Petition — Peltzman v. Kaufman

~ supreme Uourt, U.

— FILED

| FEB 14 4977

MICHAEL RODAK, JR., CLERK

——!

IN THE

SUPREME COURT OF THE UNITED STATES

October term, 1977

76-1117

No. , Misc.

ARCHIE PELTZMAN, PETITIONER,

V .

IRVING R. KAUFMAN,

CHIEF JUDGE, RESPONDENT.

MOTION FOR LEAVE TO FILE PETITION OR

WRIT OF MANDAMUS, AND BRIEF IN

SUPPORT THEREOF

Archie Peltzman

Petitioner, Pro Se,

@/o Eve Katz

2483 W. 16th St.

B'klyn, N.Y. 11214

i

TABLE_OF CONTENTS _

OPINIONS BELOW ...ccccccccvccevcevees

JURISDICTION cc cere ccccccccccseevess

QUESTIONS PRESENTED .....2cceeeceecveess

STATUTES INVOLVED .... cece ecevccvceves

STATEMENT ..cccccccccccccsccccccccscce

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

CONCLUSION ..ccccccccccccccceseccesecs

APPENDIX A

Letter from pro se clerk dated

January 17, 1977, re docket fee

or oath of forma pauperis..........

CITATIONS

Adams v. U.S. ex rel McCann,

317 U.8. 269, (31942) cccccceceseceoce

Bulk Carriers v. Arguelles

400 U.S. 358, (1971 cccccccccecccceses

Ex parte Abdu, 247 U.S.27,(1918).....

Ex parte Flippin, 94 U.S. 350 .......

Ex parte R. Co. 101 U.S. 720 ....-.-..

Ex parte Burtis, 103 U.S. 238,.......

Ex parte Peru, 318 U.S. 578, (1943)..

Ex parte Davenport, 6 Pet (U.S.)66l..

9

10

ii

CITATIONS

Page

Ex parte Newman 14 Wall

Premed BES 646400660086 00466008800 10

Hazen v. Hardee,78 F2% 230........ 14

Hazel-Atlas Glass Co.,v.Hartford-

Empire Co. 322 U.S. 238, (1943).... 3,15

Kanatser v. Chrysier Corp.,199

F24 610, (1952) cert den 344 U.S.

Pe CH 6666000406044 nse dAOH OS: 13

LaBuy v. Howes Leather Co.,

De Be Galle Beeedsavcensces TUTTTTTT 13

McClellan v. Carland, 217 U.S.

Pe Ss ob eee peewee he oe ee cee i)

Peltzman v. Central Gulf Lines,

Inc., 497 F294 332 (2d cir) (1974).. 12

Peltzman v. Central Gulf Lines,

Inc; 523 F2d 96 (2d Cir 1975)...... 12

Peltzman v. Central Gulf Lines,Inc;

423 U.S.107, (1976)Cert. denied....12,15

424 U.S.979, (1976)rehearing denied.. 12

Roche v. Evaporated Mild Assn.

Bae Welle Gee Gee uhh eee sh ecaseaccis 10

Semel v. U.S.158 F29 231 (1946)..... 14

Thielebeule v. Nordsee Pilot,

oo F fo M OF. ee ll

US Alkali Export Assn. v. US

pet Wee Bes Cee eeceacecosseesée 13

Virginia v. Rines, 190 U.S. 313..... 10

Will v. U.S., 389 U.S. 96..... Eee 13

iii

STATUTES INVOLVED

Page

Title 28 USC Sec 1651 (a) 1946..... 2

"The Supreme Court & all courts

established by Act of Congress

may issue all writs necessary

Or appropiate in aid of their

respective jurisdictions &

agreeable to the usages &

principles of law."

Title 28 US Sec 1916......+.-. seooss FeGeds

"In all the Courts of the U.S.,

seamen may institute & prosecute

suits & appeals in their own manes

& for their own benefit for wages,

or salvage, or for the enforcement

of laws enacted for their health or

safety without prepaying fees or costs

or furnishing security thereof.

(June 25, 1948, C646 62 Stat. 955)

Title 28 USC Sec 1921......-ee-e2eee. ll

Title 46-"General Maritime Law"

(See especially Sec 599a).........8,11,12,B

U.S. Constitution, Article 3, Sec 2... 2

U.S. Constitution 5th & 14th

SEE CCCCCUC TET ECCT TTC CCT

MISCELLANEOUS

51 Col LR 977, (1951), “Extrordinary

Writs in the Supreme Court since Ex

parte Peru." Richard F. Wolfson...... 2,9

52 Michigan LR 479, 1954-Norris,

"Seaman as Wards of Admiralty"”....... 12

7 Moore, Sec 60:33 at 512.......... 0 eh424S5

Federal Rules of Civ. Procedure...... 13,15

Rule 6O(b) F.R.C.Pecccccevceses 2,4,6,7,16

Rule 54, U.S. Supreme Court Rules.....2,3

IN THE

SUPREME COURT OF THE UNITED STATES

October term, 1977

No. , Misc.

ARCHIE PELTZMAN, PETITIONER,

Ve

IRVING R. KAUFMAN,

CHIEF JUDGE, RESPONDENT.

MOTION FOR LEAVE TO FILE PETITION

FOR WRIT OF MANDAMUS

The petitioner moves the Court for

leave to file the petition for a writ of

mandamus hereto annexed; & further moves

that an order & rule be entered & issued

directing the Honorable The United States

Court of Appeals For the Second Circuit, &

the Honorable Chief Judge, Irving R.

Kaufman of that Court, to show cause why a

writ of mandamus should not be issued

against them in accordance with the prayer

of said petition, & why your petitioner

should not have such other & further re-

lief in the premises as may be just and

meet.

Archie Peltzman

Petitioner, Pro Se

c/o Eve Katz

2483 W.16th St.

B'klyn, N.Y. 11214

IN THE

SUPREME COURT OF THE UNITED STATES

October term, 1977

No. »Misc.

ARCHIE PELTZMAN, PETITIONER,

Vv.

IRVING R. KAUFMAN,

CHIEF JUDGE, RESPONDENT.

PETITION FOR A WRIT OF MANDAMUS TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, & THE

HONORABLE IRVING R. KAUFMAN, CHIEF

JUDGE OF THAT COURT.

OPINIONS BELOW

No opinion was filed by the Court of

Appeals.

Petitioner was informed by letter

(Appendix a) January 17, 1977, from pro se

clerk that Circuit Court would not docket

appeal without fifty dollar fee or an oath

of forma pauperis.

No opinion was filed by District

Judge in denying a Rule 60(b) motion to

vacate a final judgment, on grounds of

fraud on the Court by attorneys, perjury

by witnesses, & newly discovered evidence.

JURISDICTION

1. The jurisdiction of this Court is

invoked under 28 U.S.C. Sec 165l(a) 1946,

& Article 11l Sec 2, of U.S. Constitution.

Ex parte Peru, 318 US 578, (1943), Adams

vy United States ex rel. McCann 317 US 269,

(1942). Rule 54 of Rules of Supreme Court.

Notice of appeal from District Court's

decision was filed December 13, 1976. The

partial record was brought up to the Court

of Appeals on December 30, 1976, & a temp-

orary docket nr of T-6853 was given to pet-

itioner. (District Court Clerk is search-

ing for the lost documents).

-3-

2. The jurisdiction of this court is

invoked under the inherent jurisdiction

which all Courts have to protect the in-

tegrity of the judicial process, & under

the supervisory powers of this Court on

the lower Courts. Hazel-Atlas-Glass Co.

v Hartford-Empire Co. 322 US 238, 1943.

QUESTIONS PRESENTED

1. Did the Court of Appeals for the

second circuit have the power to demand

a docketing fee, or an oath of forma

pauperis from a seaman, who sued a steam-

ship company for wrongful discharge, &

who had previously had his case docketed

in this Court, & in the Court of Appeals

without paying the docket fee?

2. Does Rule 54 of Rules of the Sup-

reme Court also apply to Courts of Appeal

in all Circuits?

-4-

STATEMENT

1. On November 23, 1976, petitioner

filed a 60(b) motion in District Court

that had previously granted summary. judg-

ment twice in a seaman's action for wrong-

ful discharge, dismissing his complaint, &

seeking to vacate such final judgment on

grounds of fraud by attorneys, newly dis-

covered evidence, & perjury by witnessess.

2. On November 24, 1976, District Court

denied such motion, without opinion & this

was entered in docket file on November26,

1976.

3. The motion consisted of an affidavit

of seven pages, a legal memorandum of

eleven pages, & partial excerpts of six

pages of a separate Appendix which con-

tained ninety-nine pages of Court doc-

uments from previous Court actions in

State Court, Federal Court & U.S. Supreme

Court. (R41) (this separate appendix has

been lost in District Court.)

-5-

4. On December 3, 1976 defendant

Central Gulf Lines, filed an affidavit

in opposition, with two exhibits which

were the District Court's opinion in the

second summary judgment motion, & the

second circuit Court of Appeals second

decision after remand. (R42)

5. On December 7, 1976, petitioner

filed reply pleadings. (R43)

6. On December 13, 1976, petitioner

filed notice of appeal to second circuit

Court of Appeals in District Court.

7. District Court clerk informed pet-

itioner the record was in warehouse & h®

would endeavour to get the record in

about a weeks time.

8. On December 30, 1976, the record in

District Court, minus the missing exhibits

& Other documents were filed in the Court

of Appeals, & petitioner was given a temp-

Orary docket nr T-6853, without paying the

-6-< | al bo

docketing fee in District Court or the ) without consideration of the type of

Court of Appeals, after explaining to : €Vidence on which the petitioner intended

both clerks that this action had been to rely, & prevents any effective action

previously appealed without payment of which Rule 60(b) was enacted to correct,&

docketing fees. constitutes both an abuse of judicial

9. On January 17, 1977, petitioner | power & abnegation of judicial duty & a

filed a motion in Court of Appeals seek- means of defeating this Court's appellate

ing a summary reversal of District Court's jurisdiction, in a manner not remediable

denial of his Rule 60(b) motion. through the ordinary course of appeal.

10. By letter dated January 17, 1977, The ruling of the Court of Appeals is

from pro se clerk, petitioner was notified therefore one which this Court can &

that his motion would not be filed absent Should correct by writ of mandamus.

the docket fee or an oath of forma REASONS FOR GRANTING THE WRIT

pauperis. . 1. There is no other feasible way to

Petitioner contends that the refusal review judicial disregard of the federal

of the second circuit Court of Appeals to Statute 28 USC Sec 1916, except by a writ

docket a seaman's case which had previously of mandamus.

been appealed without payment of the fee, | 2. The second circuit Court of Appeals

both in this Court & in the second circuit, has decided an important question, concerrm

prevents consideration of the fraud on the ing the power of circuit Courts of Appeal

Court charged in petitioner's motion, to prevent appeals being docketed by a

-8-

seaman without prepayment of costs & fees,

in a way which is prohibited by statute, &

is contrary to established custom & pract-

ice by this Court & every other Circuit

Court of Appeals, including the second cir

cuit.

3. The decision by the second circuit

in refusing to docket appeal by a seaman

was wrong, & negates the Congressional

policy protecting seamen in over one hund-

red statutes enacted for their protection.

It constitutes an uSurpuation of power not

conferred on the Court to pick & choose

which seamen's cases shall be docketed

without prepayment of fees & costs.

POINT 1

THERE IS NO OTHER FEASIBLE WAY TO RE-

VIEW JUDICIAL DISREGARD OF THE FEDERAL

STATUTE 28 USC Sec 1916, EXCEPT BY A WRIT

OF MANDAMUS.

It is an elementary rule that a writ

of mandamus may be used to require an

~~

inferior court to decide a matter within

its jurisdiction & pending before it for

judicial determination, but not to control

its decision. Ex parte Flippin, 94 US 350;

Ex parte R. Co. 101 US 720; Ex parte Burtis

103 US 238.

In McClellan v. Carland 217 US 268,

(1910) it was recognized that mandamus be-

came available where the decision of the

lower court might otherwise defeat appell-

ate jurisdiction-

"We think it is the true rule that

where a case is within the appellate juris-

diction of the higher court, a writ of

mandamus may issue in aid of appellate jur-

isdiction which might otherwise be defeated

by the unauthorized action of the court

below."

The sole function of the writ is to

require the court to act where it has re-

fused to do so. Ex parte Davenport 6 Pet

-10-

(US) 661; Ex parte Newman, 14 Wall (US)

152, Virginia v. Rines 100 US 313.

The traditional use of"mandamus" in

aid of appellate jurisdiction, both at

common law & in federal courts, has been

to confine an inferior court to lawful

exercise of its prescribed jurisdiction,

or to compel it to exercise its author-

ity when it is its duty to do so. In |

Roche v. Evaporated Milk Assn. 319 US 21,

(1943).

POINT 11

THE SECOND CIRCUIT COURT OF APPEALS

HAS DECIDED AN IMPORTANT QUESTION, CON-

CERING THE POWER OF CIRCUIT COURTS OF

APPEAL TO PREVENT APPEALS BEING DOCKETED

BY A SEAMAN, WITHOUT PAYMENT OF COSTS &

FEES, WHICH IS AUTHORIZED BY STATUTE, &

HAS BEEN THE PRACTICE & CUSTOM IN THIS

COURT & EVERY OTHER CIRCUIT COURT OF

APPEALS, INCLUDING THE SECOND CIRCUIT.

elie

In Thielebeule v. Mordsee Pilot 1972 AMC

50-

Where two statutory provisions con-

flict, the specific provision must be

deemed to control over the general one.

In light of the Congressional policy

underlying provisions of the Judicial

Code dealing with seamans action in

general, & 28 USG Sec 1916 in particular,

Sec 1916 must be read as exempting sea-

man from prepaying the "expenses" listed

in Sec 1921-Reversed, J Hays, Moore, &

Mulligan (29%cir).

The court below was not authorized

to circumvent, by demanding a docket fee,

or an oath of forma pauperis, the policy

established by Congress, in Title 28 Sec

1916, that seamen may proceed without pre-

payment of fees or costs or furnishing

security therof. See petitioner's pre-

vious appeals in this Court & 2nd circuit

where fees were not paid. Peltzman v.

-12-

Central Gulf Lines 497 F2% 332 (2d Cir

1974) aff'd following remand, 523 F2¢ 96

(2d Cir 1975) cert den, 423 US 1074, 1976,

rehearing den 424 US 979, 1976.

POINT 111

THE DECISION BY THE SECOND CIRCUIT IN

REFUSING TO DOCKET APPEAL BY A SEAMAN WAS

WRONG, & NEGATES THE CONGRESSIONAL POLICY

PROTECTING SEAMEN IN OVER ONE HUNDRED

STATUTES ENACTED FOR THEIR PROTECTION. IT

CONSTITUTES A USURPATION OF POWER, NOT CON

FERRED ON THE COURT TO PICK & CHOOSE WHICH

SEAMAN'S CASE SHALL BE DOCKETED WITHOUT

PREPAYMENT OF FEES & COSTS.

See Michigan Law Review Vo 52 479-,

1954-Norris- "Seaman as Wards of Admiralty}

containing statutory, historical & de-

cisional basis for rejecting 2nd circuits

refusal to docket petitioner's case, as

being contrary to the spirit, letter &

statutes of the general maritime law.

=) 3@

In Bulk Carriers v Arquelles g00 US

358, 1971, this Court has held that the

statutory sections of the General Mari-

time Law controls a seaman's employment &

conditions of employment.

In La Buy~v. Howes Leather Co 352 US

249, “district judge displayed a persist-

ent disregardof the Rules of Civil Proced-

ure promulgated by this Court" as to which

mandamus was a proper remedy "as a means

of policing compliance with the procedural

rules." Will v. US 389 US 96.

See US Alkali Export Assn. v. US 325

US 196, 1945=ordinary hardship to litigant

plus "frustration of Congressional Policy"

justifies writ cf Kanatser v. Chyrsler

Corp 199 F2¢ 610,(1952) cert den 344 US

921, 1953.

See Ex parte Abdu 247 US 27, 1918-

Clerk of Court of Appeals declined to file

record without deposit to secure costs &

alge

see Semel v. US 158 F24 231, 1946, app-

lication to require district clerk to

transmit notice ofappeal,

Object of"mandamus" is to enforce

duty which law requires respondent to

perform. Hazen v. Hardee 78 F22 230.

Finally petitioner argues that the

integrity of the judicial process & the

due process owed to a litigant who is

charging that his pleadings have been

ignored both in District Court & in the

second appeal in Circuit Court of Appeals,

that fraud on the court has been prac-

ticed by attorney's involved in this case,

with an abnegation of the judicial respon-

sibility to inquire & protect the integrity

of the court's proceedings.

Prof. Moore defines "fraud upon the

Court" as "that species of fraud per-

petrated by officers of the Court so

that the judicial machinery can not per-

form in the usual manner its impartial

-15-

task" (7 Moore Sec 60:33 at 512).

See Hazel-Atlas Glass Co v.Hartford-

Empire Co (supra). See petitioner's Re-

ply Brief in Peltzman v. Central Gulf

Lines, October term 1975 US Supreme Court,

No 75-782 for specifics of issues of fraud,

perjured testimony, & a blatant disregard

of the Federal Rules of Civil Procedure &

Summary Judgment Rule (p 5).

CONCLUSION

Wherefore, petitioner prays:

1. That a writ of mandamus issue from

this Court directed to the Honorable US

Court of Appeals for the second circuit,

& to the Honorable Chief Judge Irving R.

Kaufman, of said court, requiring said

Honorable Irving R. Kaufman, to show

cause on a day to be fixed by this court

why mandamus should not issue from this

court directing said Honorable Irving R.

Kaufman, to docket petitioner's appeal &

to consider his motion for a summary

= (’ PE NN LX H UNITED STATES COURT OF APPEALS

: . i O1!D CIRCUIT

reversal of the District Courts decision sauna CouRTHOUSE

denying his motion to vacate a final DANIEL FUSARO Peasy Souans

CLERK NEW YORK 10007

judgment under Rule 60(b).

2. That petitioner have such additional

relief & process as may be necessary and

appropriate in the premises. January 17, 1977

>

Archie Peltzman

c/o Eve Katz

2428 Ww. 16th Street

VY Brooklyn, New York 11214

Archie Peltzman % Re: 17-6853

Petitirszner, Pro Se

Respectfully submitted

February a ,1977 Dear Sir

iy 4

This will acknowledge receipt of your

motion papers dated January 17, 1977.

Please be advised that we are unable

to file them absent a check for $50.00 or a

motion for leave to proceed in forma pauperis.

We will retain your appellate papers in our

files awaiting advice from you.

Sincerely,

Ole Web cuthice -

Opv Olga Valentine

pro se law clerk's office