendment were written

during the same timeframe.

Debates on the Federal Judiciary: A Documentary History

(Vol. I: 1787-1875).

QUESTIONS PRESENTED

Continued

Questions: 1) Does the "Sixth Amendment" and

"35 of the Judiciary Act of 1789" continue to

prohibit judges to appear as a litigant's attorney

or provide legal guidance or legal advice? 2) Do litigants need to hire an attorney anymore if judges

can appear as pro se litigants' attorney?

Petitioner has had only one lawsuit in federal

court with only appeal in the court of appeals. The

Court of Appeals for the Second Circuit has set a

standard for sanctions as being someone with 15

lawsuits in. district court and in the court of appeals as a person who needs only a warning, which

is per curiam.

Questions: 1) Are per curiam decisions with the

standards found in them still needed to be followed by the court? 2) Are sanctions meant to be

imposed unevenly?

Legislative History of "35 of the Judiciary Act of

1789"1 and case laws related to "Sixth Amendment" speak about a judge appearing bias when

the judge provides legal advice and guidance to litigant, like being a litigant's attorney.

Questions: 1) Does the "Sixth Amendment" and

"35 of the Judiciary Act of 1789" continue to prohibit judges to appear as a litigant's attorney or

provide legal guidance or legal advice? 2) Do litigant need to hire an attorney anymore if judges

can appear as pro se litigants' attorney?

Debates on the Federal Judiciary: A Documentary History

(Vol. I: 1787-1875).

PARTIES TO THE PROCEEDINGS

Respondents are Richard Cole, Anne Bernard,

New York City Department of Education, Courtenaye

Jackson-Chase 6, Susan Mandel, and Grismaldy LaboyWilson.

All parties that do not appear in the caption

of the case on the cover page: A list of all parties to

proceeding the court whose judgment is the subject of

the petition is as follows: subordinates of Courtenáye

Jackson-Chase', the Panel for Educational Policy, the

United Federation of Teachers with their subordinates.8 ALJ Angela Blassman of NYS PERB.

Jackson-Chase was a member of the Panel on Education

Policy (PEP) and the PEP is the legislative body for the Respondent and it is a quasi-judiciary body, as well.

Marcel Kshensky, Alan Lichtenstein, Pedro Crespo, Susan

Mandel, Esq., Patricia Lavin, Grismaldy Laboy-Wilson and Todd

Drantch, Esq.

8 Catherine Battle, Esq. and Susan Sedlmeyer.

TABLE OF CONTENTS

Page

Questions Presented............................................i

Parties to the Proceedings ................................... .v

Table of Contents.................................................vi

Table of Authorities .............................................viii

Opinions Below....................................................1

App. A (Court of Appeals saying it was ok for

Hon. Cogan to act as Lucio's lawyer), App. B

(Hon. Cogan dismissed the complaint because

Lucio did not listen to his legal advice in App.

D), App. C. (Reconsideration) and App. D (Doc.

No. 37: Hon. Cogan's legal advice to meet

FRCP 8 was "if you continue to plead the UFT,

I'll dismiss it" and Cogan was legal counsel for

the UFT for 20 years)

Jurisdiction..........................................................2

Constitutional and Statutory Provisions

Involved............................................................2

Statement of the Case .........................................2

Argument.............................................................6

Hon. Cogan does not have the right to tell

Petitioners what facts to plead and laws to

relyon ........................................................

A Subdivision of a Municipality Cannot

Impair Contractual Obligation in a CBA by

Enacting Administrative Regulations.........14

Per curiam Decision Should be Followed

by the Panel of Judges...............................22

vii

TABLE OF CONTENTS

Continued

Page

IV Title VII Does Not Limit Plaintiff's Cause

ofAction ..................................................... 23

§1983 Claims (Monell): Administrative

Regulations that violate NYS' Con. and

the Taylor Law...........................................29

Decisions of Gov't need to be based on

facts...........................................................30

Conclusion ............................................................ 31

INDEX TO APPENDICES

APPENDIX A: Unpublished Order from the

Court of Appeals for the Second Circuit (Doc.

No. 79-1) ...........................................................App. 1

APPENDIX B: District Order for Dismissal (Doc.

No. 52) because Lucio did not listen to Hon.

Cogan's threat (Doc. No. 37) do not plead the

UFT or the complaint will be dismissed.) ....... App. 7

APPENDIX C: Dismissal of reconsideration

(Doe. No. 57) ...................................................App. 15

APPENDIX D: Doe. No. 37, where Hon. Cogan

provides Lucio with legal advice and legal guidance on what facts and laws to plead, as stated

by the panel of judges in Doe. No 79-1 ..........App. 20

APPENDIX E: Statutes and Constitutional

text.................................................................. App. 25

viii

TABLE OF AUTHORITIES

Page

CASES:

Appleby v. Delaney, 271 U.S. 403 (1926) ....................15

Ass'n of Surrogates I, v. State of NY, 79 N.Y.2d

39 (1992) (state case law).....................................20

Ass'n of Surrogates II v. State of NY, 78 N.Y.2d

143(1991) ................................................................21

Ass'n of Surrogates, III, v. State of NY, 966 F.2d

75(1992) ..................................................................20

Atlantic Coast Line R.R. v. City of Goldsboro,

232 U.S. 548 (1914) .................................................15

Board of Educ. v. Associated Teachers of Huntington, 30 N.Y.2d 122, 282 N.E.2d 109, 331

N.Y.S.2d 17 (1972) (state case law)......................17

Board of Regents v. Roth, 408 U.S. 564 (1972)...........14

Boston Teachers Union Local 66 v. Boston School

Committee, Mass., 434 N.E.2d 1258 (1982)

(state case law) ................................................17, 21

Browne v. City Univ. of NY, 419 F.Supp.2d 315

(E.D.N.Y.2005).........................................................25

CBOCS West, Inc. v. Humphries, 553 U.S. 442

(2008).......................................................................29

City of El Paso v. Simmons, 379 U.S. 497 (1965) .......16

City of Vicksburg v. Waterworks Co., 202 U.S. 453

(1906).......................................................................15

City of Walla Walla v. Walla Walla Water Co., 172

U.S. 1 (1898) ............................................................15

TABLE OF AUTHORITIES

Continued

Page

Cleveland Board of Education v. Loudermill,

470 U.S. 532 (1985) ....................................................4

Cuyahoga Power Co. v. City of Akron, 240 U.S.

462(1916) .................................................................15

Davis v. Gray, 83 U.S. 203 (1873) ...............................24

Domino's Pizza v. McDonald, 546 U.S. 470

(2006) .................................................................23,27

Dunellen Board of Educ, v. Dunellen Educ. Assn,

64 N.J. 17, 311 A.2d 737 (1973) (state case

law) .........................................................................17

East Tex. Motor Freight Lines v. United States,

96 F.Supp. 424 (N.D.Tex.1951) .................................30

Fair v. Kohler Die Specialty Co., 228 U.S. 22, 33

S.Ct. 410, 57 L.Ed. 716 (1913) ................................13

Faitoute Iron & Steel Co. v. City of Asbury Park,

316 U.S. 502 (1942) .................................................15

Ford Motor Co. (Delaware) v. United States, 97

Ct.C1. 370, 47 F.Supp. 259 (1942) ...........................30

Galabya v. NY2. Bd. of Educ., 202 F.3d 636 (2d

Cir.2000) ..................................................................25

Goodman v. Lukens Steel, 482 U.S. 656 (1987) ...22, 28

. .

Grand Trunk Ry. v. Indiana R.R. Comm'n, 221

Home Building & Loan Assn v. Blaisdell, 290

U.S. 398 (1934) ........................................................16

.S.

400

(1911)

.......................................................

.1WAcHIW v. NY State Dept. of Motor Vehicles,

396 F.3d 525 (2d. Cir. 2005) ....................................22

TABLE OF AUTHORITIES

Continued

Page

Jackson v. Birmingham Board of Education, 544

U.S. 167 (2005) ........................................................26

Jacobsen v. Filler, 790 F.2d 1362 (1986) ....................12

Jefferson Branch Bank v. Skelly, 66 U.S. (1 Bi.)

436(1862) ................................................................18

Johnson v. Railway Express Agency, 421 U.S.

454(1975) ..........................................................28,29

Louisiana v. Pilsbury, 105 U.S. 278 (1882) ................18

McKaskle v. Wiggins, 465 U.S. 168 (1984)..................12

Mobile & Ohio R.R. v. Tennessee, 153 U.S. 486

(1894).......................................................................18

New Orleans WaterWorks Co. v. Rivers, 115 U.S.

674 (1885) ................................................................15

O'Boyle v. Coe, 155 F.Supp. 581 (D.C.Dist. 1957)........30

Offutt v. United States, 348 U.S. 11 (1954) ............8, 31

Ogden v. Saunders, 25 U.S. (12 Wheat.) 213

(1827).......................................................................19

Ohio Life Ins, and Trust Co. v. Debolt, 57 U.S. (16

How.) 416 (1854)......................................................18

Patterson v. McLean Credit Union, 491 U.S. 164

(1989).......................................................................26

Powell v. Alabama, 287 U.S. 45 (1932) .......................13

Richardson v. NY. State Dept of Corr. Serv., 180

F.3d 426 (2d Cir. 1999).............................................25

Smith v. Pavich, 568 F.2d 33 (7th Cir. 1978)..............12

TABLE OF AUTHORITIES

Continued

Page

Sotomayor v. City of New York, 862 F.Supp.2d

226 (E.D.N.Y. 2012).................................................25

State Bank of Ohio v. Knoop, 57 U.S. (16 How.)

369(1854) ................................................................18

Sturges v. Crowninshield, 17 U.S. 122 (1819)............18

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551

U.S. 308 (2007) ..........................................................9

Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003) ............25

Travelers Indem. Co. v. Sarkisian, 794 Rd 754

(2d Cir. 1986) ..........................................................13

Treglia v. Town of Manlius, 313 F.3d 713 (2d Cir.

2002) ........................................................................25

7W borough Bridge and Tunnel Auth., 5 PERB

14505 (Milowe 1972), conf'd, 5 PERB 13037

(1972) (NYS PERB case law)..................................20

United States Trust Co. of New York v. New Jersey, 97 S. Ct. 1505 (1977) ..................................18, 23

United States v. Philadelphia & Reading R.R.,

123 U.S. 113 (1887) ...................................................8

United States v. Pinkey, 548 F.2d 305 (1977).............12

STATUTES

§35 of the Judiciary Act of 1789.........................passim

42 U.S.C. §1981 ......................................2, 23, 26, 28, 29

42 U.S.C. *1983 ...........................................................29

xii

TABLE OF AUTHORITIES

Continued

Page

48 Stat. 1064.......................................................passim

28 U.S.C. § 2072 .................................................. passim

STATE STATUTES

New York State's Constitution Article 1, §17 ...... passim

Public Employee Fair Employment Act

(Taylor Law) ....................................................passim

OTHER

Debates on the Federal Judiciary: A Documentary History (Vol. I: 1787-1875) from the Federal Judicial Center ..................................................7

Robbins and Herman, 42 Brooklyn L.Rev. at

681-82 (cited in note 9) ...........................................12

Westling and Rasmussen, 16 Loy.U.Chi.L.J. at

310 (cited in note 25) (same)...................................12

Lucio Celli ("Petitioner") respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Second Circuit

that judges can give legal guidance and advice, like an

attorney by ordering the plaintiff what facts to plead.

The legal guidance and advice was for the Petitioner

not to plead facts that the Department of Education

("Respondent") unilaterally enacted administrative

regulations that impaired their obligations of a publicsector collective bargaining agreement ("CBA"), which

the CBA was made and agreed upon by the City of New

York ("City") and the United Federation of Teachers

("UFT") pursuant to New York State's Constitution Article 1, §17 ("NYS Con."), Civil Servant Law Article 14

("Taylor Law"), and the City of New York's Charter

("Charter").

OPINIONS BELOW

The opinion of the Court of Appeals for the 2nd Cir.

Appendix, App. 1 appears Appendix A to the petition

and it is unpublished. The order of the United States

District Court for the Eastern District of New York dismissing Petitioner's complaint is found at App. B & C.

The district court's legal guidance on how to plead

facts in Hon. Cogan's view and ordering Petitioner to

take of New York State Public Employee Act ("Taylor

Law") with UFT and how defendants issued unilateral

changes to the CBA or face dismissal App. D.

JURISDICTION

Petitioner seeks review of the decision of the

United States Court of Appeals for the Second Circuit

entered on November 1, 2017. This Court's jurisdiction

rests on 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The relevant statutory provisions are reproduced

in the Appendix (Pet. App. E).

STATEMENT OF THE CASE

This Petition shows that the United States District Court and the United States Court of Appeals entered decisions in conflict with this Court on matter of

giving legal guidance and advice to pro se litigants,

which contradicts §35 of the Judiciary Act of 1798 and

the Sixth Amendment. The legal guidance and advice

by the District Court was to take out any administrative regulations enacted by the Respondents to impair

legal obligations of a public-sector CBA, which were retaliatory under §1981 and Title VII because the Respondents only enacted administrative regulations

after Petitioner complained and did not consult the

UFT, as required by the Taylor Law.

Facts of the Case: 1) District Court wanted Petitioner to edit out all facts of how the Respondents and

• the UFT impaired the CBA by the union not processing

grievances and the Respondents enacting administrative regulations to harm petitioner. See App B; 2) All

of Petitioner's racial and discrimination and ADA discrimination claims were based upon the CBA between

the Respondents and the UFT because Cole and Bernard provided the African-American teachers with

their CBA rights and not Lucio; 3) The CBA between

the Respondents and the UFT is a public-sector contract that falls under the purview of the Contract

Clause and the 14th Amendment. 4) The CBA was negotiated pursuant to New York State's Con Art. 1, §17,

the Taylor Law, New York City's Charter, "Executive

Order 38" and then amended by "Executive Order 13.";

5) Under the Taylor Law, "Teacher Evaluations,"

"Forms for Evaluations," "Procedures for hiring" "Job

Postings," "Grievance Hearing," "Work Rules," and

"Seniority" are all mandatory subjects of negotiation.

Lucio pleaded facts that were mandatory subjects that

Respondent Cole, Respondent Bernard impeded petitioner's CBA rights with DoE Legal to help them and

Audio Recording; 6) There is a binding arbitration

clause in the CBA; 7) All mandatory subjection of negotiation was unilaterally changed by the Respondents

through the Panel on Educational Policy ("PEP"),9 according to Respondents; 8) Cole conducted an evaluation not found in the collective bargaining agreement;

Legislative body of the DoE, which also has quasi-Judicial

functions.

9) Lucio's Loudermill'° hearing did not have the extra

protection found in binding arbitration decisions,

which are to speak and present evidence, no notice, and

no explanation, as required; 10) Respondents enacted

administrative regulations to impair their legal obligations in the CBA and under the state's constitution and

the Taylor Law; 11) Lucio claimed property rights to

the Taylor Law" and to the state's constitution; 12)

The UFT did not want to process grievances for administrative regulations that unilaterally altered the CBA,

illegally, because the federal court would take care of

it; 13) Petitioner's ADA claim arose from being sent

down for medical exam pursuant to Ed. Law §2568 and

CBA 21K. Lucio was sent down to medical based on assumption made about Lucio's medication12. Once Lucio

was cleared from medical exam, Grismaldy Laboy-Wilson retaliated against Lucio by not honoring Lucio's

CBA rights for rotation and for the jobs that he applied

for at the school; 14) Petitioner's claims are "inextricably intertwined" with the provisions of CBA and cannot be separated; 15) According to the Catherine

Battle, Esq.'3, the Union was not going to pursue any

grievances because Lucio had a pending lawsuit

against the DOE and his claims were better suited for

federal court because of DOE's conduct at grievance

Cleveland Board of Education v. Loudermill, 470 U.S. 532

(1985).

11 Citied in master complaint.

12 Lucio did not want to disclose this HIV status to LaboyWilson.

'3 Lawyers for the UFT.

'°

hearings. Battle's statements (audio recorded) were

said in front of the ALJ Blassman and Drantch for the

DOE; 16) Teachers' evaluation system is governed by

8JI4 of the CBA between the UFT and the DOE, who

are the only signatory of the agreement. As a result,

Lucio had an expectation to be evaluated pursuant to

Article 8J of the CBA, only.

Cole and audio recorded

Danielson"

6 components and one 23 components and over

50 pages

page, on May 28, 2014

Model as the only word in Each level has detailed

criteria to meet.

the criteria for all level

On May 4, 2015, Lucio was Danielson's rubric/CBA

showed two pages and the Still 23 components

first page was different

from May 28th 16 compo-

nents

No pre-observation con- Pre-observation 16 is a re

ducted, but post was ob- quirement as is post observation

servation done

8J are the evaluations provisions for GED teachers and

are

based on scores. As a GED teacher, Lucio needed to be

8J1

evaluated under 8J for S or U. As a Special Education or Social

Studies teacher, Lucio received a scores because the final score is

based on classroom observations and students' exams scores.

15 Danielson's Framework and rubric is found in Article

8J(2), but Cole needed to use the procedures in Article 8J(1)

because Lucio was a GED teacher under his supervision. Under

Laboy-Wilson supervision, Lucio was observed using Article 8J(2)

because he is a Special Education Teacher that teaches Global

History Regents.

Pre-observation is an explanation of what the supervisor

wants to be seen taught during the evaluation and this is the time

No evidence

Samples of student work,

Pictures or any other evidence to support the rating/

score

Submission of artifacts Teachers can submit arti

facts to improve the score

was not an opinion,

of the evaluation

ARGUMENT

The issue is not the order (App. B) of Fed. Rul. of

Civ. Pro. 8(a), the issue is the District Court did not

allow Petitioner to be the master of his complaint and ignored Petitioner's rights under §35

of the Judiciary Act of 1789. The 2nd Cir. entered a

decision that conflicts and departs from its own decisions, those of Court of Appeals, and, most importantly,

those from the Supreme Court because the panel of

judges said the district court can be the petitioner's

lawyer give legal advice/guidance to edit out statements from the Respondents where they enacted regulations to impair their legal obligation in a CBA.

The legislative history for §35 of Judiciary Act and

case law for 6th Amendment shows that when a judge

provides legal advice and guidance, the judge is

that the supervisor expresses what he/she expects as outcomes for

the lesson. This is also the time the supervisor reviews the lesson

plan and expresses concerns about the lesson or points out the

problems in the lesson or possible problems during the lesson.

perceived as being biasness and it is not a judicial act.

In fact, the §35 provided clear roles for litigants and

their attorney or to meet with a lawyer of the court, as

way to maintain impartially of the judge.

No judge could maintain a public view of impartially if they are providing legal advice and guidance

to parties. There is no justification under the Judiciary

Act, 6th Amendment, or in case law that allows a judge

to take control of a lawsuit and pleadings. In a constitutional government based on separation of powers,

most importantly, the non-judicial duties of judges

gave rise to public debates on the appropriate relationship between the judiciary and the other two branches

of government review the applications in their capacity as commissioners appointed by the act rather than

as federal judges. 17

Hon. Cogan does not have the right to tell

Petitioners what facts to plead and laws to

rely on in a Complaint because it is limiting

District Court did not have the statutory/cont.

right to provide legal advice with guidance to limit petitioner's pleadings because the framers of the 6th

Amendment and the Judiciary Act of 1789 warned

against it because it would lead to view of partially. The

17 In the Minutes of the U.S. Circuit Court for the District of

New York, April 5, 1792, it states: "That neither the Legislative

nor the executive branches, can constitutionally assign to the judicial any duties but such as are properly judicial and to be performed in a judicial manner." Debates on the Federal Judiciary:

A Documentary History (Vol. I: 1787-1875).

panel of the judges were ok with the district court acting as Petitioner's attorney. §35 of the Judiciary Act

states, "may plead and manage their own causes

personally or by assistance of such counsel or attorneys at law as by the rules of the said courts

respectively shall be permitted to manage and

conduct causes therein. 1118

Panel of judges saw district court's statement of

"The Taylor Law also has nothing to do with this case.

Plaintiff was either discriminated against because he

is white and/or disabled, or not. That is all there is to

this case, and if plaintiff does not stick to the facts

showing those claims and those facts only, the case is

going to be dismissed," as his legal guidance and advise, but this is not justice.19 Lucio was discriminated

via his CBA rights, which was created under the Taylor

Law.

District Court had the power to express his opinion without a threat of dismissal in App. D because it

is constitutional for a federal judge, in the course of

trial, to express his opinion upon the facts, provided all

questions of fact are ultimately submitted to the jury20

18 And in no place, does the act or legislative history provides

a judge with role of being the litigants' lawyer because the public

would question the court's ability to be impartial.

19 Justice Felix Frankfurter wrote in Offutt v. United States

348 U.S. 11, 13 (1954) that "justice must satisfy the appearance

of justice."

20 Vicksburg & Meridian R.R. v. Putnam, 118 U.S. 545, 553

(1886); United States v. Philadelphia & Reading R.R., 123 U.S.

113, 114 (1887).

However, the District Court carried the threat of App.

D in App. B and App. C.

It is well-settled that Congress "has power to prescribe what must be pleaded to state the claim, just as

it has the power to determine what must be proved to

prevail on the merits. It is the federal lawmaker's

prerogative, therefore, to allow, disallow, or shape the

contours of— including the pleading and proof requirements for. private actions.' 2' According to the panel

of judges, District Court was providing legal guidance

versus a threat, which the panel acknowledged that

Hon. Cogan was not acting as a judge in App. D because pleadings is the role of Congress and it is a right

Congress has given only to litigants to control.

A. § 35 of the Judiciary Act Only Allows A

litigant or Litigant's Lawyer with the

Right to Plead, Manage, and Plan Legal

Strategy

Legislative Intent: Representative John Vining

of Delaware, August 31, 1789 said, "see Justice so

equally distributed as that every citizen of the United

States should be fairly dealt by, and so impartially administered. 1122 Response: Petitioner is saying that

A "heightened pleading rule simply 'prescribes the means

when '[t]he issue [is] made as preof making an issue,' and

scribed, the right of trial by jury accrues. Tellabs, Inc. v. Makor

Issues & Rights, Ltd. 551 U.S. at 328 (quoting Fidelity & Deposit

Co. of Md. v. United States, 187 U.S. 315, 320 (1902)).

To sum up his argument a fair and uniform system ofjustice.

. ,

there is • no uniformity or impartially if a judge can

advise/threaten plaintiff with dismissal because the

plaintiff will not plead facts in Hon. Cogan's view and

he did not plaintiff to show facts of impairment of public-sector contract because of non-process of grievances

by the union who was of counsel for the UFT for

17 years.23

Representative Fisher Ames of Massachusetts,

August 29, 1789 said, "A government which may make,

but not enforce laws, cannot last long, nor do much

good. The administration of justice is the very performance of the social bargain on the part of government."

Response: Panel of judges were supposed to enforce

§35 of Judiciary Act and master of complaint doctrine

because Congressional authorization of the Rules (like

Rule 8) expressly provided that "Said rules shall neither abridge, enlarge, nor modify the substantive

rights of any litigant." 48 Stat. 1064. See 28 U.S.C.

§ 2072. Hon. Cogan took his rights to plead facts away

in Doc. No. 37 (App. D).

Representative James Jackson of Georgia, August

29, 1789 said, "I hold that the harmony of the people,

their liberties and properties will be more secure under

the legal paths of their ancestors." Response: Petitioner was denied of liberties and properties rights

found in §35 of the Judiciary Act because the district

13 Representative Thomas Sumter of South Carolina, August

31, 1789 said, judges will exercise their jurisdiction without oppression. Response: A threat of dismissal if plaintiff did not take

out the Taylor Law or the fact that the UFT did not process grievances is the type of oppression framers wanted to avoid.

court wanted the plaintiff to edit out any facts that

showed enactment of administrative regulation to impair obligation of a CBA because Lucio complained of

discrimination, rights under the Liberty of Contract

Doctrine, and how the UFT helped the Respondents by

not processing grievances.

Representative Samuel Livermore of New Hampshire, August 24, 1789 said,". I do not doubt but the

most impartial administration of justice will take

People in general do not view the necessity

place,

of courts of justice with the eye of a civilian, they look

upon laws rather as intended for punishment than protection, they will think we are endeavoring to irritate

them rather than to establish a government to set easy

upon them. Response: Petitioner feels punished because he was not given his rights under §35 of the Judiciary Act or 48 Stat. 1064. See 28 U.S.C. § 2072.

because Lucio had to plead facts according to by

Hon. Cogan's view. See Doc. 37.

Representative James Bayard of Delaware, February 19, 1802 said, "But let their existence depend upon

the support of the power of a certain set of men, and

they cannot be impartial. Justice will be trodden under

foot. Your courts will lose all public confidence and respect" Response: Shows what the framers were concerned about public confidence and impartially, which

was the reason to write §35.

1) Case Laws

Case laws shows that a judge is not a proper party

to provide legal guidance and advice to litigants because of the perception of biasness, as decisions concur

with the intentions of the framers under § 35 of the Judiciary Act of 1789 and the 6th Amendment. Therefore,

the case laws support Petitioner's view that Hon.

Cogan did not to have the right to be Petitioner's lawyer or abridge his rights under 48 Stat. 1064. See 28

U.S.C. § 2072.

The district court was not even advocating in Petitioner's interest because the district court wanted Petitioner to edit out all facts of the contractual

relationship and the laws meant to create the CBA

the Taylor Law. The judge was not aiding, as the panel

said in App. A but aiding the other side.24

In McKaskle v. Wiggins, 465 U.S. 168 (1984), the

Court held that "the use of standby counsel preserves

the jury's perception that the pro se litigant is conducting his own case." This did not happened in petitioner's

case. Hon. Cogan took on the role as Lucio's lawyer by

The judge who unduly aids the pro se litigant in his defense is, it is argued and reasoned by the Court, wrongfully acting

as an advocate for one side of the dispute. See Jacobsen, 790 F.2d

at 1365-66; Pinkey, 548 F.2d at 311 ("[T]he trial court is under no

obligation to become an 'advocate' for or to assist and guide the

pro se layman through the trial thicket"); United States ex rel.

Smith v. Pavich, 568 F.2d 33, 40 (7th Cir. 1978) (same). See also

Robbins and Herman, 42 Brooklyn L.Rev. at 681-82 (cited in note

9) (judge not proper party to represent the pro se litigant); Westlmg and Rasmussen, 16 Loy.U.Chi.L.J. at 310 (cited in note 25)

(same). United States v. Pinkey.

telling the Petitioner what he could plead in Doc. No

37. In fact, judicial impartiality was one of the original

justifications for the sixth amendment right to counsel.

Powell v. Alabama, 287 U.S. 45, 61 (1932). The judge

who unduly aids the pro se litigant in his case is

wrongfully acting as an advocate for one side of the dispute. But, judge was not acting as Petitioner's advocate, as he was advocating against the plaintiff to edit

out the contractual relationship and the laws that created the CBA the Taylor Law and NYS' Cont.25

B. Litigants have Rights under the "Master

of the Complaint Doctrine"

The panel of judges' order has departed from this

Court's "master of the complaint doctrine." The rule,

policy in every Court in our nation, and principle is," It

has been the law for decades that "the party who

brings a suit is master to decide what law he will rely

The Fair v. Kohler Die Specialty Co., 228

upon..

U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913). See

Travelers Indem. Co. v. Sarkisian 794 Rd 754 (2d Cir.

1986). The facts and law Hon. Cogan told Lucio to take

out in Doc. No. 37 were needed to establish Contract

Clause claim and 1981/Title VII claim because the

facts centered on how Lucio was discriminated in

terms of his CBA rights. Hon. Cogan failed to honor

Lucio's rights under the master doctrine.

See App. D.

C. State Created Property of Mandatory

Subjects of negotiation with NYS Constitution

The 14th Amendment has the Liberty of the

Contract Doctrine and Due Process Clause, which Hon.

Cogan wanted plaintiff to edit out the facts that dealt

with mandatory subjects. Example: evaluation are

mandatory subject under the Taylor Law with the fact

that DoE and the UFT negotiated pursuant to NYS'

Constitution Art. 1, §17. Cole deprived Lucio of what

was written in the CBA for evaluations. The leading

case, and the starting point for analysis of the doctrine

protecting state-created property, is Board of Regents

v. Roth, 408 U.S. 564 (1972). Petitioner is claiming protected rights found in the Taylor Law and NYS' Con.

Art. 1, §17.

II. A Subdivision of a Municipality Cannot

Impair Contractual Obligation in a CBA by

Enacting Administrative Regulations

The Contracts Clause of the US Constitution is

one of the only protections against city's interference

with contractual obligations. Petitioner brought a discrimination action and contract enforcement action

against the DoE, Cole, and Bernard on allegations that

Cole and Bernard did not perform legal obligations of

the CBA CBA was created under the Taylor Law, and

New York State Constitution Article 1, §17 with the

Charter §1170 to §1177 of a public-sector CBA negotiated by DoE and the UFT.

Notwithstanding Hon. Cogan's and panel of judges'

conclusion that judges can ignore: only Congress has

the right to tell plaintiff what to plead '26 but the Respondents did not have the right to enact administrative regulation to impair their obligation, as it also

harms Petitioner's right under liberty of the contract

doctrine under the 14th Amendment. It is also well

established that contracts between individuals and

municipal corporations receive Contract Clause protection.27

A. Administrative Agency Enacted Regulation to Impair the CBA

The Respondents enacted administrative

regulations to impair their legal obligations of

a public-sector CBA, they violate the Contract

Clause 211 because the impairment caused Lucio to incur economic losses.

According to the Respondents, they could

change the terms, conditions, and privileges of

48 Stat. 1064. See 28 U.S.C. § 2072.

Faitoute Iron & Steel Co. v. City of Asbury Park, 316 U.S.

502 (1942).

A contractual obligation is defined by municipal ordinances and/or administrative regulations having the force and operation of statutes. Id. See also Grand Trunk Ry. v. Indiana R.R.

Comm'n, 221 U.S. 400 (1911); Appleby v. Delaney, 271 U.S. 403

(1926). New Orleans WaterWorks Co. v. Rivers, 115 U.S. 674

(1885); City of Walla Walla v. Walla Walla Water Co., 172 U.S. 1

(1898); City of Vicksburg v. Waterworks Co., 202 U.S. 453 (1906);

Atlantic Coast Line R.R. v. City of Goldsboro, 232 U.S. 548(1914);

Cuyahoga Power Co. v. City of Akron, 240 U.S. 462 (1916).

any CBA and without notice to the union

through Courtenaye Jackson-Chase on PEP,

which contradicts the Taylor Law and NYS'

Con.

The Court did not acknowledge how the CBA

formed. "The obligations of a contract," said Chief Justice Hughes, for the Court in Home Building & Loan

Ass'n v. Blaisdell '29 "Not only are existing laws read

into contracts in order to fix obligations as between the

parties. The policy of protecting contracts against impairment presupposes the maintenance of a government

by virtue of which contractual relations are worthwhile, a government which retains adequate authority to secure the peace and good order of society."

According to Chief Hughes, the law from which the

obligation stems must be understood to include constitutional law and, moreover a "progressive" constitutional law.30 The Blaisdell decision represented a

realistic appreciation of the fact that ours is an evolving society and that the general words of the contract

clause were not intended to reduce the legislative

branch of government to helpless impotency. 1131 District

Court caused Congress to impotent by telling plaintiff

290 U.S. at 435. And see City of El Paso v. Simmons, 379

U.S. 497 (1965). "This principle of harmonizing the constitutional

prohibition with the necessary residuum of state power has had

progressive recognition in the decisions of this Court."

Id.

what not to plead in App. D. See 48 Stat. 1064. See 28

U.S.C. § 2072.

B. Judicial Review

Court has always held that judicial review requires some deference to contour of the preexisting

statutes to the collective bargaining framework where

the bargaining statute was silent as to the effect of

preexisting legislation. See 54 Negotiability questions

may arise in the context of suits for a declaration of

authority to negotiate.32

The Petitioner is arguing that the district

knew & understood that Taylor Law

existed prior to the administrative regulation was enacted to impair CBA obligations. District Court did not have any

right to tell petition to plead facts in his

view or his complaint would be dismissed:

The judge said, "The Taylor Law also has

nothing to do with this case. Plaintiff was

either discriminated against because he

is white and/or disabled, or not. That is all

there is to this case, and if plaintiff does

not stick to the facts showing those claims

and those facts only, the case is going to

be dismissed." See App D 17, which is not

E.g., Board of Educ. v. Associated Teachers of Huntington,

30 N.Y.2d 122, 282 N.E.2d 109, 331 N.Y.S.2d 17 (1972); suits to

compel grievance arbitration, e.g., Dunellen Board of Educ v.

Dunellen Educ. Ass'n, 64 N.J. 17, 311 A.2d 737 (1973); suits to

enforce or vacate arbitration awards, e.g., Boston Teachers Union

v. School Committee, 1976 Mass. Adv. Sh. 1515, 350 N.E.2d 707.

what Congress stated in 48 Stat. 1064.

See 28 U.S.C. § 2072.

2. The Court did not review Petitioner's

complaint under United States Trust

Co. of New York v. New Jersey, 97 S. Ct.

1505, 1518 (1977) Stare Decisis because

plaintiff claimed Respondents enacted administrative regulations to impair their

obligations.

C. The CBA was negotiated and agreed

upon pursuant to New York State's

Constitution and the Taylor Law.

The issue in Lucio's case: (1) a municipality (the

Respondents), acting under authority conferred by the

Taylor Law and NYS' Con, has entered into a CBA with

the UFT; (2) the validity of the Taylor Law has been

sustained by the highest state court; (3) the PEP, DoE's

legislative body, passed regulation to change obligation

of the CBA, unilaterally. In such a case Court would

analyze un-constitutionality because of its effect.33

The Court has never departed from the notion that

Contract Clause looks to the state statute, like Taylor

Law. In Sturges v. Crowninshield,34 Marshall defined

the obligation of contracts as "the law which binds the

33 State Bank of Ohio v. Knoop, 57 U.S. (16 How.) 369(1854),

and Ohio Life Ins, and Trust Co. v. Debolt, 57 U.S. (16 How.) 416

(1854) are the leading cases. See also Jefferson Branch Bank v.

Skelly, 66 U.S. (1 Bl.) 436 (1862); Louisiana v. Pilsbury, 105 U.S.

278 (1882); Mobile & Ohio R.R. v. Tennessee, 153 U.S. 486 (1894).

34 17 U.S. 122 (1819).

parties to perform their undertaking." Whence, however, comes this law? If it comes from the State alone,

which Marshall was later to deny even as to private

contracts, then it is hardly possible to hold that the

States' own contracts are covered by the clause, which

manifestly does not create an obligation for contracts

but only protects such obligation as already exists. But,

if, on the other hand, the law furnishing the obligation

of contracts comprises Natural Law and kindred principles.35

The Petitioner is arguing that Respondents are

bound to the Taylor Law and NYS's Con. Art. 1, §17,

which the CBA was created under, because it preserves

the Natural Law and maintains public's trust in the

government that will not impair their own contractual

obligation.

D. Taylor Law (via the Triborough Amendment) Has A Quid Pro Quo to Continue

Provisions of a CBA

The Respondents did not the right to enact an administrative regulation to impair a CBA under the

Taylor Law via the Triborough Amendment.36 Each

35 As well as law which springs from state authority, then, in

as much as the State itself is presumably bound by such principles, the State's own obligations, so far as harmonious with them,

are covered by the clause. See Ogden v. Saunders, 25 U.S. (12

Wheat.) 213, 338 (1827).

36 The implementation clause of New York State's Taylor

Law (Civil Service Law §204-a(1)), and the Triborough Amendment to the Taylor Law (Civil Service Law §209-a(1)(e)). The

issue was resolved favorably to public-sector labor unions in New York State.37 Under the implementation

clause of the Taylor Law, monetary obligations under

multi-year collective bargaining agreements were found

to be binding on the State starting when ratified by the

State and found to not be dependent on the necessary

annual appropriations.38

State was bound in any given year during the term

of the collective bargaining agreement39 Furthermore,

the court noted that under the Triborough Amendment

"public employers are forbidden to refuse to continue

the terms of an expired agreement while a new one

is being negotiated (Civil Service Law §209-a(1)(e))."

(Id.) This is the quid pro quo for prohibiting public

employees from strilcing.40 After its extensive analysis,

the court concluded that legislative ratification of a

Taylor Law is the colloquial name for the Public Employees' Fair

Employment Act, which is codified at Civil Service Law §200-214

(McKinner's 1983 Supp. 1992).

11 The lag payroll was found unconstitutional under the Contract Clause. See Ass'n of Surrogates I, 940 F.2d at 775.

And the terms and conditions of expired collective bargaining agreements, which in New York State are continued Ass'n of

Surrogates, III, 588 N.E.2d at 54.

39 Therefore, the court found it necessary to focus on the Taylor Law with its history. Id. at 150-151, 577 N.E.2d at 12-13, 573

N.Y.S.2d at 212.

40 Triborough Bridge and Tunnel Auth., 5 PERB 14505

(Milowe 1972), conf'd, 5 PERB ¶3037 (1972).

collective bargaining agreement alone was sufficient to

bind the State.4'

E. NYS's Policy to have Parties agree to

change of the CBA

District Court was wrong to ignore public policy of

NYS by telling Petitioner to edit out facts of public poiicy. The legislature of the state of New York declares

that it is the public policy of the state and the purpose

of this (Taylor Law) act to promote harmonious and cooperative relationships between government and its

employees and to protect the public by assuring, and,

the orderly and uninterrupted operations and functions of government.42

Ass'n of Surrogates 11 78 N.Y.2d at 156, 577 N.E.2d at 16,

573 N.Y.S.2d at 25; Compare, Boston Teachers Union Local 66 v.

Boston School Committee, Mass., 434 N.E.2d 1258, 1266 (1982)

(where the court found that once Boston funded the first year of a

multi-year agreement it was bound to comply with the agreement

for its full term).

42 http://www.perb.ny.gov/stat.asp#org and the Policies are

best effectuated by (a) granting to public employees the right of

organization and representation, (b) requiring the state, local governments and other political subdivisions to negotiate with, and

enter into written agreements with employee organizations representing public employees which have been certified or recognized, (c) encouraging such public employers and such employee

organizations to agree upon procedures for resolving disputes, (d)

creating a public employment relations board to assist in resolving disputes between public employees and public employers, and

(e) continuing the prohibition against strikes by public employees

and providing remedies for violations of such prohibition.

F. Lucio is a third-party beneficiary of the

CBA

The Court's first case allowing a section 1981 suit

to proceed for third-party beneficiary was Goodman v.

Lukens Steel, 482 U.S. 656 (1987). District Court's decision is not in line with this Court's view in Doe. No.

37. District Court did not want Petitioner to plead the

facts of his status or what the UFT told him.43

III. Per curiam Decision Should be Followed

by the Panel of Judges

The 2nd Cir. per curiam decision in 1WACHIW v.

NY State Dept. of Motor Vehicles, 396 F.3d 525 (2d. Cir.

2005), who was a pro se Appellant, filed over 15 lawsuits and appeals within the 2nd Circuit44 and the Petitioner has only filed one appeal in his entire life and

one law suit in federal court. In IWACHIW, the Appellant only received a warning from the Court and the

Petitioner received, he must file a leave. The Petitioner

received a hasher sanction than IWACHIW. Sanctions

are meant to prevent abuse of the court system and

Lucio has only sought to enforce his CBA, which is a

public-sector contract. If Respondents can administratively enact regulations to impair obligations of a CBA

According to the Catherine Battle, Esq. (of counsel to the

UFT), the Union was not going to pursue any grievances because

Lucio had a pending lawsuit against the DOE and his claims were

better suited for federal court because of DOE's conduct at grievance hearings. Battle's audio recorded statement was said in front

of the AW Blassman and Drantch for the DOE.

44 All similar in nature too.

PAI

and the Court not review any complaint under United

States Trust Co. of New York v. New Jersey, 97

S. Ct. 1505, 1518 (1977), then the court system is a useless vehicle. If a judge can dictate what facts to plead

in a master complaint to avoid a constitutional claim

or enforcement of contractual rights, then court is a

useless vehicle. Lucio prays the Court will changes the

sanction to be evenhanded.45

IV. Title VII Does Not Limit Plaintiff's Cause

of Action

In App. D, Hon. Cogan not only wanted to be Petitioner's lawyer46, but he wanted to limit Petitioner's

claims/facts/laws that would not include a contractual

relationship or show damages.

A. EXPECTATION OF CONTRACT

The Supreme Court, in Domino's Pizza v. McDonald, 546 U.S. 470, 476 n.3 (U.S. 2006)41 held that "We

say "under which the plaintiff has rights". because

we do not mean to exclude the possibility that a thirdparty intended beneficiary of a contract may have

rights under § 198 1.48 District Court did not have the

per curiam decision of the 2nd Cir. for

IWACHIW.

Panel of Judge's view in App. A.

41 Petitioner used Domino's brief as his brief because of violation of CBA.

See, e.g., 2 Restatement (Second) of Contracts § 304, p. 448

(1979) ("A promise in a contract creates a duty in the

45 and within

power to tell Petitioner to edit all facts that Respondents did to impair their CBA obligation

Government Must Be Treated Like Any

Other Defendant in Lawsuits

In Davis v. Gray, 83 U.S. 203, 232 (1873), Mr. Justice Swayne: "When a state becomes a party to a contract,. the same rules of law are applied to her as to

private persons under like circumstances. 1141 District

Court treated the Respondents better by telling Petitioner to edit out all facts related to the CBA, Union,

Respondents enacting administrative regulations,

Taylor Law, and NYS' Con. Art. 1, §17.

Section 1981's Cause of Action Encompasses Claims of Retaliation for Complaints About Race Discrimination

Petitioner's claims of evaluation because Petitioner complained about racial animus) are the following:

promisor to any intended beneficiary to perform the promise, and the intended beneficiary may enforce the duty").

49 When she or her representatives are properly brought into

the forum of litigation, neither she nor they can assert any right

or immunity as incident to her political sovereignty.

Adversely Affected Lu- Article of the CBA

cio5° and was ordered

to edited the facts

Special Education Posi- Article 15C4& FOIL response, what is written in

tion: Lucio was hired

the CBA is the only provisions to be considered.

Could not be hired because

of Cole's misuse/nonperformance of 8J(1)51

OACE Position

50 In order to constitute an adverse employment action, defendants must effect a "materially adverse change" in the terms

and conditions of employment. See Galabya v. N.Y C. Bd. of

Educ., 202 F.3d 636, 640 (2d Cir. 2000); Richardson V. N.Y. State

Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999). Such a

change must be "more disruptive than a mere inconvenience or

an alteration of job responsibilities." Terry v. Ashcroft, 336 F.3d

128, 138 (2d Cir. 2003) (internal citations and quotations omitted).

a demotion evidenced

Adverse employment actions include

by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices. unique to a particular situation." Id.

Sotomayor v. City of New York, 862 F.Supp.2d 226, 253 (E.D.N.Y.

2012).

51 While "actions such as negative employment evaluation

be considered adverse," e.g., Treglia v. Town of

letters may

Manlius, 313 F.3d 713, 720 (2d Cir. 2002), such appraisals must

generally trigger other negative consequences to the terms and

conditions of the plaintiffs employment in order to qualify as a

materially adverse change, e.g. Browne v. City Univ. of N.Y, 419

F.Supp.2d 315, 333-34 (E.D.N.Y.2005) ("A negative evaluation

alone, absent some accompanying adverse result such as demotion, diminution of wages, or other tangible loss, does not constitute an adverse employment action.") Sotomayor v. City of New

York, 862 F.Supp.2d 226, 254 (E.D.N.Y. 2012).

". . .

. .

. . .

Breakfast and Lunch: Lu- 15(C)4 and Lucio cited an

cio met the requirements arbitration award 1339

of the posting and was the and 1340 with Doc. No.

62-2 at Exhibits D &E.

senior teacher.

a. Retaliation "Impairs" an Individual's

Ability to "Make and Enforce Contracts" Within the Meaning of § 1981.

Claims of retaliation for complaints about race

discrimination fall within the broad terms of § 1981,

because an employer that retaliates against an employee who has complained about race discrimination

has "impaired" that employee's ability to "make and

enforce contracts. M2

"In 1991, however, Congress responded to Patterson53 by adding a new subsection to § 1981 that defines the term 'make and enforce contracts' to include

the 'termination of contracts, and the enjoyment of all

benefits, privileges, terms, and conditions of the contractual relationship." 54

It is settled that retaliation in contractual relationship is a species of discrimination. As this Court

recently made clear in Jackson v. Birmingham Board

all benefits

Which includes the right to "enjoy[ I

the contractual relationship" on an equal footing with "white

citizens."

'Patterson v. McLean Credit Union, 491 U.S. 164 (1989).

Jones v. R.R. Donnelley & Sons Co., 541 U.S. d369, 373

(2004) (quoting 42 U.S.C. § 1981." Jones, 541 U.S. at 383 (citation

and quotation marks omitted).

. . .

...

of Education, 544 U.S. 167, 173-74 (2005), retaliation

against a person because that person has complained about unlawful discrimination is simply

"another form" of "intentional" and unlawful

discrimination.55

Section 1981, which speaks broadly of the right to

equal treatment in all aspects of the contractual relationship and proscribes the "impairment" of that right,

as discrimination during the performance of that contract as well.1156 The panel of judges and the Hon.

Cogan were not in line with Supreme Court's view because in 17 of App. D, Hon. Cogan said Respondents

can be unfair.

D. The Supreme Court's Precedents Confirm That § 1981 Embraces Claims for

Retaliation and Unions were Supposed

to Process Grievances.

District Court erred and exceeded his jurisdiction

to tell Petitioner to edit out all facts about retaliation

While the initial discriminatory act must of course be

"based on race," see Patterson, 491 U.S. at 176-77; Domino's

Pizza, 546 U.S. at 474, nothing in the text of § 1981 suggests

that the concomitant act of retaliation must itself be motivated by the complainant's race. It is sufficient that the retaliation responds to a complaint of race discrimination, and in that

sense, is "based on race." This establishes a nexus between the

subject matter of the complaint (race discrimination) and the retaliatory act that flows from the nature of the complaint (i.e., an

act of retaliation "based on" a prior complaint about race discrimination).

56 H.R. Rep. No. 101-644, pt. 1, at 17.

in the CBA57 because Dis. Court's view of Respondents

could be unfair and the union had nothing to do with

the case. Reading § 1981 to provide redress for retaliation is further supported by two decisions of this Court.

In Goodman v. Lukens Steel Co., 482 U.S. 656 (1987), a

group of black employees asserted claims of race discrimination, under § 1981 and Title VII, against both

their employer and their unions as collective bargaining agents. In a portion of Justice White's opinion

joined by five Members of the Court, the Court held

that the unions were liable under § 1981 for refusing to process grievances that charged the

employer with race discrimination. Id. at 668-69.18

In regard, Petitioner was right to include the

UFT.

E. Petitioner is not limited to Title VII, as

District Court ordered in Doc. No. 37

Johnson59 provides a paradigmatic example of the

Court's repeated recognition and approval of the partially overlapping schemes of liability that the legislative branch has deliberately created. There, the Court

held that "the remedies available under Title VII and

57 App. D.

Contending that "the employer would 'get its back up' if

racial bias was charged," the unions had effectively "categorized

racial grievances as unworthy of pursuit and, while pursuing

thousands of other legitimate grievances, ignored racial discrimination claims on behalf of blacks." Id. at 668.

Johnson v. Railway Express Agency, 421 U.S. 454, 459

(1975).

§ 1981, although related, and although directed to

most of the same ends, are separate, distinct, and independent," notwithstanding the benefits of the conciliation procedure contemplated by Title VII. 421 U.S. at

461.60

Considerations of Stare Decisis: CBOCS West,

Inc. v. Humphries, 553 U.S. 442, 4 (U.S. 2008) is the

Stare Decisis for retaliation and Petitioner used the

winning brief as his Appeal brief

§1983 Claims (Monell): Administrative Regulations that violate NYS' Con. and the Taylor

Law

In McGovern v. City of Philadelphia, No. 08-1632

(3d Cir. Jan 8, 2009) (here) is illustrative. In McGovern,

a unanimous three-judge panel wrote that " 1981(c)

can establish equal rights for parties against private

and state defendants without establishing equal remedies El." The PEP/Respondents enacted administrative regulation to impair legal obligations in the CBA

and under the Taylor with NYS' Con.

As the Court explained: "Despite Title Vii's range and its

design as a comprehensive solution for the problem of invidious

discrimination in employment, the aggrieved individual clearly is

not deprived of other remedies he possesses and is not limited

to Title VII in his search for relief. Id. at 459 (citation omitted). Id. at 459 (quoting H.R. Rep. No. 92-238, at 19 (1971), 1972

U.S.C.C.A.N. 2137, 2154; see also Runyon, 427 U.S. at 175 n.11?

VI. Decisions of Gov't need to be based on

facts

The District Court said that Petitioner's employer

can be unfair in App. D, but Petitioner's employer is the

gov't. The terms "arbitrary" and "capricious" embrace

a concept which emerges from the due process clauses

of the Fifth and Fourteenth Amendments of the United

States Constitution and operates to guarantee that the

acts of government will be grounded on established legal principles and have a rational factual basis. A decision is arbitrary or capricious when it is not

supported by evidence or when there is no reasonable justification for the decision .61 The decisions of the Respondents were not based on the CBA,

Taylor Law, and NYS' Con., which the District Court

wanted edited out and aligned with Judiciary Act.

O'Boyle v. Coe, 155 F.Supp. 581, 584 (D.C.Dist. 1957); East

Tex. Motor Freight Lines v. United States, 96 F.Supp. 424, 427

(N.D.Tex.1951); Ford Motor Co. (Delaware) v. United States, 97

Ct.C1. 370, 47 F.Supp. 259 (1942).

CONCLUSION

The petition for a writ of certiorari should be

granted. Justice Felix Frankfurter wrote in Offutt v.

United States 348 U.S. 11, 13 (1954) that "justice must

satisfy the appearance ofjustice" and Petitioner wants

to be the master of his complaint and given his rights

under §35 of the Judiciary Act of 1789.

Respectfully submitted,

Luclo CELLI on August 10, 2018

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.