Petition for Writ of Certiorari — Wrenn v. Equal Employment Opportunity Commission

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IN THE

Supreme Court, U.S

FILED

JUN 25 1991

FFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

w=. -

CURTIS L. WRENW

P. QO. Box 203

Fort Drum, NY 13603,

Petitioner.

U. S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION, ET AL.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

QUESTIONS PRESENTED FOR REVIEW

This is a case in which the respondents

obtained dismissal of petitioner's claims at

the pre-trial level. If this Court grants

the petition for certiorari, it will have to

decide whether the petitioner's rights,

privileges and immunities were abridged by

the lower courts’ decisions. More

specifically:

1. Whether the dismissal of the

petitioner's FOIA claims, without examining

the records compiled of him by the responsi-

ble federal agencies, violated his pro-

cedural due process and/or property right.

2. Whether the imposition of sanctions

against the petitioner, allegedly because

his FOIA claims were frivolous, without

articulating the basis for his claims and/or

stating specifically how it decided the

appeal was frivolous, violated his rights

under the First and Fourteenth Amendments.

TABLE OF CONTENTS

Questions Presented for Review.......... i

ee a ii

ee bg)” iii

Jurisdictional Statement............... iv

Conetitutional Provieions.............6. Vv

Statement of the Case..........e eevee i~2Z

Reasons for Granting the Writ......... 3-7

EET TTR CETTE REE 8-9

TABLE OF AUTHORITIES

Christianburg Garment Co. v. EEOC

434 U.S. 412, 423, 96 BS. CE... sees ensas 3

Doe v. Busbee, ‘(CA GA 1982), 684

ee eee a a eee ee ae ee eee ee ee 2-3

Logan v. Zimmerman Brush Co., 455 U.S.

422, 426, 102 SB. CE. CIiSBS).. . ccc nccvnss 2

State Teachers Assoc. v. Garland Independ-

ent School District, Sup. Ct. Case No 87-

1759 (Mar 1989), Cert to Sth CA......... 4

U.S. Dept. of Justice v. Reporters, Sup. Ct

Case No 87-1379 (Mar 1989)........2500.. 5

iii

JURISDICTIONAL STATEMENT

The jurisdiction of this Court is

invoked under Title 28, United States Code,

Section 1254(¢(1), 1651 and 1915.

Jurisdiction is also invoked under the

Coustitution and laws of the United States,

including but not limited to the First,

Fifth and Fourteenth Amendments and the

Freedom of Information Act/Privacy Act,in

that the decisions of the lower courts, if

permitted to stand, will deprive the

petitioner of procedural due process rights,

right of freedom of speech and the right of

access to information compiled of and about

him by agencies of the USA.

The jurisdiction of this Court is also

invoked to review the actions of the lower

courts, in that they have rendered decisions

which if not reversed by this Court will

contravene prior decisions of the Court and

will invalidate a Congressional intent.

Also, the decisions are contrary to

decisions of this Court and the other courts

of appeals.

+ = allalall

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment I:

Congress shall make no law...

abridging the freedom of speech ...;

or the right of the people to peaceably

to petition the Government for a

redress of grievances.

United States Constitution, Amendment V:

Nor shall any person ... be deprived

of life, liberty, or property, without

due process of law...

United States Constitution, Amendment XIV:

Nor deny to any person within its

jurisdiction the equal protection

of the laws.

STATEMENT OF THE CASE

This case, which had its origin in the

petitioner's requests for information,

records and files compiled by federal

agencies, presents an example of abuse of

discretion by the lower courts. More

specifically the petitioner:

1. Requested records and docu-

ments compiled of him by federal agencies,

pursuant to the Freedom of Information Act

(FOIA). The agencies refused to provide the

records and information requested.

2. After exhausting the required FOIA

administrative remedies, filed the complaint

at App F as provided by 5 USC 552(a) (4) (B),

and after the district court did not comply

with 5 USC 552(a)¢(4)(B) filed his motion for

summary judgment ‘App G).

3. Appealed the decision of the

district court which granted judgment in

favor of the defendants ‘App H,I).

4. Presents this petition for writ of

certiorari as part of his continuing efforts

to bring to an end the practice of the lower

courts of depriving him of the rights,

privileges and immunitites secured by the

Constitution and laws of the United States.

In the case at bar, the courts have either

issued threats against the petitioner or

have imposed sanctions on him for asking for

records, documents and things which were

compiled of him by various federal agencies.

Despite the fine and threats, the lower

courts have refused to articulate the basis

for deciding that the petitioner's FOIA

claims were somewhow frivolous. This is

particularly pertinent because all the

petitioner has requested are records com-

piled of him by the responsible federal

agencies.

REASONS FOR GRANTING WRIT

1. The denial of petitioner's FOIA

claims contravenes the Constitution and laws

of the United States including, but not

limited to, the First, Fifth and Fourteenth

Amendments and the Congressional intent of

the Freedom of Information Act (5 USC 552).

Moreover, the issuance of threats and the

imposition of sanctions in the form of

attorney fees, are in conflict with the

civil Rights Attorney's Fees Award Act and

decisions of this Court.

2. The district court dismissed

appe*lant's FOIA claims allegedly because he

did not state a cause of action. The FOIA

requests submitted by the petitioner to

various federal agencies were for records,

documents and files compiled of him by those

agencies. The complaint in the district

court was filed pursuant to 5 USC

552 (a) (4) (B) which provides in relevant

parts that: “In such a case the court shall

determine the matter de novo, and may

examine the contents of such agency records

in camera to determine whether such records

Or any part thereof shall be witheld ..." On

the basis of these provisions, the

petitioner submits he had “stated a cause of

action.” Ina similar case this Court held

that “a cause of action is a form of

“property” that the state may not take away

without due process of law." See Logan v.

Zimmerman Brush Co., 455 U.S. 422, 428, 102

S.Ct. 1148, 1153 71 L.Ed.2d 265 (1982).

3. The decision of the district court

was appealed to the court of appeals. The

latter dismissed the appeal and imposed

sanctions on the petitioner, because

allegedly the appeal was frivolous.

4. The court of appeals imposed a

$500.00 fine on the petitioner, allegedly

because the appeal was frivolous. The court

cited no facts, or lack thereof, or any

information which it used as a basis for

deciding the appeal was frivolous. The

decision is in conflict with Doe v. Busbee,

4 j

(CA GA 1982), 684 F.2d 1375, where the court

held that “Attorney's fees may be awarded

under Civil Rights Attorney's Fees Award to

prevailing defendants only if plaintiff's

Claim was frivolous, unreasonable or without

foundation. " This Court similarly held in

Christianburg Garment Co. v. EEOC. 434 U.S.

412, 423, 98 S.Ct. 694, 701, 54 L.Ed.2d 648

(1978), that such an award (‘attorney's fees)

must be based on a finding that the

plaintiff's charge was “frivolous,

unreasonable or without foundation.” The

court of appeals render no “findings” in the

case while imposing the fine against the

petitioner allegedly for filing a “frivolous

appeal."

5S. The imposition of sanctions by the

court of appeals was not made on the basis

of any facts and/or pleadings but rather was

the result of a pattern of unwarranted

adverse action against the petitioner by the

court of appeals. It is unrefuted that the

petitioner requested information under the

FOIA, exhausted the required administrative

remedies, and filed the complaint at App F.

The court of appeals offered no explanation

for the sanctions and/or reason for denying

the appeal, other than to say the appeal was

frivolous. In order to be awarded

attorney's fees under 42 USC 1988, the

defendant would have to succeed on “any

Significant issue.“ This did not occur in

this case because the claims were dismissed

at the pre-trial level, allegedly because

the petitioner's FOIA claims did not state a

cause of action. In the absence of the

defendants succeeding on any significant

issue, attorney's fees should not have been

awarded. See, e.g., State Teachers Assoc.

v. Garland Independent School District, Sup

Ct Case No 87-1759 (<(Mar 1989), Cert to Sth

6. The district court's decision ‘App

H) to dismiss petitioner's FOIA claims

without examining the contents of the

agencies’ records is contrary to decisions

)

of this court. Although the the law places

the burden on the agency to sustain its

action in denying the records under the

FOIA, the court did not require any such

showing. Instead the court dismissed the

petitioner's FOIA claims. The decision is

contrary to this Court's decision in U. S.

Dept. of Justice v. Reporters, Cert. to CA

DC, Sup Ct Case No 87-1379 (Mar 1989) where

the Court held “... the FOIA expressly

places the burden “on the agency to sustain

its act.on” and directs the district court

to “determine the matter de novo.“ Such was

not done in this case, instead of

determining the matter de novo the courts

went to great length to label the petitioner

as the “wrongdoer” for requesting informa-

tion under the FOIA.

CONCLUSION

The foregoing facts and arguments

demonstrate that the decisions of the Second

Circuit Court of Appeals are in conflict

with this Court and the other courts of

appeals. Moreover, this case presents a

clear example of how the Second Circuit has

‘conducted a pattern and practice of

depriving the petitioner of rights secured

to him by the Constitution and laws of the

United States, including, but not limited

to, the First and Fourteenth Amendments and

the FOIA. This Court is asked to bring to

an end the continuing threats, imposition of

sanctions and other forms of deprivation of

constitutional rights by the Second Circuit.

Accordingly, the decisions should be

reversed and the case remanded to the court

of appeals with the specific requirements

that a hearing be conducted to determine and

outline specifically how it determined that

this FOIA appeal was somehow frivolous.

ae Le ee a ee

tore an Saat

ee ete

The Court of Appeals should also be

required to show and/or explain and/or

justify the pattern of threats made against

the petitioner in every other FOIA appeal

which he submitted. The threats should

either be justified on the basis of facts

or the they should be discontinued.

Respectfully submitted,

Curtis\L. Wrenn, Pro Se

P. O. Box 203

Fort Drum, NY 13603

Tel: (€315¢ 772-7817

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

CURTIS L. WRENN

P. O. Box 203

Fort Drum, NY 13603,

Petitioner.

U. S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION, ET AL.,

Respondents.

PETITIONER'S APPENDIXES

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

LIST OF PETITIONER'S APPENDIXES

APPENDIX PAGE

Decision of the U.S. Court of Appeals

Second Circuit, May 20, 1991......... s~@

Decision of the U.S. Court of Appeals

Second Circuit, Apr 1, 1991.......... 3-4

Petition for Writ of Mandamus, January

1B, TOOL... cc rrscnerecvwesesepessses 5-27

Petition for Rehearing and/or In Banc

Consideration, April 4, 1991....... 28-30

Petition for Reinstatement, Docket Wo

91-3006, BMOrenm 2, BOBR. cc ccesvceosss 3133

Complaint, 89-CV-315, USDC Northern

District of NY, March 22, 1989..... 34-40

Plt's Motion for Summary Judgment and

Preliminary Relief, 89-CV-315...... 41-45

Decision of USDC ND NY, 89-CV-315, Feb

13, 1990 Granting EEOC's Motion for

Partial Summary Judgment........... 46-48

Plaintiff's-Appellant Appeal Memorandum,

Docket No 60-6097, May 17, 1990.... 49-54

APP 4

Page 1 of 2 Pages

United States Court of Appeals

For The

Second Circuit

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on the

twentieth day of May one thousand nine hundred and

ninety-one.

WRENN

Vv. DOCKET NUMBER

91-3006

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

A petition for rehearing containing a suggestion

that the action be reheard in banc having been filed

herein by appellant pro se, Curtis L. Wrenn.

Upon consideration by the panel that decided the

appeal, it is

Ordered that said petition for rehearing is

DENIED.

It is further noted that the suggestion for

rehearing in banc has been transmitted to the judges

of the court in regular active service and to any

other judge that heard the appeal and that no such

judge has requested that a vote be taken thereon.

/s/

ELAINE B. GOLDSMITH

Clerk

APPENDIX B

Page 1 of 2 Pages

United States Court of Appeals

For The

Second Circuit

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on the

first day of April one thousand nine hundred and

ninety-one.

IN RE: CURTIS L. WRENN

91-3006

A motion having been made herein by the appellant

pro se

for a writ of mandamus

Upon consideration thereof, it is

Ordered that said motion be and is hereby is

denied.

_ a

RKW EVG JMW /s/illegible

/s/illegible

APPENDIX C

Page 1 of 23 Pages

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CURTIS L. WRENN

P. O. Box 203

Fort Drum, NY 13603,

Petitioner.

RE: Curtis L. Wrenn v. U.S. Equal Employment

Opportunity Commission, Docket 89-CV-315, USDC

ND NY; CCA 90-6097

PETITION FOR WRIT OF MANDAMUS

COMES NOW the petitioner to respectfully ask this

Honorable Court, pursuant to Rule 21(c) of the

Federal Rules of Appellate Procedure, to issue a

Writ of Mandamus and an order directing the United

States District Court for the Northern District of

New York to reopen the above captioned case

regarding the petitioner’s claims against the EEOC.

As grounds for this extraordinary request, the

petitioner asks the court to consider the following:

1. This court’s recent decision in Docket No

90-6089, November 16, 1990 where the court states

the following at page 9 of its decision: “Wrenn was

thus obliged to exhaust administrative proceedings

;

before filing a civil action under Title VII” ...

and “We believe that Wrenn, having initiated

administrative proceedings on his ADEA claim, was

thus obliged to exhaust such proceedings before |

filing a civil action under the ADEA.”

2. Since at least May 1978 the petitioner has

been trying, without success, to have the EEOC

comply with the provisions of Sec 706(b) of The EEOC

Act which provides that “Whenever a charge is filed

by or on behalf of a person claiming to be

aggrieved, ..., alleging that an employer ... has

engaged in an unlawful employment practice, the

Commission ... shall make an investigation thereof.”

3. The petitioner has experienced severe

difficulties with the EEOC. More specifically,

numerous charges of employment discrimination have

been lost, willfully destroyed or not processed. As

a proximate result, the petitioner has been denied

certain rights and privileges.

4. In an attempt to have the EEOC enforce The

EEOC Act by having the VA to process a charge of

employment discrimination pending since November

PND She i UA I te At ete oe te tet Be eRe AB cy IRS «hs

- b

1981, the petitioner on September 21, 1988 asked

Chairman Thomas and Senator D’Amato to assist him in

having the charge processed so that he could

demonstrate that he had exhausted the required

administrative remedies. Instead of responding in a

positive fashion by indicating what action it would

take, the EEOC retaliated against the petitioner by

informing Senator D’Amoto that “Mr. Wrenn has filed

approximately 326 charges ...” a clear violation of

Sec 706(b) of The EEOC Act which provides that

“Charges shall not be made public by the

Commission.” This is the second known EEOC

violation.

5. In further support of this request to

reopen the claims against the EEOC, the petitioner

submits that the issues which he previously

complained of against that agency, including but not

limited to concerted action by it to deprive him of

rights, privileges and immunities secured to all

citizens of the United States, have not been

resolved, but are continuing in nature. The primary

problems which continue to plague the plaintiff is

the apparent willful unlawful destruction by the

EEOC of this investigative files pertaining to

charges of discrimination filed by the petitioner

AFTER he files a request for a copy pursuant to the

Freedom of Information Act (FOIA). In addition,

charges are lost or mysteriously disappear. also,

the petitioner has been denied his statutory Notice

of Right to Sue. As a result of the actions and/or

inactions of the EEOC the petitioner has been

deprived of documents needed to pursue his claims in

the federal courts. The court’s attention is

invited to the following exhibits, which are

incorporated herein expressly by reference:

Exhibit 1 - File destroyed AFTER FOIA request was

made and while the lawsuit is still

pending. See Wrenn v. NYS OMH, 82 CV

3606 (CES) USDC SD NY.

Exhibit 2 - File destroyed AFTER FOIA request was

made and while the lawsuit was still

pending. See Wrenn v. Whitney M.

Young, Jr. Health Center, et al., 85

CV 1096 CA Docket No 89-7449, March

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Exhibit 3 -

Exhibit 4 -

Exhibit 5 -

30, 1990.

Files destroyed apparently after the

petitioner requested Senator D’Amoto

to assist him AND after he filed his

FOIA request.

In response to petitioner’s FOIA

requests the EEOC has alleged that

“we are unable to locate said charge

file.”

correspondence to Senator d’Amoto;

EEOC’s retaliation alleging the

plaintiff filed over 326 charges

(during more than a ten year period

in which he has been denied

employment for over two thousand jobs

and has since July 1, 1978 been

deprived of employment in his chosen

profession of hospital and health

care administration); and

petitioner’s request for information

under the FOIA concerning the 326

charges has been denied.

Exhibit 6 -

Exhibit 7 -

Exhibit 7A-

Page 9 of Docket No. 90-6089, Wrenn

v. VA. November 16, 1990.

Petitioner’s charge against the

University Maryland alleging

“institutionalized practice of paying

Blacks and females less than white

males ...” and “denial of due

process”. Page 5.

EEOC’s Determination on Appeal

Petition where the EEOC states at

page 3 “Since the Charging Party

filed his charge more than a year

after notice that he would be denied

tenure and not received a new

contract ..." The EEOC has denied

the petitioner’s FOIA request for the

basis for this untrue statement.

Also, the EEOC states on the same

page that “Further, a letter from

Charging Party to his former employer

shows that he protested the action as

retaliatory ...” Despite this

“

Exhibit 7B-

Exhibit 7C-

Exhibit 7D-

Exhibit 7E-

Exhibit 8 -

acknowledgement, the EEOC refused to

provide the petitioner with a

statement that he had exhausted the

required administrative remedies in

connection with his charge of

retaliation.

The EEOC’s Determination which denied

the petitioner’s charge of

retaliation.

The USDC Order of Dismissal, as a

result of the failure to act by the

EEOC.

The denial by the EEOC of information

which would support the petitioner’s

claims in the federal courts. See

esp page 2.

The EEOC has denied petitioner the

right to exhaust his administrative

remedies.

Two Examples of where the EEOC has

refused the petitioner’s request for

a Notice of Right to Sue, thus

Exhibit 9 -

Exhibit 10-

Exhibit 11-

Exhibit 12-

Exhibit 13-

depriving him of his right to seek

redress.

The EEOC has denied the petitioner

the opportunity to exhaust his

required administrative remedies.

The EEOC’s invasion of petitioner’s

privacy and violation of the Privacy

Act by disclosing his charge filing

activities WITHOUT his permission.

The EEOC’s second invasion of

petitioner’s privacy and violation of

the Privacy Act by the unauthorized

disclosure of the petitioner’s charge

filing activities.

Petitioner’s complaints against and

about the actions and/or inactions of

the EEOC.

The EEOC informing Senator Moynihan

that it had instructed its staff not

to respond to any more inquiries from

or about Mr. Wrenn, and other

refusals to assist him.

eS eS ee ee!

PS a ae -.

Exhibit 14—- In response to the petitioner FOIA

request and while his appeal was

pending, the EEOC destroyed the file.

The file was destroyed despite the

fact the case was still pending in

the federal courts. See page 14

where it is clear that the EEOC’s

policy is “case files that are a

subject of a court action is

preserved until the completion of

such court action.” See USDC ND NY

85 CV 1096 86 CV 916. See also CA

Dockets 86-6025 and 89-7449. The

court should also note that the

district court denied his requests

for discovery and thus he was

deprived of documents to prosecute

his case.

REASONS FOR GRANTING THE PETITION

I. STATEMENT OF THE FACTS:

1. The pertinent facts and/or decisions and/or

actions and/or inactions by the EEOC are

demonstrated by the incorporated exhibits.

2. The facts are also demonstrated by the

complaint against the EEOC in Civil Action 89-CV-

315. The facts of record show that the petitioner

filed his complaint against the EEOC in an attempt

to have that federal agency comply with Sec 706(b)

of The EEOC Act and the FOIA. The case was

dismissed allegedly because of a failure to state a j

cause of action. Petitioner appealed and the appeal |

was denied. In addition to denying the appeal the

court imposed sanctions against the petitioner for

$500.00 allegedly because the appeal was frivolous.

The court did not discuss the case, the facts or

the merits of the case. More importantly the court

did not state the basis for its decision that the

appeal was frivolous.

II. STATEMENT T

1. Whether a cause of action is stated against

the EEOC when a complainant alleges that the agency

has (1) refused to process his charges of employment

discrimination against federal, public and private

employers (Sec 706(b) of The EEOC Act); (2) invaded

his privacy, in violation of the Privacy Act and The

EEOC Act, by disclosing information to third parties

regarding the petitioner’s charge filing activities;

and (3) that the agency refused to provide

information requested under the FOIA.

2. Whether the pattern and practices of the

EEOC against petitioner in denying him the right to

seek legal redress against employers who have denied

him equal employment opportunity, constitute a

“cause of action” within the meaning of Rule 12b(6)

of the FRCP and grant jurisdiction under Rule

12b(2).

3. Whether the district court abused its

discretion when it dismissed the petitioner’s claims

against the EEOC.

4. Whether this court abused its discretion

when it denied the petitioner’s appeal. Also,

whether the court abused its discretion when it

imposed sanctions in the form of attorney fees on

the petitioner for filing the appeal, without

discussing the basis for saying the appeal was

frivolous. . |

III. LEGAL ARGUMENTS FOR GRANTING THE PETITION:

1. This court correctly noted in Docket No.

90-6089 (Ex 6) that a complainant is required to

ae a neal

exhaust his administrative remedies before pursuing

a claim in the district court. The court, however,

failed to mention the cases previously before it

involving this petitioner in which the responsible

federal agency refused to process administrative

complaints, and thus depriving the petitioner of the

right to pursue his claims in the district court. A

few examples:

a. 85-CV-109 A -60 nd

89-7449) where this court upheld the district

court’s refusal to direct the EEOC and DHHS to

process the petitioner’s charges of discrimination,

and thus depriving him of the opportunity to

demonstrate that he had exhausted the required

administrative remedies. This case is also noted

for the courts’ refusal to require DHHS to provide

information requested under the FOIA. The case is

also noted for the fact that the district court also

denied the petitioner’s discovery requests, thus

depriving him of the opportunity to properly

prosecute his case.

b. CA Docket No 87-6157 where this court

upheld the district court’s determination that it

did not have venue and/or jurisdiction to rule on

the merits of the petitioner’s FOIA request and/or

his request to have DHHS process his charges of

discrimination. This court also upheld the district

court’s decision to impose sanction and award

attorney fees allegedly because the petitioner

claims were attempts to harass the defendants.

c. 86-CV-916 (CA Docket No 87-6121), where

this court upheld the district court’s denial of

petitioner’s request for information regarding a

criminal allegation made against him by DHHS.

Despite repeated requests by the petitioner EVERY

court considering the FOIA has steadfastly refused

to even consider the merits of the FOIA request.

This court also upheld the district court’s refusal

to direct DHHS to investigate the petitioner’s

charges so he could demonstrate that he exhausted

the required Title VI administrative remedies. See

Exhibit 7C. See also Docket No 87-6157.

2. The foregoing is submitted to demonstrate

that this court’s action in Docket No 90-6089 is

another example of the court taking unwarranted

punitive action against the petitioner for

attempting to obtain redress for the many wrongs

visited upon him by the EEOC and other federal

agencies, and private and public employers since at

least July 1978. The case at bar is noted for the

fact that the district court denied sanctions and

this court, apparently on its own motion, imposed

sanctions WITHOUT discussing how the petitioner’s

request for the EEOC to do what Congress has

mandated it to do is somehow a frivolous claim.

3. The EEOC’s refusal to process the

petitioner’s charges and/or to provide him with the

statutory Notice of Right to Sue should not be

condoned by this court. The EEOC has demonstrated a

clear pattern or practice of denying the petitioner

the right to seek legal redress by, among other

things, implementing regulations and/or practices to

single out the petitioner for disparate treatment,

such as not providing him with the requested Notice

of Right to Sue in cases filed more than 180 days

before the request was made. Petitioner submits

that the action and/or inaction of the EEOC is a

clear violation of the Civil Rights Act of 1964, as

amended. See, e.g., Mohasco Corporation v. Silver,

447 US 807, 65 L Ed 532, 100 S Ct 2486 (1980) where

the court noted: “The Equal Employment Opportunity

Commission cannot adopt regulations that are

inconsistent with its statutory mandate under the

Civil Rights Act of 1964 ...” See also Exhibits

1,2,7A,7B,7D,7E, and 8-10.

4. The disclosure by the EEOC of petitioner’s

charge filings to third parties (Exhibits 10 and 11)

constitute a clear invasion of the petitioner’s

privacy AND a clear violation of the Privacy Act and

The EEOC Act. Thus, these disclosures present a

serious question regarding whether or not in the

absence of a subpoena duces tecum the EEOC violated

and/or unlawfully invaded the plaintiff’s privacy by

disclosing unsolicited information to Senator

D’Amoto and others, which it neither was requested

to disclose nor had a right or authority to

disclose. See, e.g., 5 USC 552a(b) which precludes

the disclosure of any records in a system of records

without the written consent of the subject of the

records. See, also Britt v. Naval Investigative

Service (CA 3, September 14, 1989) No 88-1710, 58 LW

1051; O’Donnell v. U.S. (CA 3, December 15, 1989),

No 89-1363, 58 LW 2384; and Whalen v. Roe, 429 U.S.

589 (1977).

5. The exhibits in this case clearly

demonstrate that the EEOC has contravened the

constitutional guarantee of equal treatment, in that

charges filed by the petitioner are not processed in

the same manner as those of other individual

complainants. In addition, the petitioner’s FOIA

requests are handled differently by the various EEOC

District Offices AND different from how other

individual requests are handled. See, e.g., Young

, ye.

v. Pierce (DC Tex 1982), 544 F. Supp 1010 where the

court held “To extent a plaintiff asserts that

federal agency is violating terms of a federal

statute by abdicating affirmative duty to eliminate

discrimination, action is properly brought against

agency; in such circumstance, agency is a partner in

discrimination, and may be held responsible for such

complicity.” Accordingly, the facts in this case

demonstrate that the EEOC has violated the

Administrative Procedure Act by refusing to timely

process complaints of unlawful discrimination filed

by the petitioner (Exhibits 7-7E, 8 and 9). See,

e.g., Doran v. Salem Inn, Inc. 422 US 922, 931, 95 S

Ct 2561, 45 L ed2d 648 (1975).

6. The denial by the EEOC of information under

the FOIA, esp. Exhibits 7-7E, is a clear violation

of the FOIA (5 USC 552(a)(4)B). The EEOC in the

Maryland’s case made unsupported disparaging remarks

and statements concerning the petitioner without any

facts to support its allegation. This court is

being asked not to continue condoning the

withholding of information from the petitioner by

the EEOC, but to “determine the matter de novo” and

determine WHY the EEOC and other federal agencies

have covered up their activities against the

Pe ee ee

petitioner by denying him the information he would

need to prosecute actions against them and others.

See, e.g., U. S. Dept. of Justice v. Reporters,

Cert. to CA DC, Sup Ct Case No 87-1379 (Mar 1989).

Te Ee OE

The questions the court is being asked to decide:

(1) whether the EEOC had information in the Maryland

case to support its statements at page 2 of Exhibit

7D, (2) if the EEOC had such information, then was

it unlawfully withheld from the petitioner, and (3)

if the EEOC did not have such information, why did

it make the unsupported allegations, and more

importantly why it has not just acknowledged that

the statements were unsupported. Also, the court is

being asked to determine, under the FOIA, the

disposition of the petitioner’s retaliation claim by

the EEOC in the Maryland case.

7. This court’s previous decision in Docket No

90-6097, especially its imposition of sanctions

against the petitioner, should be revoked. The

court cited no facts and/or acts by the petitioner

which could characterize his civil action against

the EEOC as “frivolous” and/or without foundation.

Moreover, the court did not cite any facts or

examples to show that the petitioner’s complaint

against the EEOC was not grounded in fact or was not

legally tenable, or that the complaint was baseless.

All the court did was state the complaint was

“frivolous” without citing ANY facts or basis for

its statement. The petitioner is not aware of any

case involving him that this court has rendered a

decision, pursuant to Federal Rules of appellate

Procedure 38, that it had “determined that the

appeal was frivolous.” Moreover, the court has not

refuted the petitioner’s contention that his

complaint against the EEOC was “well grounded in

fact and is warranted by existing law or a good

faith argument for the extension, modifications, or

reversal of existing law, ...” which is the heart of

Rule 11. The petitioner submits that he has fully

complied with the central purpose and duty imposed

by Rule 11, in that he has “conducted a reasonable

inquiry and has determined that any papers filed

with the court are well-grounded in fact, legally

tenable, and “not interposed for any improper

purpose". See, e.g., Cooter & Gell v Hartmarx

Corp., US Sup Ct Docket No 88-275, decided June 11,

1990. The court is asked to review the Exhibits and

determine whether this lawsuit was initiated AFTER

conducting reasonable inquiry. Other additional

reasons this court should reconsider its decision:

a. An award of attorney’s fees to the

defendants in this case is not justified, primartly

because there has been no showing by this court, the

district court or the defendants that the

petitioner’s claim “was frivolous, unreasonable, or

groundless, or that the plaintiff continued to

litigate after it clearly became so.”

Christian n Vv 434 U.S. 412,

423, 98 s. Ct. 694, 701, 54 L.Ed.2d 648 (1978).

b. Rule 11 provides in pertinent parts

that:

“The signature of an attorney or party

constitute a certificate by the signer

that the signer has read the pleading,

motion, or other paper; that to the

best of the signer’s knowledge,

information, and belief formed after

reasonable inquiry it is well grounded

in fact and is warranted by existing

law OR (emphasis added) a good faith

argument for the extension,

modification, or reversal of existing

law, and that it is not interposed for

any improper purpose, such as to harass

or to cause unnecessary delay or

needless increase in the cost of

litigation. ”

Accordingly, the decision should be reversed in this

case in the same manner and for reasons similar to

the Supreme Court’s reversal of another Rule 11

sanction decision of this court. See, Pavelic &

LeFlore v. Marvel Entertainment Group, No 88-791,

The United States Law Week, vol 58, No. 22 58 LW

4038-4040.

8. should the court not be inclined to reopen

this case and/or to revoke its earlier decision, the

petitioner respectfully ask the court to “discuss

the specific information that forms the basis of the

plaintiff’s suit and explain why this information

does not constitute adequate factual substance for

the commencement of a nonfrivolous case ...”. See,

@.g., Hermes v. Hein, 742 F.2d 350, 357 (7th Cir.

1984).

CONCLUSION

Based upon the foregoing the court should reopen

this case and review the activities of the EEOC.

The facts in the case demonstrate that the

petitioner has submitted more than adequate evidence

to show that the EEOC has denied him, among other

things, the equal protection afforded by Title VII

because of his race and because he has opposed

employment practices made unlawful by the

Constitution and laws of the United States, and

Ri Set Se ieee, be eee

because he has complained of the manner in which the

EEOC processes and/or refused to process his charges

of employment discrimination. See, e.g., A&A

Concrete, Inc. v. White Mountain Apache Tribe (CA

Ariz 1982), 676 F.2d 1330.

Le, NE | ee ee ee

Respectfully submitted,

/s/

Curtis L. Wrenn, Pro Se

P.O. Box 203

Fort Drum, NY 13603

Tel: (315) 772-6102

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Petition for

Writ of Mandamus was mailed to Hon. Con. G.

Ninel wi KEE,

SES on een wil Ra GPF Rta SG

Cholakis, United States District Judge, 445

Broadway, Albany, NY 12207, and the United States

Attorney, 445 Broadway, Albany, NY 12207, this 12th

day of January, 1991, via U. S. mail postage

prepaid.

/s/Curtis L. Wrenn

APPENDIX |

Page 1 of 3 Pages |

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

IN RE: CURTIS L. WRENN |

91-3006

PETITION FOR REHEARING AND/OR IN BANC CONSIDERATION

COMES NOW the petitioner to ask the court to

reconsider its decision of April 1, 1991, on the

grounds that the court has misapprehended the facts

in the case and/or misapplied the laws governing the

granting and/or denial of information under the

FOIA/PA, and/or intentionally denied the petition

for writ of mandamus because of the petitioner’s

race (Negroid) and/or in retaliation for his

previous appeals.

This court has demonstrated a clear pattern or

practice of denying EVERY request for information

under the FOIA/PA submitted by this petitioner

WITHOUT providing ANY explanation for its action.

That is, this is one of at least four requests for

information under the FOIA/PA which this court has

denied without providing the basis for its denial.

The court’s action in this case demonstrates a

blatant malicious denial of petitioner’s rights

under the constitution and laws of the United States

SOLELY because he is a Negroid person who exercised

his First Amendment rights. This is supported by

the fact that this court denied the petition for

writ of mandamus BEFORE it received it. Exhibit 1

shows that the petition was mailed Mar 30, 1991.

This is at least the third time this court has

denied an appeal of this petitioner while not having

before it the pleading submitted by him. See Docket

No 87-6157, a case in which the Clerk returned the

petitioner’s Brief AND his Reply Brief WITHOUT

offering ANY explanation for the return. The court

later denied the appeal SOLELY on the basis of the

Brief of the Appellees.

In summary, the continuing unlawful action of

this, or ANY other court, to deny the petitioner

information under the FOIA/PA should not be

condoned. The denials of the petitioner’s requests

under the FOIA not only violate 5 USC 552(a) but

more importantly the decisions convene decisions of

the Supreme Court. See, e.g., U.S. Dept. of Justice —

v. Reporters, Cert. to CA DC, Sup Ct Case No 87-1379 ©

(Mar 1989).

Respectfully submitted,

/s/

Curtis L. Wrenn, Pro Se

P.O. Box 203

Fort Drum, NY 13603

Tel: (315) 772-4025

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was mailed to

Judge Cholakis and the U. S. Attorney, 445 Broadway,

Albany, NY 12207, this 4th day of April, 1991.

/s/Curtis L. Wrenn

APPENDIX E

Page 1 of 3 Pages

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CURTIS L. WRENN

P. O. Box 203

Fort Drum, NY 13603. Docket No 91-3006

Petitioner

PETITION FOR REINSTATEMENT

COMES NOW the petitioner to petition the court to

reinstate the above captioned case. The court

previously dismissed this FOIA action on the grounds

that the petitioner and failed to pay a $500.00 fine

levied by the court in another FOIA action, namely

Curtis L. Wrenn v. United States, No 90-6025. The

latter concerns a claim for information under the

FOIA filed against the EEOC. The case at bar is the

result of a petition for writ of mandamus in which

the petitioner has asked the court to review the

continuing denial of information, documents and

things by the EEOC under the FOIA, especially the

denial of information pertaining to the University

of Maryland Hospital, Baltimore (Exhibit 7D of the

petition for writ of mandamus).

The requested information at Exhibit 7D is needed

for a trial scheduled July 15, 1991 against the

University of Maryland Hospital. See Exhibit 2.

(The maryland Case is the origin of petitioner’s

troubles in that it was the first charge of

discrimination he filed with ANY agency. Since

filing that charge in March 1978, the petitioner has

been denied employment in his chosen profession of

hospital and health care administration by EVERY

employer which he made application in response to

advertisements which the employer announced that it

was seeking applicants with his qualifications.

Moreover, the petitioner has now become the

“wrongdoer” according to the action of this court,

instead of being a victim of discrimination and

denial of the rights, privileges and immunities

secured to citizens by the constitution and laws of

the United States).

The information at Exhibits 1 and 3 demonstrate

that the requirement of the court has been met.

WHEREFORE, the petitioner prays this case will be

reinstated. Moreover, the petitioner asks that the

case be in every way expedited, and that if at all

possible the court will render a decision prior to

the trial scheduled July 15, 1991 in the Maryland

District Court. The information requested is

essential for the plaintiff to prosecute the case

which has been pending since 1982.

Respectfully submitted,

/s/

Curtis L. Wrenn, Pro Se

P. O. Box 203

Fort Drum, NY 13603

Tel: (315) 772-4025

APPENDIX F

Page 1 of 7 Pages

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

CURTIS L. WRENN

P. O. Box 203 89-CV-315

Fort Drum, NY 13603,

— —_

Plaintiff,

ADMINISTRATOR

VETERANS ADMINISTRATION

810 Vermont Avenue, NW

Washington, D.C. 20430

-and-

ATTORNEY GENERAL OF THE UNITED STATES

DEPARTMENT OF JUSTICE

10th and Pennsylvania Avenue, NW

Washington, D.C. 20530

~and-

CHAIRMAN

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION !

2401 E Street, NE

Washington, D.C. 20507

——=and-

SECRETARY

U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES

200 Independence Avenue, SW

Washington, D. C. 20201,

Defendants.

gary allt 34

COMPLAINT

This is a complaint in equity for injunctive and

preliminary relief. The ground for this complaint

is that the defendants have conspired by lawful and

unlawful means to deprive the plaintiff of rights,

privileges and immunities secured to him by the

Constitution and laws of the United States,

including but not limited to the First and

Fourteenth Amendments, and The Equal Employment

Opportunity Act and the Freedom of Information Act.

JURISDICTION

1. The Jurisdiction of this Court is invoked

pursuant to the First and Fourteenth Amendments to

the Constitution of the United States, in that the

plaintiff has been deprived of his First Amendment

right to oppose employment practices which he

perceives to be unlawful and has been fa’sely

accused of criminal activities without the benefit

of due process.

2. The jurisdiction of this Court is also

invoked pursuant to the Freedom of Information Act

(5 USC 552) (FOIA), this being an action in which

the plaintiff has been denied information, documents

and things which he requested under that Act. More

specifically, the plaintiff submitted timely

requests to the federal agencies herein named as

defendants and his requests were denied.

CLAIM

1. The plaintiff’s complaint against the named

defendants consists of the following incorporated

exhibits:

A - 88-11-FOIA-131-BA. Denial of documents

and things which support the EEOC’s allegation that

it did not have jurisdiction to investigate the

three charges at issue.

B - 88-12-FOIA-147-BA. The denial of

documents and things which the EEOC alleged used to

state that "... he (the plaintiff in this case)

filed his charge after his employment with

Respondent ceased” and “... we find the charge

untimely in regard to the issue of denial of tenure

and non-renewal of contract.”

C - 88-10-FOIA-280-NY. The denial of

documents and things which support the

Administrative Law Judge’s statement “Since the

offer of full relief was certified and offered by

Or. Graninger.”

D - EEOC Charge No 021855170. The denial of

documents and things which were used as a basis for

the EEOC’s refusal to investigate this charge as is

required by Section 706(b) of the Equal Employment

Opportunity Act.

E - 88-11-FOIA-217. The denial of documents

and things pertaining to the status and/or

disposition of 326 charges which allegedly were

filed by the plaintiff with the EEOC. The plaintiff

has been trying since at least May 24, 1978 to have

the EEOC process his charges of employment

discrimination against public and private employers.

F - Case #85-552. The denial of UWocuments

and things by DHHS concerning three specific charges

of discrimination AND DHHS’s continuing refusal to

process plaintiff’s charges despite the requirement

of Title VI.

G - Case No 86-279. The denial of documents

and things by DHHS concerning an investigation of

the plaintiff by the Office of the Inspector

General.

H - Case No 86-594(DHHS) and Appeal No 86-

1619. Denial of documents and things concerning an

allegation made by DHHS to the FBI that plaintiff

stole government property.

I - FOIA 86-1003. The denial of information

regarding processing plaintiff’s civil conspiracy

complaint by the Department of Justice.

J - FOIA Requests. The denial of information —

by VA concerning applications for employment which

the plaintiff has submitted to various VA offices.

2. the exhibits indicate that the defendants

have conspired among themselves and with public and

private employers to deny plaintiff equal employment

opportunity and the right to seek legal redress

against those who have discriminated against him,

because of his race (Negroid), age (date of birth

February 14, 1930) and retaliation (for the

plaintiff’s opposition to employment practices made

unlawful by the Constitution and laws of the United

States. The defendants have covered up their

conspiracy by denying the plaintiff access to

essential information.

3. Moreover, the defendants have caused the

plaintiff great economic and psychological harm by

their tactics of subjecting him to great costs in

time and money, and by alleging that he: (1) is a

criminal (extortion and theft), and (2) that he is a

litigious person who files baseless complaint, all

in an attempt to prevent the plaintiff’s employment

in his chosen profession of hospital and health care

administration.

4. As a proximate result of the actions and/or

inactions of the defendants, the plaintiff has been

unable to obtain employment in his chosen

profession. More importantly he has been unable to

obtain legal redress against those who have

discriminated against him.

YER FOR R F

WHEREFORE, the plaintiff: «:ays the Court will grant

him preliminary relief and order the defendants to

immediately provide him the information, -documents

and things which he requested under the FOIA.

Plaintiff also prays the Court will grant him

additional relief as the Court deems just

considering the circumstances of this case,

including but not limited to costs and damages.

Plaintiff respectfully submits for the Court’s

consideration that the acts herein complained of

were intentionally and maliciously undertaken to

stigmatize, libel and slander him so as to prevent

his employment at to discourage him and others from

filing complaints in connection with employment

discrimination.

Respectfully submitted,

/s/

Curtis L. Wrenn, Pro Se

P.O. Box 203

Fort Drum, NY 13603

Tel: (315) 772-4021

DATED: February 20, 1989

APPENDIX G

Page 1 of 5 Pages

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

CURTIS L. WRENN,

Plaintiff,

vs Civil Action

89-CV-315

SECRETARY, DEPARTMENT OF

VETERANS AFFAIRS, et al., JUDGE CHOLAKIS

Defendants. NOTICE OF MOTION

PLEASE TAKE NOTICE that upon the annexed affirmation

of Curtis L. Wrenn, affirmed May 29, 1989, and upon

the complaint here, plaintiff will move this Court,

Judge Cholakis, U.S.D.J. in the United States

Courthouse, Albany, New York on the 7th Day of July

1989, at 9:30 AM, or as soon thereafter as counsel

can be heard, to grant him summary judgment,

pursuant to Rule 56(a) of the Federal Rules of Civil

Procedure (FRCP), and for preliminary injunctive

relief, pursuant to Rule 65(d) of FRCP. A

memorandum of support is included.

Respectfully submitted,

/s/

Curtis L. Wrenn, Pro Se

M N T

I. PLAINTIFF’S STATEMENT OF MATERIAL FACTS WHICH

THERE ARE NO GENUINE ISSUES

1. During the past eleven years the plaintiff

has submitted applications for and been denied more

than 2500 positions by public and private employers.

Believing in some cases he was denied employment

because of impermissible factors, the plaintiff has

filed charges and other administrative actions with

the defendants named herein.

2. The defendants have not only failed to take

the requested action, but more importantly the.

plaintiff has been denied information requested

pursuant to the Freedom of Information Act (FOIA).

II. PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT

AN NA TIV F

1. This is a civil action instituted by the

plaintiff against the defendants under the FOIA.

The gravamen of plaintiff’s claim alleges a

violation of the FOIA, in that the plaintiff was

denied information concerning the concerted action

of the defendants to aid and abet public and private

employers by, among other things, refusing to

enforce a mandate of Congress, i.e., The Equal

Employment Opportunity Act.

2. This motion is made on the basis of the

facts of record as submitted to the defendants and

the Court in plaintiff’s complaint. Plaintiff

submits that on the basis of the complaint and

incorporated exhibits, he is entitled to summary

judgment and preliminary injunctive relief as a

matter of law.

3. In this case at bar it is sufficient that

the evidence of record, in the form of plaintiff’s

exhibits which demonstrate his repeated FOIA

requests and the subsequent denials by the

defendants, demonstrates that no material dispute

exists. Therefore, summary judgment should be

granted as a matter of law. See, e.g., Celotex

Corp. v. Catrett (1986) 106 S Ct 2548.

4. Preliminary injunction is warranted in this

case because of the irreparable harm to the

plaintiff resulting from the defendants’ continuing

efforts to stigmatize and defame him, and their

efforts to aid and abet private and public employers

against the plaintiff by, among other things:

withholding evidence of their concerted actions

against him be refusing to provide him information

under the FOIA, and by refusing to timely process

administrative actions filed by him, as required by

the Administrative Procedures Act. See, e.g., Doran

v. Salem Inn, Inc. (1975) 422 US 922, 931, 95 S Ct

2561, 45 L ed2d 648.

5. Should this Court not consider the

irreparable harm to the plaintiff as a basis for

granting the preliminary injunction, the court is

respectfully requested to grant the relief on the

basis that the relief is expressly authorized by

statute and that the statutory conditions have been

satisfied. That is, the plaintiff has exhausted the

required statutory administrative remedies. See,

e.g., South Central Bell Tel. Co. v. Louisiana Pub.

Serv. Comm. (CA 5th, 1984) 744 F2d 1167.

WHEREFORE, plaintiff prays that his motion will be

granted and that the defendants be ordered to:

1. Produce the requested documents

2. Cease and desist their concerted action

against the plaintiff.

3. Process any and ali administrative claims

and/complaints submitted by the plaintiff in the

SAME manner as they would process such claims for

any other citizen.

Respectfully submitted,

/s/

Curtis L. Wrenn, Pro Se

P.O. Box 203

Fort Drum, NY 13603

Tal: (315) 772-4021

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was mailed to

U. S. Attorney, U. S. Post Office & Courthouse,

Albany, NY 12201, this 30th day of May, 1989, via

U.S. mail, postage prepaid.

/s/Curtis L. Wrenn

APPENDIX H

Page 1 of 3 Pages

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

CURTIS L. WRENN,

Plaintiff,

Vv;

ADMINISTRATOR,

VETERANS ADMINISTRATION, et, al.,

Defendants.

Appearances:

HONORABLE FREDERICK J. SCULLIN, JR.

UNITED STATES ATTORNEY

Northern District of New York

James T. Foley U.S. Courthouse

445 Broadway - Room 231

Albany, New York 12207

ORDER

Civil No.

89-CV-315

(Hon. Con. G.

Cholakis)

Barbara D.

Cottrell]

Assistant

U.S. Attorney

of Counsel

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

1801 L Street, N.W.

Washington, D.C. 20507

P.O. Box 1691

Albany, New York 12201

HONORABLE CON. G. CHOLAKIS

United States District Judge

Defendants having moved by their attorney,

Frederick J. Scullin, Jr., United States Attorney

for the Northern District of New York, Barbara D.

i. =

Richard E.

Dunlop, Esq.

of Counsel

Cottrell, Assistant United States Attorney, of

counsel, for an order dismissing the above-captioned

action pursuant to Rules 12(b)(1) and 12(b)(6),

Federal Rules of Civil Procedure, defendant Equal

Employment Opportunity Commission (hereinafter

“EEOC”) having moved for an order granting partial

summary judgment and partial dismissal, and for an

order providing injunctive relief and imposing

sanctions, counsel for the United States and the

Equal Employment Opportunity Commission having

appeared and waived oral argument in this matter,

and due consideration having been given to the

papers before the Court on submission by all

parties, it is hereby,

ORDERED, that plaintiff’s motion for summary

judgment and partial dismissal be, and hereby is

DENIED; it is further

ORDERED, that defendant EEOC’s motion for partial

summary judgment and partial dismissal be, and

hereby is GRANTED; it is further

ORDERED, that defendant EEOC’s motion for

injunctive relief and the imposition of sanctions

be, and hereby is DENIED.

Dated: Feb 13, 1990

Albany, New York

/s/Con. G. Cholakis

HON. CON. G. CHOLAKIS

UNITED STATES

DISTRICT JUDGE

APPENDIX I

Page 1 of 6 Pages

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CURTIS L. WRENN,

Plaintiff-Appel lant,

vs Docket No.

90-6097

SECRETARY, DEPARTMENT OF VETERANS

AFFAIRS, et. al.,

Defendants-Appe!l lees.

PLAINTIFF-APPELLANT’S APPEAL MEMORANDUM

COMES NOW THE PLAINTIFF-APPELLANT and appeals the

decision of the United States District Court for the

Northern District of New York of February 13, 1990.

This memorandum of appeals is made on the basis that

the district court (1) abused its discretion, (2)

misinterpreted the facts in this case, and (3)

misapplied the laws governing the granting and/or

denial of information under The Freedom of

Information Act (As Amended) 1986,

The following cases are related to the action

herein complained of: Docket Nos: 87-6157/87-6199;

88-6037; 87-6121; 89-3043; 89-3045; and 90-6019.

A memorandum in support is submitted.

Respectfully submitted,

/s/

Curtis L. Wrenn, Pro Se

MEMORANDUM _IN SUPPORT

I. BACKGROUND:

1. The case concerns plaintiff-appellant’s

continuing efforts to obtain information from the

respondents under the provision of the Freedom of

Information Act (As Amended) 1986. The case was

filed in the district court AFTER the appellant

exhausted and/or attempted to exhaust the required

administrative remedies. See Exhibit #3.

2. The plaintiff filed a motion for summary

judgment in the district court (Exhibit 3).

Apparently in response to that motion the Defendant

EEOC filed a motion for dismissal pursuant to Rule

12(b)(1) (lack of jurisdiction over the subject

matter) and Rule 12(b)(6) (failure to state a claim

upon which relief can be granted), of the Federal

Rules of Civil Procedure.

3. The district court denied plaintiff’s

ee. _—

motion for summary judgment and granted the

Defendant EEOC’s motion for dismissal. See Exhibit

#1.

II. REASONS FOR GRANTING THE APPEAL:

1. To obtain relief under The Freedom of

Information Act (5 USC 552), a plaintiff must

establish (1) that he submitted a request to the

auibinby for the information at issue and (2) that the

agency failed to provide the requested information.

If these two factors are satisfied, the plaintiff is

entitled to file a complaint in the appropriate

“district court of the United States in the district

in which the complainant resides ..." (Exhibit #4).

2. Plaintiff, after exhausting the required

administrative remedies, filed his complaint in the

district court. The court dismissed the complaint

allegedly because it did not have jurisdiction and

because allegedly the plaintiff did not state a

cause of action.

3. This Court has authority to review the

district court’s actions under the abuse of

discretion standard. See, e.g., Albermarle Paper

Co. v. Moody, 422 U.s. 405, 424 - 25 (1975). This

appeal presents this court with an issue of first

impression for this Circuit - whether and under what

circumstances a district court has jurisdiction to |

review de novo a FOIA claim under Title 5 USC 552 }

(a)(4)B.

4. Appellant submits that the district court

had jurisdiction under 5 USC 552(a)(4)B, and that

the allegation that the court did not have

jurisdiction under Rule 12(b)(1), FRCP, is clearly

erroneous. Moreover, the court abused its

discretion when it decided that the plaintiff had

not stated a claim which relief could be granted.

5. The relief which the appellant seeks is as

stated in his complaint (Exhibit 2). That is, the

appellant was seeking information from the EEOC

pertaining to charges of discrimination which the

EEOC (1) made false and/or misleading statements to

employers and courts (Exhibit 6), (2) violated

Section 706(b) of The EEOC Act when it refused to

process charges of discrimination filed by him

(Exhibit 7), and (3) information which the EEOC had

unlawfully disclosed to others without the

appellant’s permission and/or authorization, in

violation of Section 706(b) (Exhibit 7).

6. Based on the foregoing, the district court

had jurisdiction in this case. Also, the appellant

stated a claim which relief could be granted. See

Exhibit 5.

7. The FOIA (Title 5 USC 552(a)(4)B) expressly

places the burden on the agency to sustain its

action and directs the district court to determine

the matter de novo. See, U.S, Department of Justice

v. Reporters, Cert, to CA DC, Sup Ct CAse No 87-1379

(Mar 1989).

CONCLUSION

This case should be remanded to the district court

with instructions that this case be heard de novo

without further delay. The district court’s action

should not be condoned by this Court, in that the

decision of the former is clearly erroneous and a

clear abuse of discretion.

Respectfully,

/s/

Curtis L. Wrenn, Pro Se

P.O. Box 203

Fort Drum, NY 13603

Tel: (315) 772-7817

TIFICAT Vv

I certify that a copy of the foregoing was mailed to

Barbara D. Cotrell, Esq., James T. Foley U.S.

courthouse, 445 Broadway, Room 231, Albany, NY

12207, this 17th day of May, 1990, via U.S., mail,

postage prepaid.

/s/Curtis L. Wrenn

ee ee

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