# Petition — Peltzman v. Kaufman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1244%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 431 U.S. 953 ## Text ~ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1244%3A1. Public record. Not legal advice.