Petition for Writ of Certiorari — Ho Wong Jeong, Petitioner v. Angel Cabrera, et al.

No. ______

In the

Supreme Court of the United States

__________________

HO WONG JEONG,

v.

Petitioner,

ANGEL CABRERA; S. DAVID WU; KEVIN AVRUCH,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

RICHARD F. HAWKINS, III

Counsel of Record

THE HAWKINS LAW FIRM, PC

2222 Monument Ave.

Richmond, VA 23220

(804) 308-3040 (telephone)

(804) 308-3132 (fax)

rhawkins@thehawkinslawfirm.net

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

Did the district court act contrary to this Court’s

precedents in Haines v. Kerner, 404 U.S. 519, 521

(1972) and Erickson v. Pardus, 551 U.S. 89, 94 (2007)

when it denied appellant’s pro se Rule 60(b)(3) motion

on the grounds of untimeliness without holding oral

argument to inquire into the reasons that appellant

waited a bit more than eleven months to file the

motion?

ii

PARTIES TO THE PROCEEDINGS

Petitioner, plaintiff-appellant below, is Ho Won

Jeong.

Respondents, defendants-appellees below, are Angel

Cabrera; S. David Wu; and Kevin Avruch.

STATEMENT OF RELATED PROCEEDINGS

• Jeong v. Cabrera, et al.; No. 19-1882 (4th Cir.)

(opinion issued and judgment entered on March

25, 2020; petition for panel rehearing and

rehearing en banc denied May 11, 2020;

mandate issued May 19, 2020).

• Jeong v. Cabrera, et al.; 1:18cv (E.D. Va.) (order

denying Rule 60(b)(3) motion entered July 17,

2019).

There are no additional proceedings in any court

that are directly related to this case.

iii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . . . . . . ii

STATEMENT OF RELATED PROCEEDINGS . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . vi

PETITION FOR WRIT OF CERTIORARI . . . . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

RULE OF CIVIL PROCEDURE INVOLVED . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . 4

I. Factual Background Of Jeong I . . . . . . . . . . . . . . 4

A. Jeong’s Longstanding Tenure at GMU. . . . . . 4

B. Post-Tenure Review And Jeong’s Grievance

Of Same . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

C. The Post-Tenure Review Committee

Recommends Either Reassignment Or

Sanctions Against Jeong, But NOT

Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

D. Jeong Then Files Suit Against GMU

(Jeong I) And The Post-Tenure Review

Committee Changes Its Recommendation

From “Sanctions” To “Termination” . . . . . . . . 6

iv

E. Jeong I Is Dismissed And GMU Fires Jeong

Just Days Later . . . . . . . . . . . . . . . . . . . . . . . . 7

II. Relevant Procedural History: Jeong II . . . . . . . . 8

A. Appellees Move To Dismiss Jeong II And As

Part Of Their Dismissal Efforts, They

Greatly Minimize The August 5, 2016 PostTenure Committee Report. . . . . . . . . . . . . . . . 8

B. The District Court Dismisses Jeong II, In

Part, Based On The Alleged Lack Of Value

Of The August 5, 2016 Report . . . . . . . . . . . 11

C. Jeong, Now Pro Se, Files His Rule 60(b)(3)

Motion And Submits Documentation That

Shows That The August 5, 2016 Report Was

Not A Mere Draft But Instead Was A Report

That Was Intentionally Changed After Jeong

Filed Jeong I . . . . . . . . . . . . . . . . . . . . . . . . . 11

D. Without A Hearing And Without Ever

Hearing From Jeong In Person, The District

Court Denied Jeong’s Rule 60 Motion As

Untimely . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

E. Jeong Appeals The District Court’s Denial Of

His Rule 60(b)(3) Motion, But The Fourth

Circuit Affirms The Denial . . . . . . . . . . . . . . 16

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . 17

I. This Court Should Grant Certiorari Because

The Decisions Below Conflict With

This Court’s Precedents In Haines And

Erickson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

v

A. This Court’s Precedents Showing The Federal

Judicial System’s Longstanding Latitude

When Dealing With Pro Se Litigants . . . . . . 18

B. The District Court Failed To Abide By This

Court’s Precedents in Haines And Erickson,

And Thus Abused Its Discretion When,

Without A Hearing, It Denied Jeong’s Pro Se

Rule 60(b)(3) Motion On The Ground Of

Untimeliness . . . . . . . . . . . . . . . . . . . . . . . . . 19

II. This Case Is An Ideal Vehicle To Resolve The

Question Presented. . . . . . . . . . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Fourth Circuit

(March 25, 2020) . . . . . . . . . . . . . App. 1

Appendix B Order in the United States District

Court for the Eastern District of

Virginia Alexandria Division

(July 17, 2019). . . . . . . . . . . . . . . . App. 5

Appendix C Order in the United States District

Court for the Eastern District of

Virginia Alexandria Division

(July 13, 2018). . . . . . . . . . . . . . . App. 8

Appendix D Order Denying Rehearing and

Rehearing en banc in the United

States Court of Appeals for the Fourth

Circuit

(May 11, 2020). . . . . . . . . . . . . . . App. 10

vi

TABLE OF AUTHORITIES

CASES

Bankers Mortgage Co. v. U.S.,

423 F.2d 73 (5th Cir. 1970). . . . . . . . . . . . . . . . . 17

Beal v. Foster,

803 F.3d 356 (7th Cir. 2015). . . . . . . . . . . . . . . . 21

Beaudett v. City of Hampton,

775 F.2d 1274 (4th Cir. 1985). . . . . . . . . . . . . 2, 18

Boughner v. Secretary of Health, Ed. & Welf., U.S.,

572 F.2d 976 (3d Cir. 1978) . . . . . . . . . . . . . . . . 17

Compton v. Alton S.S. Co., Inc.,

608 F.2d 96 (4th Cir. 1979). . . . . . . . . . . . . . . . . 17

Erickson v. Pardus,

551 U.S. 89 (2007). . . . . . . . . . . . . . . . . . . . passim

Estate of Grieco v. National Medical

Consultants, P.C., 2018 WL 4562405

(D.N.J. Sept. 24, 2018) . . . . . . . . . . . . . . . . . . . . 21

Gee v. Pacheco,

495 Fed.Appx 942 (10th Cir. Aug. 31, 2012) . . . . 2

Gordon v. Leeke,

574 F.2d 1147 (4th Cir.), cert. denied,

439 U.S. 970, 99 S.Ct. 464,

58 L.Ed.2d 431 (1978) . . . . . . . . . . . . . . . . . . . 3, 19

Haines v. Kerner,

404 U.S. 519 (1972). . . . . . . . . . . . . . . . . . . passim

vii

Klapprott v. United States,

335 U.S. 601 (1949). . . . . . . . . . . . . . . . . . . . . . . 17

Mylan Labs, Inc. v. Matkari,

7 F.3d 1130 (4th Cir. 1993). . . . . . . . . . . . . . . . . . 8

National Org. for Women v. Operation Rescue,

47 F.3d 667 (4th. Cir. 1995) . . . . . . . . . . . . . . . . 17

Price & Pierce Intern. Inc. v. Spicers Intern.

Paper Sales, Inc., 1985 WL 1985

(S.D.N.Y. June 28, 1985) . . . . . . . . . . . . . . . . . . 21

United States v. Liggins,

155 F. Supp.3d 665 (N.D. Miss. 2016) . . . . . . . . 20

Werner v. Carbo,

731 F.2d 204 (4th Cir. 1984). . . . . . . . . . . . . . . . 19

Williams v. Wahner,

731 F.3d 731 (7th Cir. 2013). . . . . . . . . . . . . . . . 21

STATUTES

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 1

FED. R. CIV. P. 8(f) . . . . . . . . . . . . . . . . . . . . . . . . . . 18

FED. R. CIV. P. 60(b)(3). . . . . . . . . . . . . . . . . . . passim

FED. R. CIV. P. 60(c) . . . . . . . . . . . . . . . . . . . . . . . . . 19

OTHER AUTHORITIES

Richard A. Posner, Reforming The Federal

Judiciary (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Ho Won Jeong respectfully petitions this

Court for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Fourth

Circuit in this case.

OPINIONS BELOW

The Fourth Circuit’s opinion is unpublished but

reproduced at App. at 1-4. Its order denying panel

rehearing and rehearing en banc is unreported but

reproduced at App. 10-11. The District Court’s order

granting Appellees’ motion to dismiss Jeong’s

Complaint is unreported but reproduced at App. at 8-9.

The District Court’s order denying Jeong’s Rule 60(b)

motion regarding its earlier dismissal decision is

unreported but reproduced at App. at 5-7.

JURISDICTION

The Fourth Circuit denied Jeong’s petition for panel

rehearing and rehearing en banc on May 11, 2020. App.

at 10. This Petition is timely filed within 1501 days of

this denial, and this Court has jurisdiction under 28

U.S.C. § 1254(1).

RULE OF CIVIL PROCEDURE INVOLVED

At all relevant times herein, Federal Rule of Civil

Procedure 60(b)(3) has provided:

On motion and just terms, the court may relieve

a party or its legal representative from a final

1

This time period is the extended period set by this Court due to

COVID-19.

2

judgment, order, or proceeding for the following

reasons:

...

(3) fraud (whether previously called intrinsic or

extrinsic), misrepresentation, or misconduct by

an opposing party;

...

FED. R. CIV. P. 60(b)(3).

INTRODUCTION

The plight of a pro se litigant in federal court “is not

an easy one.” Gee v. Pacheco, 495 Fed.Appx 942, 944

(10th Cir. Aug. 31, 2012). Usually people who are

“ignorant of the subtleties of law,”2 such litigants

“present district judges and magistrates with a special

dilemma” because theirs is the “the work of an

untutored hand.” Beaudett v. City of Hampton, 775

F.2d 1274, 1277 (4th Cir. 1985). Because of these

unique challenges, this Court, in cases such as Haines

v. Kerner, 404 U.S. 519, 521 (1972) and Erickson v.

Pardus, 551 U.S. 89, 94 (2007), has required the liberal

interpretation of pro se pleadings and effectively said

that pro se litigants should not be tripped up by

nuances that could easily be explained and/or resolved

if the litigant was made aware of the trap he or she

was walking into.

The Fourth Circuit has provided a succinct and

instructive explanation of how federal courts should

handle pro se lawsuits. Noting that in the “great run

2

Richard A. Posner, Reforming The Federal Judiciary, 185 (2017)

3

of pro se cases, the issues are faintly articulated and

often only dimly perceived,” the Court held that

There is, therefore, a greater burden and a

correlative greater responsibility upon the

district court to insure that constitutional

deprivations are redressed and that justice

is done. So, although the Court of Appeals

cannot mean that it expects the district courts to

assume the role of advocate for the pro se

plaintiff, . . . the district court must examine the

pro se complaint to see whether the facts

alleged, or the set of facts which the plaintiff

might be able to prove, could very well provide a

basis for recovery under any of the civil rights

acts or heads of jurisdiction in the federal

arsenal for redress of constitutional

deprivations.

Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.), cert.

denied, 439 U.S. 970, 99 S.Ct. 464, 58 L.Ed.2d 431

(1978) (emphasis added).

The district court below failed in its duty to be

solicitous to pro se litigants and, in doing so, acted

contrary to this Court’s precedents Haines and

Erickson. As explained herein, all the district court

had to do to flesh out the alleged untimeliness of

Jeong’s pro se Rule 60(b)(3) motion was hold oral

argument and ask him about the issue. Indeed, the

district court had initially scheduled oral argument,

seemingly to do exactly that. However, the district

court canceled the oral argument and then issued an

opinion that not only faulted Jeong for failing to file a

timely Rule 60 motion, but also for not providing an

4

explanation for the untimeliness. This is exactly the

type of whipsaw that Haines and Erickson were

designed to avoid.

While no one is saying that federal judges should

become advocates for self-represented litigants, when

basic a issue – such as timeliness – could be fully

addressed by a court by simply asking the pro se party

why he waited eleven months to file his motion (which,

as he explained in his appellate papers below, related

to stress, health issues, and the difficulty of trying to

find counsel), it is incumbent upon the federal judiciary

to ensure that a litigant is able to fairly advance his

cause on a substantive level. The district court failed

to ensure such fairness; that failure was an abuse of

discretion; and the Fourth Circuit failed to be faithful

to the rule of law for pro se litigants which was

intended to prevent such lack of fairness.

STATEMENT OF THE CASE

I. Factual Background Of Jeong I

A. Jeong’s Longstanding Tenure at GMU

Up until July 31, 2017, when he was terminated,

Jeong worked as a professor at George Mason

University (“GMU”). JA7.3 Prior to then, Jeong had

been at GMU for twenty-one years, the last sixteen as

a tenured professor in the University’s School of

Conflict Analysis Resolution (“S-CAR”). Id. During that

time, he rose steadily and successfully through the

ranks – beginning as a professor in 1996, being

promoted to tenured associate professor in 2001, and

3

“JA” refers to the Joint Appendix filed in the Fourth Circuit.

5

finally being promoted to tenured professor in 2006.

Id. at 7-8.

B. Post-Tenure Review And Jeong’s Grievance

Of Same

In 2014 and 2015 respectively, appellee Kevin

Avruch, the Dean of the S-CAR and Jeong’s first-line

supervisor, issued Jeong two performance evaluations

that Jeong believed were discriminatory.

JA8.

Appellee David Wu, GMU’s Provost, then initiated a

post-tenure review of Jeong’s performance in February

2016. Id.

In response, Jeong, also in February 2016, filed a

complaint with GMU’s University Faculty Grievance

Committee, asserting that Avruch’s actions against

him were unjustified and harmed his career at GMU.

Id.

Two months later, the GMU Committee

unanimously found in favor of Jeong. Its report

concluded that:

Prof. Jeong was aggrieved by the over-reaction

of Dean Avruch who then initiated formal

unsatisfactory performance reviews that have

resulted in a post-tenure review and the

potential loss of employment for Prof. Jeong.

Dean Avruch’s actions have caused harm to the

reputation of Prof. Jeong and have endangered

his standing as an employee.

JA8 (emphasis added).

Soon thereafter, Jeong filed an EEOC Complaint,

which the EEOC dismissed on or about May 13, 2016.

Id.

6

Approximately two weeks later, GMU held a posttenure review meeting with Jeong. Id. The post-tenure

committee was supposed to produce a report soon after

the meeting. Id.

After more than month elapsed, however, GMU

human resources personnel questioned the long delay

in issuing the report and asked if an end date or

expectations should be established. Id. at 8-9.

C. The Post-Tenure Review Committee

Recommends Either Reassignment Or

Sanctions Against Jeong, But NOT

Termination

On August 5, 20164, the post-tenure review

committee finally produced its report. It recommended

that Provost Wu choose one of two options for Jeong:

(i) reassignment of his position or (ii) the imposition of

sanctions. Id. at 9. It did not recommend termination.

D. Jeong Then Files Suit Against GMU

(Jeong I) And The Post-Tenure Review

Committee Changes Its Recommendation

From “Sanctions” To “Termination”

In the meantime, on August 13, 2016, Jeong filed

suit against GMU in the U.S. District Court for the

Eastern District of Virginia. Id. The case, Jeong v.

George Mason University, 1:16cv01027 (Jeong I),

4

Jeong’s Complaint below identifies “August 2, 2016” as the date

of the report. JA8. As the later documents submitted to the Court

by Jeong show, however, that date is incorrect and the report was

actually completed as of August 5, 2016. See JA266-267. In the

interests of accuracy, for purposes of this appeal, Jeong uses

August 5, 2016 as the operative date of the report.

7

alleged race (Asian) and national origin (South Korean)

discrimination, as well as retaliation in violation of

both Title VII and the Americans with Disabilities Act.

Id.

On October 3, 2016, GMU’s in-house counsel filed a

motion to dismiss under Rule 12(b)(1) and (b)(6). Id. In

response, Jeong filed an Amended Complaint,

rendering the initial motion to dismiss moot. Id. The

Amended Complaint included allegations that Dean

Avruch had publicly belittled Jeong and imposed

discipline against him while failing to impose discipline

on similarly-situated white faculty. Id.

GMU’s in-house counsel again filed a motion to

dismiss, this time on November 7, 2016. Id. at 10.

Jeong responded by filing an opposition memorandum

on November 21, 2016. Id. The memorandum, like the

Amended Complaint, specifically alleged that Dean

Avruch was publicly belittling Jeong and imposing

discipline against him even though he was not

imposing discipline against similarly-situated white

faculty. Id.

The very next day, on November 22, 2016, the

post-tenure committee replaced its original August 5,

2016 report with a new report that substituted the

word “termination” for “sanctions.” Id.

E. Jeong I Is Dismissed And GMU Fires Jeong

Just Days Later

On January 26, 2017, the District Court granted

GMU’s motion to dismiss and dismissed Jeong I. Id.

Three days later, Provost Wu sent Jeong a notice of

termination, effective July 31, 2017. Id. Jeong

8

appealed to GMU President Angel Cabrera (the third

appellee in this case), but this appeal was rejected. In

his letter rejecting Jeong’s appeal, President Cabrera

made a point to say that “In addition, I cannot

disregard the recent opinion issued by the local federal

court dismissing the discrimination lawsuit you filed

against the University . . . In dismissing the lawsuit,

the court found your claims to be without any legal

merit.” Id.

II. Relevant Procedural History: Jeong II

A. Appellees Move To Dismiss Jeong II And As

Part Of Their Dismissal Efforts, They

Greatly Minimize The August 5, 2016 PostTenure Committee Report

Based on the above5, Jeong, represented by counsel,

filed the underlying Complaint here – Jeong II. JA2, 613. The crux of Jeong’s new claim was that the

appellees, all of whom are GMU personnel, unlawfully

retaliated against him in violation of Section 1983 by

having his post-tenure review recommendation

changed from “sanction” to “termination” and then

effecting his termination as a direct result of his filing

his lawsuit in Jeong I. Id at 10-11.

As in Jeong I, GMU’s in-house counsel handled the

case.

In doing so, they moved to dismiss the

Complaint, JA11-14, and submitted five exhibits to the

Court to support dismissal, including the November 22,

5

Because this matter involves an initial ruling on a motion to

dismiss, the facts are taken from the Complaint and stated in the

light most favorable to Jeong. See Mylan Labs, Inc. v. Matkari, 7

F.3d 1130, 1134 (4th Cir. 1993).

9

2016 post-tenure review report. JA32-34. According to

GMU’s in-house counsel, the report was affirmative

evidence to show that his termination was justified. Id.

at 25-30. They thus asserted that Jeong could not

plausibly show that his protected activity was the “but

for” cause of his termination. Id. As they stated at the

end of Defendants’ opening memorandum in support of

dismissal: “[t]here are no allegations that could

possibly establish the necessary ‘but for’ causal

connection between the protected activity and

termination.” Id. at 30.

On July 13, 2018, the district court held a hearing

on Appellees’ motion. At that time, the court raised

concerns about the August 2, 2016 report of the posttenure review committee. JA 99. Appellees’ counsel,

however, poo-pooed it and dismissed it out of hand as

merely a “draft.” Counsel stated:

Frankly, we’re not sure what he’s talking about

there. We do know that there was a draft that

was worked on, but it was not attached to any of

the exhibits because there was no – there was

no initial report that was then changed.

JA100 (emphasis added). Counsel further stated: “The

final report … which we have attached to our motion,

is the only report of the committee.” Id. (emphasis

added).

In response, Jeong’s counsel disputed the validity of

the final November 22, 2016 report and turned back to

the August 2, 2016 post-tenure committee report.

JA113. He emphasized that the initial report did not

recommend termination, but the “final” report did and

10

he noted that the only intervening events that occurred

between those two reports were the filing of Jeong’s

lawsuit in August 2016 and the filing of Jeong’s

opposition memorandum just a day before the

committee recommendation changed. JA114. He

stated:

. . . for things that predated protected activity

that were not terminable, but suddenly become

terminate activity after you engage in protected

activity, that the defendant has to explain why

it suddenly became terminable after a protected

activity when it was not previously.

Id. (emphasis added). He explained that the proper

inference from the post-tenure committee’s sudden

change of heart is that one or more of the three

appellees read Jeong’s recently filed legal documents

and influenced the committee to make a harsher

recommendation. JA117-118.

In rebuttal, appellees’ counsel again dismissed the

notion that there had been any kind of final posttenure committee report in August and that it was, at

best, a draft. Counsel stated:

I just want to address a couple of fact – well, I

guess not factual things. But first of all,

regarding this August draft – so it was not – the

reason why Dr. Jeong has this is because it was

produced to him during discovery in the first

litigation. It was not a final decision.

And so, I just want Your Honor to understand.

I understand we’re getting beyond the

complaint, but I don’t believe counsel is correct

11

that it was provided to him as a final result of

the committee because it wasn’t. It was a draft

that was done, and it was produced during the

first litigation.

JA127 (emphasis added).

B. The District Court Dismisses Jeong II, In

Part, Based On The Alleged Lack Of Value

Of The August 5, 2016 Report

Ultimately, at the conclusion of oral argument, the

district court dismissed Jeong’s lawsuit. JA139.

Regarding the August 2016 report, the district court

noted that “we don’t have the August report before the

Court,” JA135, and then explained that he did not

believe that Jeong had alleged facts sufficient to make

a plausible claim of retaliation that connected the filing

of his lawsuit in August 2016 or his Opposition

Memorandum on November 21, 2016 and the changing

of the post-tenure committee report on November 22,

2016. JA136.

C. Jeong, Now Pro Se, Files His Rule 60(b)(3)

Motion And Submits Documentation That

Shows That The August 5, 2016 Report Was

Not A Mere Draft But Instead Was A Report

That Was Intentionally Changed After

Jeong Filed Jeong I.

Eleven months and thirteen days after dismissal,

Jeong returned to the District Court and filed a

“Motion To Reopen, Reconsider and Reverse Grant of

Defendants’ Motion to Dismiss” pursuant to FED. R.

CIV. P. 60(b)(3).

JA140-142. Although he had

previously been represented by counsel, Jeong now

12

appeared pro se. He even certified in writing, under

penalty of perjury, that no attorney had prepared or

assisted in the preparation of his submissions. JA143.

Jeong’s motion was premised on his assertion that

GMU’s attorneys had made misrepresentations and

false statements to the Court at the motion to dismiss

stage and that they had thereby “hinder[ed] the truthseeking function of the judicial system.” JA140. In

particular, Jeong claimed that GMU’s attorneys had

falsely asserted that the August 5, 2016 post-tenure

report was simply a draft and had falsely stated that it

was not a final document. JA149-154.

In support of his assertion that the August 5, 2016

report was not simply a draft, Jeong submitted

numerous items of documentary evidence, to wit:

• An August 1, 2016 e-mail from the Chair of

the committee stating: “Attached is a first

draft of the report to the Provost. It does

not have a recommendation yet … It

seems that the Provost cannot terminate

Jeong unless we recommend it.” JA255

(emphasis added);

• An e-mail the next day from another

committee member replying to the first email and saying: “I have suggested a few

changes and have drafted a possible last

paragraph.

Basically I argue that

Professor Jeong did not perform his

duties and the Provost can sanction

him.” JA258 (emphasis added);

13

• A third e-mail from the third committee

member stating: “Bob, why don’t you take a

look at this version, then send it around one

more time for final review and we can

send it on to the Provost.” JA261

(emphasis added);

• A fourth e-mail eleven minutes later, from

the second member asking him to “change

[his] first name to James, since this is a

formal memo.” JA264;

• A fifth e-mail from the Chair, affirming

everyone’s agreement regarding the memo

and referencing GMU’s in-house legal

department, saying “I am still waiting for

legal to decide but I may bring it by on

Monday just in case.” JA271 (emphasis

added); and

• The final version of the report, dated August

5, 2016, that was circulated. JA266-267.

In other words, the documentary evidence submitted by

Jeong painted a clear picture of a process that had

reached fruition and conclusion as of August 5, 2016 –

before Jeong filed his lawsuit on August 13, 2016.

Jeong also submitted evidence that showed the

dubious conduct vis-à-vis the post-tenure report that

occurred after he filed his lawsuit. Specifically, in

documents he provided to the district court, Jeong

showed that:

• On August 20, 2016, almost ten days after

Jeong filed suit, one of the committee

14

members circulated a new outline “of what

we might say in a revised and expanded

memo to the Provost”; The e-mail which

attached the outline also ominously stated: “I

will be in next week and we can talk about

our strategy and the conflicting

instructions we seem to be getting.” JA271

(emphasis added); see also JA274 (the

outline); and

• On August 22, 2016, the committee put

together a new report that was virtually

identical to the report that was ultimately

issued on November 22, 2016. In other

words, the word “sanctions” was specifically

changed to “termination” almost immediately

after Jeong filed his lawsuit and, by

inference, based on the “conflicting

instructions” that were being provided to the

committee. JA276-277.

This evidence additionally showed that the report itself

had been largely completed by late August 2016, but

then conspicuously sat idly by for months for no good

reason. Only after Jeong filed his opposition to GMU’s

motion to dismiss the Amended Complaint in Jeong I,

did GMU then suddenly takes action.

15

D. Without A Hearing And Without Ever

Hearing From Jeong In Person, The

District Court Denied Jeong’s Rule 60

Motion As Untimely

Initially, the district court scheduled a hearing on

Jeong’s Rule 60 motion. JA2. Just two days before the

hearing, however, the district court canceled it and

denied Jeong’s motion on the grounds that it was

untimely. JA434-437. Without inquiring as to what

kinds of facts and circumstances were behind Jeong’s

decision to wait almost a year before filing his motions,

court simply explained as follows:

Here, Plaintiff moved for reconsideration under

Rule 60(b)(6) on June 26, 2019, eleven months

and thirteen days after the Order was entered,

within the one-year time limit imposed by Rule

60(c) but far longer than the three to four

months the Fourth Circuit has held is

unreasonable absent a valid explanation.

Plaintiff has offered no explanation whatsoever

for this delay. Furthermore, he does not identify

any new information that recently became

known to him or any other basis for

reconsideration that was unknown to him when

the Order was entered in July 2018. Absent

such an explanation, Plaintiff’s motion is

untimely.

JA436.

16

E. Jeong Appeals The District Court’s Denial

Of His Rule 60(b)(3) Motion, But The

Fourth Circuit Affirms The Denial

Jeong appealed the district court’s decision, but the

Fourth Circuit affirmed it. The Court of Appeals

explained:

Appellees placed Jeong on notice that he needed

to show that his motion was filed within a

reasonable time, and Jeong simply failed to

address the issue in any meaningful way. Given

that Jeong had the opportunity to respond to a

clearly delineated issue and that he neither did

so nor requested further time or assistance, we

find that the district court did not abuse its

discretion in denying the Rule 60(b) motion

without further inquiry or a hearing.

Jeong v. Cabrera, 2020 WL 1487697at *1 (4th Cir. Mar.

25, 2020).

As well, while it recognized that Jeong filed his Rule

60 motion pro se, the Fourth Circuit stated that the

solicitude afforded to pro se litigants “does not

transform a district court into an advocate for the pro

se litigant.” Id. As such, it rejected Jeong’s position

that the district court, in analyzing his pro se Rule 60

motion, “should have sought further information [from

Jeong] or held a hearing [on the Rule 60 motion]”

before it ruled on the motion. Id.

Believing this latter issue – which is dispositive of

the overall analysis for the Rule 60 motion itself – is at

odds with this Court’s precedents, Jeong now petitions

this Court for certiorari.

17

REASONS FOR GRANTING THE WRIT

I. This Court Should Grant Certiorari Because

The Decisions Below Conflict With This

Court’s Precedents In Haines And Erickson

Fed. R. Civ. P. 60(b) “invest[s] federal courts with

the power in certain restricted circumstances to ‘vacate

judgments whenever such action is appropriate to

accomplish justice.’” Compton v. Alton S.S. Co., Inc.,

608 F.2d 96, 101-102 (4th Cir. 1979) (quoting Klapprott

v. United States, 335 U.S. 601, 614-15 (1949)). This

power “rests within the district court’s equitable

powers,” National Org. for Women v. Operation Rescue,

47 F.3d 667, 669 (4th. Cir. 1995), and requires a court

to engage in “the delicate balancing of ‘the sanctity of

final judgments . . . and the incessant command of the

court’s conscience that justice be done in light of all the

facts.’” Compton, 608 F.2d at 102 (quoting Bankers

Mortgage Co. v. U.S., 423 F.2d 73, 77 (5th Cir. 1970)).

Equitable considerations are particularly important

in balancing these interests.

As such, “any

considerations of the need ‘to expedite cases, to fully

utilize the court’s time, to reduce overcrowded

calendars and to establish finality of judgments * * *

should never be used to thwart the objectives of the

blind goddess’ of justice itself.” Compton, 608 F.2d at

102 (quoting Boughner v. Secretary of Health, Ed. &

Welf., U.S., 572 F.2d 976, 978-79 (3d Cir. 1978)).

18

A. This Court’s Precedents Showing THE

Federal Judicial System’s Longstanding

Latitude When Dealing With Pro Se Litigants

Along the same lines as the equitable considerations

underlying Rule 60 motions, federal courts are required

to accord pro se litigants latitude when they appear

before them. Haines v. Kerner, 404 U.S. 519, 520–21

(1972) (per curiam). A pro se complaint, for example,

“is to be liberally construed, ... and ... must be held to

less stringent standards than formal pleadings drafted

by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, (2007)

(internal quotation marks and citations omitted). And

indeed, this Court has recognized that pro se “litigants

cannot . . . be expected to frame legal issues with the

clarity and precision ideally evidence in the work of

those trained in law.” Beaudett v. City of Hampton, 775

F.2d 1274, 1276 (4th Cir. 1985). Cf. FED. R. CIV. P. 8(f)

(“All pleadings shall be so construed as to do

substantial justice”).

A litigant’s pro se status is particularly important

where, as here, a plaintiff has raised a federal civil

rights case. As the Fourth Circuit has instructively

explained:

Th[e] solicitude for a civil rights plaintiff with

counsel must be heightened when a civil rights

plaintiff appears pro se. In the great run of pro

se cases, the issues are faintly articulated and

often only dimly perceived. There is, therefore,

a greater burden and a correlative greater

responsibility upon the district court to

insure that constitutional deprivations are

redressed and that justice is done. So,

19

although the Court of Appeals cannot mean that

it expects the district courts to assume the role

of advocate for the pro se plaintiff, . . . the

district court must examine the pro se complaint

to see whether the facts alleged, or the set of

facts which the plaintiff might be able to prove,

could very well provide a basis for recovery

under any of the civil rights acts or heads of

jurisdiction in the federal arsenal for redress of

constitutional deprivations

Gordon, 574 F.2d at 1151.

B. The District Court Failed To Abide By This

Court’s Precedents in Haines And Erickson,

And Thus Abused Its Discretion When,

Without A Hearing, It Denied Jeong’s Pro

Se Rule 60(b)(3) Motion On The Ground Of

Untimeliness

Here, the district court below did not engage in any

substantive analysis of the merits of Jeong’s Rule

60(b)(3) motion. Instead, the sole basis upon which it

denied the motion was that it was untimely. JA436. It

concluded that although the motion met the one-year

filing deadline prescribed by Rule 60(c), it was

nevertheless not filed “within a reasonable time,” as is

also required.6 Id. at 435-436. See Werner v. Carbo, 731

F.2d 204, 207 n.1 (4th Cir. 1984). This ruling is an

abuse of discretion and is contrary to this Court’s

precedents in Haines and Erickson.

6

In relevant part, Rule 60(c) states that “[a] motion under Rule

60(b) must be made within a reasonable time—and for reasons (1),

(2), and (3) no more than a year after the entry of the judgment or

order or the date of the proceeding.” FED. R. CIV. P. 60(c).

20

The abuse of discretion committed by the district

court is its cancelling of the hearing it had set to

address the Rule 60 motion. If the hearing had taken

place, Jeong would obviously have appeared before the

court in person and would have been able to fully

explain the many reasons – including the difficulty in

trying to find an attorney to help him and the

emotional distress caused by court’s initial dismissal

ruling7 -- that justified his delay. At that point, the

district court would have had a proper record upon

which to examine this key. While casting no aspersions

on the district court, its decision to abruptly cancel the

hearing deprived Jeong of a critical opportunity to

amplify and explain the grounds for his motion.

Jeong addressed the timeliness issue only as to the

one-year deadline for Rule 60 motions, not the

“reasonable time” component. He clearly thought he

had addressed the issue appropriately. However, in

truth, he had not, because, lacking legal training,

Jeong did not realize the Rule 60 timeliness issue

involved a two-prong inquiry. See, e.g., JA431. As such,

an astute and appropriately solicitous District Court

should have immediately recognized that Jeong did not

fully grasp the timeliness questions related to his

motion and that he needed an opportunity to more fully

address the issue. As is well settled, “[o]ral argument

gives parties a chance to flesh out their existing

theories of the case.” United States v. Liggins, 155

F. Supp.3d 665, 668 (N.D. Miss. 2016).

7

Although these assertions are beyond the record of this case, they

are proffered to show that Jeong did indeed have colorable and

valid reasons behind why he waited as long as he did to file his

Rule 60 motion.

21

Federal courts routinely set motions for oral

argument in lawyered cases when they have specific

concerns about the issues before them. See, e.g., Estate

of Grieco v. National Medical Consultants, P.C., 2018

WL 4562405 at *2 (D.N.J. Sept. 24, 2018); (“The Court

asked Mr. Brazza probing questions at oral argument

to flesh out the record on this issue.”) (emphasis

added); Price & Pierce Intern. Inc. v. Spicers Intern.

Paper Sales, Inc., 1985 WL 1985 at *2 (S.D.N.Y. June

28, 1985) (“In a further effort to flesh out the issue, the

Court heard oral argument . . .”).

Oral arguments have even greater significance

where, as here, a litigant is acting pro se. As cogently

observed by Judge Posner, when analyzing pro se

pleadings, “hearings can be a useful means of ‘trying to

determine what the plaintiff is alleging.’” Beal v.

Foster, 803 F.3d 356, 359 (7th Cir. 2015) (quoting

Williams v. Wahner, 731 F.3d 731, 734 (7th Cir. 2013)).

And, indeed, failing to provide such a litigant a hearing

can be reversible error. Id.

Here, the district court abused its discretion in

analyzing the timeliness issue when, knowing it had a

pro se litigant before it who did not fully grasp the

nature of the timeliness issue upon which it was set to

rule, chose to preclude the necessary fleshing out of the

record on that issue. The Fourth Circuit’s affirmance

blesses this abuse of discretion and in doing so, goes

against the rules of law for pro se litigants. Indeed, the

Fourth Circuit’s timeliness holding wrongly

presupposes that Jeong was actually given a fair

opportunity to articulate a reason for his delay and

have the District Court determine its validity. That

22

never happened here, and that is why the denial of the

motion on this ground was an abuse of discretion and

why both that decision and the Fourth Circuit’s

affirmance are contrary to this Court’s precedents in

Haines and Erickson.

II. This Case Is An Ideal Vehicle To Resolve The

Question Presented

This case is an ideal vehicle to resolve the question

presented here involving standards for pro se litigants.

The question has been squarely presented at all levels

of appeal, and, indeed, Jeong specifically asked the

Fourth Circuit to examine the issue in a petition for en

banc review.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

RICHARD F. HAWKINS, III

Counsel of Record

THE HAWKINS LAW FIRM, PC

2222 Monument Ave.

Richmond, VA 23220

(804) 308-3040 (telephone)

(804) 308-3132 (fax)

rhawkins@thehawkinslawfirm.net

Counsel for Petitioner