Petition — Peltzman v. Central Gulf Lines, Inc.

( ‘PTrsS

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

Ocroser Term, 1979

77> 1516

ARCHIE PELTZMAN,

: Petitioner,

:

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

ARCHIE PELTZMAN

Petitioner,Pro Se,

2483 W.16th St,

Brooklyn,N.Y.11214

i

TABLE OF CONTENTS

OPINIONS BELOW ........ eeeeese *

POE EEG cceeceececeos ceeeeses

QUESTIONS in ace eenehed

STATEMENT es*eeee# e*eeeeseeee#e#e#s#ee#ee#e#*#e#*e##e#@«#

+ sgipy 9S . 0 Ff, . Se

REASONS FOR GRANTING THE WRIT...

CONCLUSION e*eeeeest#ee#se#eee#se#eeee#e#e#e#e#e##e#e#*#

APPENDIX A

District Court order dated

November 24,1976,denying

60 (b) motion to vacate

SUR, « 0 6056006660 606646

APPENDIX B

U.S.Court of Appeals Order

dated January 26,1978

affirming order of District |

Court eoeereeeeeneeneeeeeeeee

APPENDIX C

U.S. Court of Appeals Order

dated March 15,1978 denying

petition for rehearing ....

APPENDIX D

U.S. Court of Appeals Order

dated March 15,1978.denying

N

~~ . WwW WwW

16

la

2a

4a

petition for rehearing en banc. 5a

ii

TABLE OF CONTENTS

APPENDIX E- _

U.S. Court of Appeals Order

dated June 24,1977,denying

motion to proceed on appeal

under Title 28 Sec 1916,

without payment of docket fee .. 6a

APPENDIX F

U.S. Court of Appeals Order

dated July 27,1977,denying

motion for reconsideration

of order dated June 24,1977 .... 7a

_ APPENDIX G

U.S. Court of Appeals Order

dated November 29,1977 granting

appelles motion to dismiss

appeal unless appellant posts

a bond within 30 days fpr costs .. 8a

APPENDIX H

U.S. Court of Appeals Order

dated January 4,1978,granting

appellants motion to

reconsider order of NOVEMBER 29-77 .9a

APPENDIX I

Index of Exhibits 1-22 filed

in District Court,November 23,1976 . 10a

CITATIONS

Adamowski v Bard,193 F2d 578,

(3rd Cir 1952),cert denied 343 US

906,1952 e*eeee4nee*e#neees@#ee#ee#ee##e7#*#ee#nsee#*e#e#eee#ee#e#e# 8

iii

CITATIONS

_Page _

Bainbridge v Merchants Transportation

Co,287 US 280, (1932) ..ccccccces 7

Central Gulf S.S. Corp v

International Paper Co, (CA5th 1973)

ig 2 Bo : MPeverrerrrerrerrere 15

Childs v United States Board

of Parole,511 F2d 1270,(CADC 1974).. 15

Clay v Overseas Carrier Corp,

61 FRD 325, (1973)writ denied

Overseas Carrier Corp v Clay,

491 F2d 759, (3rd Cir 1973) ...... 8,9

Dunlop v Bachowski,421 US 560,(1975).. 14

Flaks v Koegel,504 F2d 702, (2dCir 1974).12

Goldberg v Kelly,397 US 254(1970).. 14

Greene v McElroy,306 US 474,(1959). 14

Hazel-Atlas Glass Co v Hartford

Empire Co,322 US 238,(1943) ...... 3

Israel Aircraft Ind.Ltd v Standard

Precision,559 F2d 203,(2d Cir 1977) .. 11

In re Murchison,349 US 133,(1955) .. 14

Jackson v Irving Trust Co,

wae Ge SPE, CASEL) coccvcscsoesocess 12

Klaproot V United States,

335 US 601,(1949) ..... TYTTOTCTLLTS 10

iv

CITATIONS

Kupferman v Consolidated Research

& Manufacturing Corp,459 F2d 1072

(26 Cas 1972) ccoccvcesecesesesess

La Buy v Howes Leather Co,

352 US 249 *enteee#serkeerje#ee# e*enereeetsrjeerfeee#ee#es#e«# *e

Langes v Green ,282 US 53l ......

Morrissey v Brewer,408 US 471, (1972)

Orvis v Higgins,180 F2d 537,

Page

12

15

14

ey

(2d Cir) cert denied,340 US 810,(1950) 13

Peltzman v Central Gulf Lines,Inc

497 F2d 232,(2d Cir 1974) dismissed

in remand,523 F2d 96, cert denied

423 US 1074,reh denied 424 US 979(1976).5

Peltzman v Irving R Kaufman,

Chief Judge,Docket No. 76-1117

U.S. Supreme Court. .ccccccccceccs

Societe Internationale v Rogers,

357 US 197, (1958) oseeeeeeeeee eee

Securities & Exchange Commission v

Research Automation Corp, 521 F2d

S85, (24 Cig 1975) ccccscsceseves

Thilebule v M/S Nordsee Pilot

452 F2d 1230 (2d Cir 1971) .....

Universal Oil Products Co v

Root Refining Co,328 US 575,(1946)..

U.S. v Gould,301 F2d 353 ......-

12

12

12

14

CITATIONS

Will v U.S. 389 US 96 ........ ;

STATUTES

Pitile 26 UBC Geo 1916 ..cccccee

U.S.CONSTITUTION

Article 111 Sec 2 eevee egpeee eee

Sth & 14th Amendments ....eeee.

_ MISCELLANEOUS

Davis-Administrative Law Treatise

Supplement 1977,Chapter 16,Findings,

Reasons,& Opinions ....eeeeees

Moore's Federal Practice Vo 7 nr

60:19,at 237-239 *ee_ see#eenee#ee#ee#ee#e#e#*#

Hamilton's View of Courts,Federalist

Modern Library,Random House 1937 ed ..

17 U Chi L R 644,1950 eeeeenreee

61 Yale LJ 76,1952 ee*eneeeesteeees8e@

60 Minutes,C.B.S. News Program

Exhibit 19 (a) eeeseeveeveeve eevee ee

Congressional Hearings on Bill

To Legalize Maritime Hiring Halls

(Not Passed) Exhibit 18,19,19a .....

RULES

Rule 60 (b)F.R.C.P. eevee e ev everne

Rule 54,U.S,Supreme Court ee ecece

14

10

15

11

11

,i9a

10

3,13

vi

FEDERAL RULE OF CIVIL PROCEDURE 60(B)

---(b) Mistakes, Inadvertence;excusable

neglect,newly discovered evidence;Fraud,

etc.On motion & upon such terms as are just,

the Court may relieve a party or his legal

representative from a final fudgment,order

or proceeding for the following reasons:

---(3) fraud(whether heretofore denomin-

ated intrinsic or extrinsic,misrepresent-

ation,or other misconduct of an adverse

party;...(5) the judgment has been satis-

fied,released,or discharged,or a prior

judgment upon which it is based has been

reversed or otherwise vacated,or it is no

longer equitable that the judgment should

have prospective application;or (6) any

other reason justifying relief from the

operation of the judgment...This rule does

not limit the power of a court to entertain

an independent action to relieve a party

frpm a judgment,order or proceeding,or to

grant relief to a defendant not actually

personally notified as provided in Title 28

USC Sec 1655,or to set aside a judgment for

fraud upon the Court...

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER term, 1977

No.

ARCHIE PELTZMAN,

PETITIONER,

Vv.

CENTRAL GULF LINES INC.,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

The petitioner, Archie Peltzman,

pro

se, petitions for a writ of certiorari to

review the decisions of the United States

Court of Appeals for the Second Circuit.

-

OPINIONS BELOW

There was no opinion rendered by the

District Court for the Southern District

of New York, (App.A).

2.

There was no opinion filed by the

Court of Appeals in its order, judgment,

decree affirming the District Court,

De

There was no opinion filed by the

(APP .B)

-2-

Court of Appeals in its order denying

a petition for rehearing en banc, (APP .C)

4. *There was no opinion filed by the

Court of Appeals in its order denying

leave to proceed under title 28, Sec.

1916. (APP. D).

JURISDICTION

l. The order of the Court of Appeals for

the second circuit was filed on January

26, 1978, a timely petition for rehearing

en banc was denied on March 15, 1978, &

this petition for certiorari is being

filed within 90 days of that date.

*A writ of mandamus was filed in this

Court, Peltzman V Irving R Kaufman,Chief

Judge of the United States Court of Appeals

for the second circuit, when petitioner

was unable to docket his appeal without

payment of the docket fee; October term

1976, No 76-1117. The writ was denied on

June 6, 1977, after the Solicitor General

explained that a mistake by the pro se

clerk had been corrected, & petitioner's

pleadings would be construed as leave to

proceed under title 28USC Sec 1916.

a Ro

The jurisdiction of this court is invoked

under 28 USC 1254 (1) & under article 111

Sec 2 of U.S. Constitution.

2. The jurisdiction of this Court is also

invoked under the inherent jurisdiction

which all Courts have to protect the

judicial process, & under the supervisory

powers of this Court on the lower Courts,

Hazel-Atlas Glass Co v Hartford-Empire

Co, 322US 238, 1943.

QUESTIONS PRESENTED

1. Were accepted legal standars & prin-

ciples used by the District Court, in

deciding a Rule 60(b) motion based on

"Fraud on the Court"?

2. Was a statutory right under title 28

Sec 1916 nullified by the Court of Appeals

orders that a seaman pay a docket fee, &

prepay costs on appeal?

3. Could the Court of Appeals intell-

igently consider the merits of a 60(b)

-4-

motion "Fraud on the Court,” in the

absence of formal findings of fact &

conclusions of law by the District

Court?

STATUTES INVOLVED

1. Title 28 Sec 1916, Seamens Suits:

In all Courts of the United States,

seamen may institute and prosecute

Suits & appeals in their own names

& for the enforcement of laws en-

acted for their health & safety with-

out prepaying fees or costs or furn-

ishing security therefor.

aa 25, 1948, C 646 Sec l, 62 Stat.

5

CONSTITUTIONAL AMENDMENTS

1. Fifth & fourteenth amendments con-

straint on Federal & State Governments,

& their officials, to obey the "proced-

ural due process of law" based on fund-

amental ideas of American justice, &

accepted legal principles.

‘ eS eee ee

-5-

STATEMENT

1. The case involves a 60(b) motion to

vacate a judgment based on "Fraud on the

Court." +The previous litigation is

briefly thus:

Petitioner was discharged from a ship-

board job (Radio Officer) while on vaca-

tion in 1971, because the union & the

company involved claimed petitioner had

to join the union & pay the fees, dues,

& assessments, & failing that would not

be granted a"clearance" from the union

to rejoin the ship. The complaint was

*¥Peltzman v Central Gulf Lines Inc., 86

LRRM 2127, (SDNY 1974) (not officially

reported) reversed & remanded 497 F24

232, (24 cir 1974), dismissed in remand,

88 LRRM 2924 (SDNY 1974), (not officially

reported) 523 F24 96, motion for rehear-

ing en banc denied, (not officially re-

ported) (24 cir 1975) cert den, 423 US

1074 reh denied 424 US979, (1976) (The

opinions are reprinted in petitioner's

writ No 75-782, US Supreme Court.

-6-

dismissed, but on appeal reversed &

remanded. The complaint was dismissed

again, both times on a summary judgment

motion. The Court of Appeals affirmed

& cert was denied.

2. Petitioner sought help in reopening

this case by appealing to various gov-

ernmental agencies,& private agencies to

no avail.Petitioner then filed the 60(b)

motion,& the same District Judge who

decided the original case,decided this

motion.

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 contained

ninety-nine pages of court actions in State

Court,Federal Court,& U.S. Supreme Court,

Congressional hearings relating to the

closed shop conditions in the merchant

marine,& a C.B.S. news program also

*App I-Index of exhibits1-22.

-7-

relating to closed shop conditions in the

merchant marine.

4. The District Court denied the motion,

without waiting for respondent*s opposing

pleadings,without a hearing,& without an

opinion. The Court of Appeals affirmed the

lower court stating that:

1. The district court did not abuse its

discretion in denying the motion to vacate

the judgment under Federal Rule of Civil

Procedure 60(b) because appellant's affi-

davit does not provide any basis for find-

ing there was fraud or mistake in the prior

judgment or that any newly discovered

evidence has been found.

2.Since appellant's affidavit does not reveal

any fraud upon the court,the motion is time

barred under FRCP 60(b)'s one year statute

of limitations.

3. Appellant is further ordered to pay

appelle the costs of this appeal.

REASONS FOR GRANTING THE WRIT_

A. The decisionBELOW RAISES AN IMPORTANT

QUESTIONOF PRESERVING STATUTORY RIGHTS,

PRESERVING JUDICIAL INTEGRITY, &PRESERVING

JUDICIAL PROCEDURAL DUE PROCESS.

This Court in Bainbridge v Merchants

Transportaition Co,287 US 280,construed

-8-

Title 28,Sec 1916,& held that seamens docket

fee was returnable because the Jones Act

was enacted for seamens health & safety.

In Clay v Overseas Carrier Corp, 61 FRD

325, (1973),the District JUdge denied a

motion to have a seaman post a bond of $1500

as security for trial costs.The decision

reviewed the law pertaining to 28 USC Sec

1916,& concluded that the decisions in

*Thilebule & Adamowski indicate that the

scope of 28 USC Sec 1916 is not to be deter-

minedby definitions of the word "fees" &

"costs" that arbitrarily limit their scope,

but by reference to the policy embodied in

28 USC Sec 1916 as limited by policy consid-

erations.

In spite of these holdings & citations ,one

*Thilebeule vM/S Nordsee Pilot,452 F2d 1230,

(2d Cir 1971).

Adamowski v Bard,193 F2d 578 (3rd Cir 1952)

cert denied 343 US 906,(1952).

aay <at> “ *

-9-

panel ordered the docket fee to be paid,& did

not reconsider its order,while another panel

ordered pre-payment of costs on appeal but

* reconsidered its order.App E,F,G,H.)

The Court should resolve this obvious

conflict within the circuit,& the 3rd circuit

which affirmed the Clay decision without an

opinion.Overseas Carrier Corp v Clay,491 F2d

759, (1973).The decision also conflicts with

this Courts Rule 54.

B. REVIEW BY THIS COURT IS WARRANTED TO

PRESERVE, PROTECT,& UPHOLD THE PRINCIPLED

DECISIONS,AS AGAINST A BLATANT REFUSAL

TO OBEY THE ELEMENTARY RULES OF FEDERAL

CIVIL PROCEDURE.

The District JUdge by fiat without an

opinion denied petitioners 60(b) motion,&

is not possible to determine whether

pre-payment by petitioner of the costs on

appeal (pursuant to the courts order) within

the 30 day proscription,or petitioner's motion

to reconsider prompted the court of appeals

to grant appellant's motion,since no opinion

was filed.

-10-

the second circuit affirmed without comment-

ing on petitioners ninety-nine pages of

documents specifying"Fraud On The Court?

perjury by witnesses,& Congressional testi-

mony on closed shop hiring practices in the

maritime industry,& a C.B.S. news program

on the closed shop conditions in the mari-

time industry.

Petitioner argues that some of the factors

that the district court should consider on

a 60(b) motion are summarized in 7 Moore's

Federal Practice nr 60;19 at 237-239 as

follows;...where there has been no consider-

ation of the merits,...whether there is

merit in the defense or claim as the case

may be;...whether the movant had a fair

opportunity to present his claim or defense.

Justice Black observed in Klaproot vUnited

States,335 US 601,(1949),that the language

of Federal Rule 60(b),"vests power in courts

adequate to enable them to vacate judgments

Cae is ak ated

-ll-

whenever such action is appropriate to

accomplish justice",id at 65.See comment 17

U Chi L R,644,671,1950,& Note;61 Yale L J76,

1952.Plaintiff argues that under Rule 60(b)

(6),the Court has a "grand reservoir of

equitable power to do justice in a particular

case.See Pierre v Bernuth,Lembeke Co,20 FRD

116 (SDNY 1956).

Petitioner argues that the Court Of Appeals

in its decision only mentions petitioner's

affidavit,& doesnt mention that ninety-nine

pages of documents substantiated the affidavit.

This cavalier treatment of petitioner's

pleadings is a denial of his procedural due

process rights of being heard,that the

evidence that he included in his pleadings

must be considered by both the District

Court,& the Appellate Court.

In Israel Aircraft Ind Ltd V Standard

Precision, 559 F2d 203,1977(2d Cir),the

District Court sua sponte dismissed the

-12-

action for "Fraud On The Court".The Court

of Appeals in reversing & remanding said:

Appellants arguments that their action

should not have been dismissed without a

hearing is not without precedential support.

It has been held,for example that although

a judge has the power to set aside a judgment

obtained as a result of fraud on the court,

see Kupferman v Consolidated Research &

Manufacturing Corp,459 F2d 1072,(2d Cir 1972),

this power should rarely be exercised without

giving the parties an opportunity to be heard,

Universal Oil Products Co,v Root Refining Co,

328 US 575, (1946) ;see Jackson v Irving Trust —

Co, 311 US 494 (1941) .Moreover,where the Court

not only vacates a judgment,but also dismisses

the complaint,a question of due process may

arise if this is done sua sponte without a

hearing.See Societe Internationale V Rogers,

357 US 197, (1958) ;Securities & Exchange

Commission v Research Automation Corp;521 F2d

585, (2d Cir 1975); Flaks v Koegel, 504 F2d

702,(2d Cir 1974).We prefer,however,not to

dispose of this appeal on the basis of this

quasi-procedural argument.The reputations of

two established New York law firms,an inter-

nationally known Israeli corporation & at

least five individuals are at stake.They are

entitled to have this appeal decided on the

merits.

Petitioner argues that the disparity of

treatment as exemplified by the reasoned

decision in the Israel case,as compared to

the summary decision in petitioner's case

is a violation of the equal treatment that

SS eee

ee

-l 3-

is mandated by the Constitution,& proced-

ural due process rules of Federal Rules Of

Civil Procedure.The Appeals Court in Israel

went on to say:

Because no hearing was held below, wemay

examine the affidavits submitted by appellants

to the District Court Judge in the same fresh

light as did the District Judge.Orvis v

Higgins,180 F2d 537,(2d Cir) cert denied,

340 US 810, (1950).We have made such an exam-

ination & have painstakingly reviewed the

entire record.Having done so,we conclude that

neither appellants nor their attorneys were

guilty of a fraud upon the court.There were

misunderstandings,lack of communication and,

in some instances,carelessness.However,there

was no intentional fraud.

Petitioner argues that the Court Of Appeals

in Israel “painstakingly reviewed the entire

record"...but in petitioner's case,the ninety-

nine documents,the claims of perjury by wit-

nesses,& the falsification by attorneys of

documents,& witholding of documents,were not

even mentioned in the summary decision by the

Court of Appeals.This disparate treatment is

a fundamental violation of petitioner's right

of equal treatment under the Constitution,&

-14-

this Court has said that "a fair trial

in a fair tribunal is a basic require-

ment of due process.In re Murchison, 349US

133, (1955) .And in addition to actual fair-

ness,"justice must satisfy the appearance

of justice",id.This Court in recent years

has clearly set forth the basic components

of procedural due process*,.

In US v Gould,301 F2d 353,the Court held

that under rule relating to relief from

judgment,Court has discretion guided by

accepted legal principles.

This Court in Langes v Green,282 US 531,

said"

The term discretion when used as a guide

to judicial action,means sound discretion,

not discretion exercised arbitrarily,but

with due regard for that which is right

*Dunlop v Bachowski,421 US 560, (1975) ,See

Davis,Administrative Law Treatise,Supp-

lement 1977,Chapter 16-Findings,Reasons,&

Opinions.

Morrissey v Brewer,408 US 471, (1972);

Goldberg v Kelly,397 US 254, (1970),

Greene v McElroy,306 US 474, (1959).

-15-

& equitable under the circumstances.It

means discretion directed by reason &

conscience to a just result.

In Childs v United States @ero_Of

Parole,511 F2d 1270, (CADC 1974),The Court

interpreted due process to require find-

ings & reasons.

In Central Gulf S.S. Corp v Internat-

ional Paper Co, (CA5th 1973),477 F2d 907,It

was held that reviewing Court could not

consider merits of appeal in absence of

formal findings of fact,and conclusions of

law.

In La Buy v Howes Leather Co,352 US 249,

"district judge displayed a persistent

disregard of the Rules of Civil Procedure

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 96,1967

Finally,petitioner quotes * Hamilton"s

view of Courts...

"To avoid an arbitrary discretion in the

*¥rPederalist Modern Library ed,Random House

1937,No 78,p 510.

-16-

Courts ,it is indispensable that they should

be bound down by strict rules & precedents,

which serve to define,& point out their

duty in every particular case that comes

before them"...

CONCLUSION

For the foregoing reasons,the writ should

be granted.

Respectfully submitted

(Lrickie (Lic

Archie Peltzman “4

Petitioner,Pro Se.

April |,1978.

APPENDIX_A

Index No. 73 Civ 291l Year 1976

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF N.Y.

ARCHIE PELTZMAN, MOTION DENIED

SO ORDERED

PLAINTIFF, 3

s/Whitman Knap

-against- USDJ 11/24/76

CENTRAL GULF LINES, INC] U-S: District Court

Filed Aug. 26, 1976

DEFENDANT. S.D.N.Y.

cos

Nov. 26, 1976

AFFIDAVIT TO VACATE

JUDGMENT WITH LEGAL

MEMORANDUM & EXHIBITS 1-22

ARCHIE PELTZMAN, PRO SE

c/o E. Katz

2483 W. 16th St.

B'klyn, N.Y. 11214

266 8225

To:Lorenz, Finn, Giardino & Lambos

Attorney(s) -Defendant

la

APPENDIX &

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

OPPENoiIxg

1. The district court did not abuse

its discretion in denying the motion

to vacate the judgment under Federal

Rule of Civil Procedure 60(b) because

appellant's affidavit does not pro-

vide any basis for finding there was

fraud or mistake in the prior judg-

ment or that any newly discovered

evidence has been found.

At a stated term of the United States

Circuit, held at the United States Court-

house in the City of New York, on the

twenty-sixth day of January one thous-

and nine hundred and seventy-eight.

Present: ;

HONORABLE IRVING R. KAUFMAN,

Chief, Judge. 2. Since appellant's affidavit does not

reveal any fraud upon the court, the

motion is time-barred under FRCP

60 (b)'s one year statute of limit-

ations.

HONORABLE J. EDWARD LUMBARD

HONORABLE WILLIAM H. MULLIGAN,

Circuit Judges,

ARCHIE PELTZMAN, U.S. COURT OF

Plaintiff-Appellant} APPEALS, FILED

JAN. 26, 1978

3. Appellant iS further ordered to pay

appellee the costs of this appeal.

¥. A. DANIEL s/IRVING R. KAUFMAN,

FUSARO, CLERK Chief Judge.

CENTRAL GULF LINES, INC., SECOND CIRCUIT

Defendant~Appellee. s/ J.Edward Lumbard

77-7402

s/ William H. Mulligan

Appeal from the United States District Circuit Judges.

Court for the Southern District of N.Y.

This cause came on to be heard on the

transcript of record from the U.S. Dis-

trict Court for the Southern District

of N.Y., and was argued by counsel for

appellee and by appellant pro se. On

CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the

order of said District Court be and it

hereby is affirmed.

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a Stated Term of the United States

Court of Appeals, in and for the Second

Circuit, held at the United States Court

House, in the City of New York, on the

fifteenth day of March, one thousand

nine hundred and seventy-eight

Present:

Hon. IRVING R. KAUFMAN,

Chief Judge.

HON. J.EDWARD LUMBARD,

HON. WILLIAM H. MULLIGAN

Circuit Judges.

ARCHIE PELTZMAN,

Plaintiff-Appellant U.S. COURT OF

APPEALS, FILED

Vv. MAR. I5, 1978

A. DANIEL

FUSARO, CLERK

SECOND CIRCUIT

CENTRAL GULF LINES, INC.,

Defendant-Appellee.

77-7402

A petition for a rehearing having

been filed herein by appellant, pro Se,

Upon consideration thereof, it is

ordered that said petition be and here-

by is denied.

s/A. DANIEL FUSARO,

Clerk.

4a

_Sacilateds

APPENDIX D

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States

Court of Appeals, in and for the Second

Circuit, held at the United States Court

House, in the City of New York, on the

fifteenth day of March, one thousand

nine hundred and seventy-eight.

ARCHIE PELTZMAN, U.S.COURT OF

Plaintiff-Appellant, APPEALS, FILED

MAR. 15, 1978

Vv. A. Daniel

Fusaro, CLERK

CENTRAL GULF LINES, INC., SECOND CIRCUIT

Defendant-Appellee.

77-7402

A petition for rehearing containing a

suggestion that the action be reheard en

banc having been filed herein by appell-

ant pro-se, and no active judge or judge

who was a member of the panel having re-

quested that a vote be taken on said

suggestion.

Upon consideration thereof,itisOrdered

that said petition be and it hereby is

DENIED.

s/IRVING R. KAUFMAN,

Chief Judge.

5a

APPENDIX E

PRO SE UNITED STATES COURT OF APPEALS

6/15/77 SECOND CIRCUIT

77-8201

At a Stated Term of the United States

Court of Appeals, in and for the Second

Circuit, held at the United States Court

House, in the City of New York, on the

twenty-fourth day of June, one thousand

nine hundred and seventy-seven.

Archie Peltzman,

Appellant,

Vv.

Central Gulf Lines, Inc.,

Appellee.

A motion having been made herein by

Appellant, pro se for Leave to Pro-

ceed on Appeal under 28 U.S.C. sec.1916,

without prejudice to the paying of the

$50 docketing fee should the sec. 1916

relief be denied.

Upon consideration thereof, it is Ordered

that said motion be and hereby is denied,

the question of its applicability having

been brought to the Court's attention,

without prejudice to filing the fee and

proceeding on appeal.

s/J. Joseph Smith

s/James L. Oakes

JLO JJS Circuit Judges

6a

APPENDIX F

PRO SE

7/19/77 UNITED STATES COURT OF APPEALS

77-8201 SECOND CIRCUIT

At a Stated Term of the United States

Court of Appeals, in and for the Second

Circuit, held at the United States Court

House, in the City of New York, on the

27th day of July, one thousand nine

hundred and seventy-seven.

Archie Peltzman,

Appellant,

Vv.

Central Gulf Lines, Inc.,

Appellee.

A motion having been made herein by

Appellant, pro se for reconsideration.

Upon consideration thereof, it is

Ordered that said motion be and it

hereby is denied.

s/J.EDWARD LUMBARD

s/JAMES L. OAKES

s/JOSEPH J. SMITH

JLO JJS CIRCUIT JUDGES

7a

APPENDIX G

PRO SE UNITED STATES COURT OF APPEALS

11/22/77 SECOND CIRCUIT

77-7402

At a Stated Term of the United States

Court of Appeals, in and for the Second

Circuit, held at the United States Court

House, in the City of New York, on the

29th day of November, one thousand nine

hundred and seventy-seven.

Archie Peltzman, U.S. COURT OF

APPEALES, FILED

Appellant, NOV. 29, 1977

Vv. A.DANIEL

FUSARO, CLERK

Central Gulf Lines, Inc., SECOND CIRCUIT

Appellee.

77-7402

A motion having been made herein by

Appellee, Central Gulf Lines, Inc.,

for dismissal of the appeal or to re-

quire Appellant to post bond for costs

On appeal pursuant to Rule 7.

Upon consideration thereof, it is

granted unless appellant within 30

days posts a bond for appellate costs

pursuant to Rule 7 of the Federal Rules

of Appellate Procedure.

s/PAUL R. HAYS

s/WILFRED FEINBERG

s/WALTER R. MANSFIELD

CIRCUIT JUDGES —

WF WRM PRH

8a

APPENDIX H

PRO SE UNITED STATES COURT OF APPEALS

12/13/77 SECOND CIRCUIT

77-7402

At a Stated Term of the United States 2d

Circuit, held at the United States Court

House, in the City of New York on the

4th day of January, one thousand nine

hundred and seventy-eight.

Archie Peltzman, U.S. COURT OF

Appellant, APPEALS, FILED

JAN. 4, 1978

Vv. A. Daniel

Fusaro, Clerk

Central Gulf Lines, Inc., SECOND CIRCUIT

Appellee.

77-7402

A motion having been made herein by

Appellant, pro se for reconsideration.

Upon consideration thereof, it is

Ordered that said motion be and it

hereby is Granted, Unvon such reconsider-

ation, Appellee's motion to dismiss is

denied. The appeal may proceed and

should be set down for hearing on the

next available calendar.

s/PAUL R. HAYS

s/WILFRED FEINBERG

s/WALTER R. MANSFIELD,

Circuit Judges.

WF WRM PRH

9a

APPENDIX I

Index of exhibits 1-22 filed in District

Court,November 23,1976.

1.

A 100,p 6-9,Lerner's affidavit dated

Nov.26,1974.

me

A 50-54,p 10-14,Correspondence &

telegrams produced at 2nd summary

judgment hearing contradicting Lerner's

Aug.16,1973 letter.

A 25 & 27 p 15-18,Peltzman's letter to

shipping co.& Mr Lerner's letter denying

any correspondence or assignment slips

of Spoonmore,which contradicts his Nov.

26,1974 affidavit wherein he asks

ee what he wants from the company's

ile.

A 99,p 19,Hepting's memos to Smith re

cooperation of Capt.Whitcomb.

A 94,A 86, (p20-23) (pl0-13 in US

Supreme Ct.Brief)Original vacation

clause typed in by lawyers for Company.

Also p 10-13 from US Supreme Ct brief

in 75-782,Peltzman v Central Gulf Lines,

Inc;showing alteration in vacation clause.

A 30-32 p 32-35,Partial decree in

certified docket No 24737-N.L.R.B. v

American Radio Assn.AFL-C.I.0O. 2nd

Circuit Ct of Appeals.

A 92-95,p45-48,Spoonmores reinstate-

ment assignment & dues sheet.

A 140,p49,Smiths direct testimony re

leverage.

10a

9.

10.

ll.

12.

13.

14.

15.

16.

APPENDIX I

A 56-64,p24-32,Smiths affidavit in

State Ct re hundreds of returning

seamen.

A 64-66,p50-52,Smiths affidavit in

Federal Ct.re Peltzman & Homer being

the only Radio Officers returning to

union after U.S. Coast Guard returned

licenses to them.

A 55-58,p 36-39,Peltzmans dues sheet.

A 59-61,p40-42,Homer's dues sheet/.

A 88-89,p 43-44,Homers attorneys

letter to union re reinstatement

procedure.

A 99.pl19,Hepting's memos to Smith re

cooperation of Capt.Whitcomb on Jan.

18,1971,8 months before discharge.

A 45,p 2-5,Capt. Whitcomb's affidavit

doesnt mention cooperation or telephone

messages from Hepting re union's

"problem" with Peltzman.( These memos

were not produced by union till after

the hearing,so no cross-examination as

to coercion by union was possible.Capt

Whitcomb denied by union in his

testimony.He also said he "never" spoke

to any other official in the Company

about this "problem" o the union with

Peltzman.

A 100,p6-9,Lerner's affidavit dated

Aug.16,1973,stating only two letters

are in Companys file.The telegrams &

other correspondence was produced at the

hearing contradicting the NOv.26,1974

affidavit.

“lla

17.

18.

19.

APPENDIX I

p 200-209 of summary judgment hearing

Oct.15,1974 (p53-62) Smiths testimony

re subpoena regarding Radio Operators

files mentioned in Docket No.24737.He

Claims he never heard of them,but

certified decree shows union consented

not to discriminate against these men

or others in similar circumstances,

i.e. non-members of union.This decree ’

is still sealed,& N.L.R.B. still has

not acknowledged its existence.

p 63-77, Excerpt of 28 pages of 576

pages of sworn testimony & exhibits

from Congressional hearings on Bill to

legalize Maritime Hiring Halls. (not passed).

p78-85,Excerpt of 14 pages of hearing

HR 5008,Aug.3,1949 & Oct.4,1949-Hiring

Practices in Maritime Industry.Committee

on Education & Labor,Special Committee,8lst

Congress,lst Session,August 3,1949.

19a Full 7 pages of 60 minutes "Unions,

20.

21

Money & Politics";October 3,1976,p86-93.

A36 p 94,Copy of Group 2,assignment slip,

inactive assignment & dues payments,1968

& 1969 -filed in first appeal appendix.

Summary judgment hearing,p 129-131-(95-98F

District Judges remark,Quote p 130,

The Court-I dont give a darn about the

vacation clause;I want to know whether

you were discriminated against by the

union in insisting that you pay the

initiation fee.Now get to that issue.Stop

all this palaver .Mr Peltzman-Yes,your Honor

The Court -Get to that issue.Dont ask any

other question about anything else.I have ie

beenlistening all day to your talk.That is

the only issue here.Now get to it.(end quote)

12a

APPENDIX I

22. Excerpts from union publication,A.R.A.

Log showing in Nov.-Dec.,1953 issue program

to prevent too many members in the union.

(Korean War started 1952).Other excerpts

show maritime unions efforts to legalize

hirings halls (not passed) & amenc

mutiny statutes (not passed) August

1963.p 99-100.

13a