Petition — Neufeld v. Bambrough

Supreme Court brief1983

Ask Donna

What actually matters in this document.

Text

Office-Supreme Court, U.S.

FILED

62-1534 MAR 11 1983

re ALEXANDER L. STEVAS,

CLERK

IN THE

Supreme Court of the United States

October Term, 1982

EUGENE S. NEUFELD,

Petitioner,

-VSs-

BRUCE BAMBROUGH, PRESIDENT

COMPUSCAN INC., et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

EUGENE S. NEUFELD, Pro Se

200 West 86th Street

New York, New York 10024

(212) 362-5755

QUESTIONS PRESENTED

. Does a district court’s failure to review the pleadings, affida-

vits, record, and transcript before adopting a magistrate’s

report comply with the requirement of 28 U.S.C. § 636(b)(1)

that a district judge make a de novo determination of matters

referred to a magistrate?

2. Does the adoption of a magistrate’s recommended decision

without an independent de novo review by an Article HI

district judge constitute an unlawful delegation of judicial

power to a non-Article III officer in violation of Article III?

. Does a litigant who has invoked the power of an Article III

court and has not consented to reference to a magistrate have

a right, founded in the due process clause of the Fifth

Amendment and in Article III, to a de novo determination

and opinion stating reasons for denying relief from an Article

III judge?

. Does it violate the due process clause of the Fifth Amend-

ment and Article III, and does it impermissibly burden the

right of self-representation, for a court, routinely and without

litigants’ consent, to refer cases filed by pro se plaintiffs to

magistrates for dispositions that effectiveiy are final?

. Does the Eleventh Amendment immunize state officials from

liability for acting contrary to anti-discrimination statutes?

Parties in the Court of Appeals

BRUCE BAMBROUGH, President, Compuscan, Incorpo-

rated;

WARREN E. SMITH, Director, New Jersey Division on

Civil Rights;

JOHN J. DEGNAN, Individually and as Attorney General

of New Jersey;

ROBERT A. LEONARD, Individually and as former Presi-

dent of Compuscan;

VERNON N. POTTER, Individually and as former Direc-

tor, New Jersey Division on Civil Rights;

STANLEY C. VAN NESS, Individually and as the Public

Advocate of New Jersey;

NORBERT STEINBERGER, Individually and as Executive

Vice President of Compuscan;

C. Y. AISTON, Individually and as BRANCH Manager,

Paterson Office, New Jersey Division of Civil Rights;

JOSEPH H. RODRIGUEZ, as Chairman, Commission of

Investigation, State of New Jersey;

MARVIN WEISS, Individually and as Vice President, Com-

puscan;

JAMES SINCAGLIA, Individually and as Chief, Bureau of

Enforcement, New Jersey Division on Civil Rights;

WILLIAM T. BURGIN, Individually and as Director Com-

puscan;

JUDITH E. RODNER, Individually and as Deputy Attorney

General for Civil Rights, New Jersey;

MARTIN BRODY, Individually and as Director, Compus-

can;

JUDITH S. MUSICANT, Individually and as Deputy Direc-

tor, New Jersey Division on Civil Rights;

MICHEL R. BAILLEUL, as Director Compuscan; MI-

CHAEL L. ALLEN, as Director Compuscan;

NORMAN FRANK, Individually and as Vice President-Fi-

nance and Treasurer, Compuscan;

SEYMOUR NAPS, Individually and as Vice President Com-

puscan;

JULIAN F. OLNEY, Director of Compuscan; JACOB

MILLMAN, Director of Compuscan;

CAROL M. DARROW, Individually and as Corporate Sec-

retary of Compuscan;

BARBARA BERGSTROM, Individually and as Personnel

Manager of Compuscan;

MORGUERITE M. SCHAFFER, Individually and as Attor-

ney for Compuscan;

GREENBERG, MARGOLIS and ZEIGLER; LEON,

WEILL and MAHONEY; BESSEMER SECURITIES

CORPORATION; COMPAGNIE PARTICIPATIONS et

d'INVESTISSEMENTS HOLDINGS S.A. (C.P.1.H.);

COMPUSCAN INCORPORATED;

and UNITED JERSEY BANK*

* United Jersey Bank was served all papers but did not respond in the

Court of Appeals.

TABLE OF CONTENTS

I DIE hiss cccicisccscncvccsescssssseevainess

Parties in the Court of Appeals ..............0cseeeeees i

IEE ida bisusiicdvenscdusedvecessccesaves ess

IIE sisi scbitasscccrcevccisxanciaevevevenstass

DN i ank pean kistnccssahacespoacdvokcoserrisabunatess

Constitutional and Statutory Provisions Involved .....

NR dis ekvebaabeécveneenta

Reasons for Granting the Writ ...............:0cseeeeeees

THE DISTRICT COURT'S FAILURE TO

REVIEW ALL THE MATERIAL NECESSARY

TO MAKE A DE NOVO DETERMINATION

CONFLICTS WITH STANDARDS ADOPTED

BY THIS COURT AND BY OTHER CIRCUITS,

AND DOES NOT COMPORT WITH THE

FEDERAL MAGISTRATE ACT OR WITH

BERTIE BEL. i csicsccsccsesccrcscvescccsccsccccccsccees

ADOPTION OF A MAGISTRATE’S

RECOMMENDED DECISION WITHOUT AN

INDEPENDENT DE NOVO REVIEW BY AN

ARTICLE III DISTRICT JUDGE

CONSTITUTES AN UNLAWFUL

DELEGATION OF JUDICIAL POWER TO A

NON-ARTICLE III OFFICER. .................+06

A LITIGANT WHO HAS INVOKED THE

POWER OF AN ARTICLE II] COURT AND

HAS NOT CONSENTED TO REFERENCE TO

A MAGISTRATE HAS A RIGHT FOUNDED IN

THE DUE PROCESS CLAUSE OF THE

FIFTH AMENDMENT AND IN ARTICLE III

TO A DE NOVO DETERMINATION AND

OPINION STATING REASONS FOR

DENYING RELIEF UNDER AN ARTICLE III

| Relea I RRO Cee ie

PAGE

4. ROUTINE NON-CONSENSUAL REFERALS

OF PRO-SE CASES TO MAGISTRATES FOR

DISPOSITION THAT EFFECTIVELY ARE

FINAL VIOLATES THE DUE PROCESS

CLAUSE OF THE FIFTH AMENDMENT AND

Ete TD a sckcscccncsdconksnstsnssiahuanseeepunean 18

5. STATE OFFICIALS ARE NOT IMMUNIZED

FROM LIABILITY FOR ACTING CONTRARY

TO ANTI DISCRIMINATION STATUTES BY

VIRTUE OF THE ELEVENTH

REVIT MEMRI Es ccccsccccccceccscncdnsecncencanneuctnns 21

SG is icc vdanecvnsisnvecasccasscasauiennmeee 24

TABLE OF AUTHORITIES

PAGE

Cases

Alcoa v U.S.E.P.A., 663 F.2d 499 (4th Circuit,

Saha nlsaccraskaciaesavavbbebsashsaieesdvere ssaias 10

C.A.B. v Carefree Travel, 513 F.2d 375 (2nd

REINS RIES taste ED Nee ne 10

Calderon v Waco Lighthouse, 630 F.2d 352 (5th

i eee ee yl ret osishesssdeskctraeveens 10

Campbell v U.S.D.C., 501 F.2d 196 (9th Circuit,

Es Pa eine SPREE, AQ ae pt ee i]

Chandler v Judicial Council of the Tenth Circuit,

Es bs ced ccneacensakaassacddadeneses 16

Coolidge v Schooner, 637 F.2d 1321 (9th Circuit,

NE AUR IG SLL aa ea suh ares b dnb tak sauseagaeccsvsenaneue g

Crowell v Benson, 285 U.S. 22 (1932) .............00005 19

Duryea v Northwestern, 602 F.2d 809 (8th Circuit,

ee ed dads cous bcareasexbeoeeas seis 10

Edelman v Jordan, 415 U.S. 651 (1974) ................ 22

Ex Parte Young, 209 U.S. 123 (1908) ................... 22

Fitzpatrick v Bitzer, 427 U.S. 445 (1976)............... 23

Fullilove v Klutznick, 448 U.S. 448 (1980).............. 23

Glidden v Zdanok, 370 U.S. 530 (1962).............0005 11,12,13

Goldberg v Kelly, 397 U.S. 254 (1970)...............04. 19

Haines v Kerner, 404 U.S. 519 (1919)................... 4,19

Hutto v Finney, 437 U.S. 678 (1978)...............00005 23

La Buy v Howes Leather, 352 U.S. 249 (1957)......... 11,18

Mathew v Eldridge, 424 U.S. 319 (1975) ............... 19

Mathew v Weber, 423 U.S. 261 (1976)............0.000 12,19

Vii

PAGE

Milliken v Bradley, 433 U.S. 267 (1977) ...........0008. 22

Mississippi v Arkansas, 415 U.S. 289 (1973) ........... 9

Moran v Morris, 665 F.2d 900 (9th Circuit, 1981) .... i)

Morrisey v Brewer, 408 U.S. 471,81 (1972)............ 19

Muhich v Allen, 603 F.2d 1247 (7th Circuit, 1979).... 10

Northern Pipeline v Marathon Pipeline, 102 S.Ct.

Eb idin's savehirxnnckrudssadestepioknavecoakhensds 11,13,15

Ohio v Kentucky, 444 U.S. 335 (1980) ..............000. g

Orpiano v Johnson, 687 F.2d 44 (1982).............0008 10

Quern v Jordan, 440 U.S. 332 (1979) ........c0cccsceees 29

Scheuer v Rhodes, 416 U.S. 232 (1974)...............4. 22

Shuttlesworth v Birmingham, 394 U.S. 147 (1969).... 16,19

Soos v Perth Amboy & N.J. Division on Civil Rights

No. A-2986-78 Ap. Div. N.J.........scccssessesseeeees 22

U.S. v Lieberman, 608 F.2d 889 (1st Circuit, 1979)... 10

U.S. v Miller, 609 F.2d 336 (8th Circuit, 1979)........ 10

U.S. v Raddatz, 447 U.S. 667 (1980)............. 3,9,12,13,15,18

U.S. v Will, 449 U.S. 200 (1980)..............ccee eee eee 21

Wingo v Wedding, 418 U.S. 461 (1974).........c000000 3,12

Constitutional Provisions and Statutes

U.S. Constitution

Teese sinc nanoe henusiddeakeandecaunen 8,11,14,15,21

Article III Section 2 ..............ceeee00: i,2,3,7,8,11,12,13,14,

15,16, 18,19,21

Oe ous cs ccandncuvhateviadscenssces i,2,4

ey I I os cused cca pundabivensexeasreas i,2,22

U.S. Const. Amend. XIII...... pabaiapaesadsesnennticts 4

SAR, OIC TEEY bo cdaksscatatncutssstecnvancss 2,4,23

Civil Rights Act of 1964

Title VI, 42 U.S.C. $2000d .........ccccccccoseccccsess 4,22,23

Viii

PAGE

Title VEE, 42 U.S.C. GR000e ....ccccscccccsssccccsceses 4,23

A Dierks BE onioecacocserstiicisisseseeanereel 4

Be a I os cindasovacinssavisaseasiceuhaneersoue 4

OE iB. BF cr enccoveccustnsapsasdscamieueanels 4

OE UDG Be viciscndesvviesicntsnasunuaaoaeuae 4

SU Bike IE oa kicnn couiccvececntncassedeadeipneaeen i,2,3,5,10

DG, FE i abi ccsssnecdrdcdessaatiaasoneniecseeaaen 22

SB 3G. SHE + iiss ccna 22

SD. UBiG.. SB SRE) sv cstiscccciccerniventdcoassaeea 2

Fh, Cay. Fe vs encccsiiveniviescrpunisigeens 5,6,20

Pte GW. Be OD cece ciddvanciatcievaavenssuuabapeeanenuan 6,20

PRAT. GO vvcvnsdccducccevsndaracssnsquvbianiecsaabaaaie 21

New Jersey Law Against Discrimination

(Tidie 10:5 at gan. N.J.BA.) cccvcvisesscciccsresaccncics 14

S.Bap. Me. GPG: caccccscvcsncccavesncscsncsntsrassiensin 10

BRB. Rem. No. O6-1GGD ...0cscscccicccvsesccccceresesscses 10

U.S. v Raddatz: Judicial Economy et the Expense of

Constitutional Guarantees Brooklyn Law Review,

— Vol. 47:559, 1981 _ E. Weisfelner................. 15

Article III Limits on Article I Courts Columbia Law

Review, Vol. 80:560, — 1980 by L. Finley........... 14,15,16

Article III Constraints & the Expanding Civil

Jurisdiction of Federal Magistrates: Yale Law

Review Journal, Vol. 88, No. 5 April 1979 — by

Te, TIN oan cnntsncenasccuragucditesbeamesciden 17

1 Records of the Federal Convention 124 (M.

Wessel, TG WORD es cis sncccauesdeispelscdchansorans 16

U.S. Magistrates: helping district courts with heavy

caseloads. Judicature, May 1981, Vol. 64 No. 10

by Puro, Goldman & Singer......... bccevadubecshaiine 17

Wright & Miller, Fed. R. of Civ. Proc...............065 20

Moore’s, Fed. R. of Civ. Proc...........cceeeeeeeeeeeeees 20

IN THE

Supreme Court of the united States

OCTOBER TERM, 1982

EUGENE S. NEUFELD,

Petitioner,

-VS.—

BRUCE BAMBROUGH, PRESIDENT, COMPUSCAN, INC., et al.

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Peitioner prays that a writ of certiorari issue to review the

Judgment Order of the United States Court of Appeals for the

Third Circuit.

Opinions Below

A memorandum order (Appendix B, A-3) of the United States

District Court for New Jersey was filed on Feb. 28, 1980,

adopting a magistrates Report and Recommendation.

No written opinion was rendered by the United States Court

of Appeals for the Third Circuit.

The Report and Recommendation appears at Appendix C,

A-6.

Jurisdiction

The judgment of the Court of Appeals for the Third Circuit

was entered August 4, 1982 (A-1). An order denying a petition

for rehearing en banc was filed on October 14, 1982 (A-49). An

order extending the time in which to file a petition for a writ of

certiorari to and including March 13, 1983, was signed on De-

cember 21, 1982. The jurisdiction of this Court is invoked

pursuant to 28U.S.C.§1254 (1).

Constitutional and Statutory Provisions Involved

The Fifth Amendment to the Constitution of the United

States provides,

“No person shall . . . be deprived of life, liberty, or

property, without due process of law. . . .”

Article III, Sec. 2 of the Constitution of the United States

provides,

that the “Judicial Power shall extend to all Cases, in

Law and Equity, arising under . . . the laws of the

United States... .”

The Magistrate’s Act, 28USC§636(b)(1)(B) provides—

“A judge of the Court shall make a de novo determi-

nation of those portions of the report or specified

proposed findings or recommendations to which ob-

jection is made.”

The Eleventh Amendment of the Constitution of the United

States provides

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by citizens of another State, ... .

The Fourteenth Amendment of the Constitution provides

Section 5. The Congress shall have power to enforce,

by appropriate legislation, the provision of this article.

All other referenced statutes appear in Appendix 0@A-242

STATEMENT OF THE CASE

There is an alarming tendency in the Federal Judicial system

to relegate pro se litigants and others who bring certain kinds of

disfavored claims to a perceived second class system of justice:

their cases are referred in a wholesale fashion to magistrates,

who are not Article III judges, and the district judges fail to

perfom the sort of thorough and independent de novo review

that is statutorily required by the magistrates Act, 28 U.S.C.

§636 (b)(1)(B), and constitutionally mandated by Article III, see

U.S. v Raddatz, 447 U.S. 667(1980) and Wingo v Wedding, 418

U.S. 461(1974). The inadequate attention paid by judges to

certain classes of litigants distorts the purpose and integrity of

the judiciary and creates a perception that the courts do not

dispense justice to those disfavored groups who may most need

the thoughtful attention of a fully qualified, independent Article

Ill judge.

Petitioner Neufeld is one of thousands of such pro se civil

rights litigants who has been railroaded through the Article II]

courts without receiving adequate attention from an Article III

judge.

Petitioner sought the help of the courts to redress violations

of his rights arising out of his retaliatory discharge by his em-

ployer, Respondent Compuscan. Petitioner, who was employed

by Compuscan as a manager, was fired when he objected to

instructions that he treat minority workers more leniently than

others in terms of perfurmance standards so that Compuscan

could avoid civil rights complaints (A-187). Two minority work-

ers did file complaints with the New Jersey Division on Civil

Rights and the Equal Employment Opportunity Commission

(E.E.O.C.) naming Compuscan and petitioner as defendants

(A-188). Petitioner was never served with these complaints nor

was he otherwise notified of the actions against him (A-191). The

attorneys who responded to the complaints purported to repre-

sent both Compuscan and petitioner, although they had never

contacted petitioner and petitioner did not authorize them to

represent him (A-191,250). Compuscan settled with the com-

plainants, and the terms of the settlement placed the blame on

petitioner and adversely affected his employment while giving

pay raises to the complainants (A-160).

Petitioner attempted to file his own complaint, alleging re-

verse discrimination, with the New Jersey Division on Civil

Rights (A-205). In plain contravention of their regulations that

require them to accept and investigte all complaints, this agency

refused to allow petitioner even to file a complaint (A-246,7).

Petitioner then sought relief from the EEOC, and, acting with-

out an attorney, followed erroneous instructions from a staff

member about the timing of filing his complaint. As a result of

this erroneous information, petitioner's complaint was dismissed

filed out-of-time (A-178-80).

Petitioner, acting pro se, then filed a complaint and an

amended complaint by way of right prior to expiration of 20 days

or a responsive answer, in the District Court for the District of

New Jersey against Compuscan, its president, the New Jersey

Division on Civil Rights, the Attorneys who had represented

him without authorization, and other defendants, see Amended

Complaint at (A-163).

The amended complaint alleged violations of petitioners rights

under Title VII, 42 U.S.C. §2000 (e); Title VI, 42 U.S.C.

§2000(d); 42 U.S.C. §§1981, 1983, 1985 & 1986, and Violations

of the Fifth, Thirteenth and Fourteenth Amendments. Due

process, equal protection and equal rights violations and color/

race/religion discrimination, and Deprivation of Rights under

color of State Law, Conspiracy to interfere with Civil Rights and

Neglect to prevent Conspiracy to interfere with Civil Rights (A-

167). Although inarticulate as pro se complaints often are under

the liberal pleading standards of Haines v Kerner, 404 U.S.

519(1919) the complaint could also be construed as stating pen-

dant state law-based claims for retaliatory and unjust termina-

tion, tortuous interference with employment and for the state

civil rights agency's failure to adhere to its own regulations.

Several defendants filed motions to dismiss pursuant to

F.R.Civ.P. 12(b)(6). Without his consent the district judge re-

ferred petitioner's case to a magistrate for disposition pursuant

to 28 U.S.C. §636 (b)(1)(B) and Local Court Rule 40. The mag-

istrate held a hearing, purportedly only as to the motions brought

by the state defendants. She advised petitioner that he did not

need to address issues raised by other defendants.’ At this

hearing the magistrate denied petitioner's request for clarifica-

tion of the pending motion to dismiss.* She refused to offer the

pro se petitioner any guidance better to enable him to under-

stand or address the matters confronting him.

After this hearing other defendants filed Rule 12 (b)(6) and

12(c) motions, and petitioner filed opposition papers and made

repeated requests for leave to amend his complaint. These

requests were all denied, despite the magistrate’s obligation

to liberally construe the pro se pleadings and offer assistance in

framing them or presenting them to the court. In contradistinc-

tion to the harsh and unhelpful way the magistrate treated the

pro se plaintiff, she suggested certain arguments to the state

defendants, such as an Eleventh Amendment immunity argu-

' THE COURT: “All right Mr. Neufeld, I realize that you're only prepared

on the State's case, and we will have to renew this on another occasion to give

you an opportunity to address yourself to the other matters, but I would like

to hear you on the State's case, Mr. Neufeld, so that it won't be necessary for

the State to send its attorney back.”

(Transcript of Feb. 13, 1979, Appendix at, A-132).

* MR. NEUFELD: I would like to know if there would be a clarification as

to the 28 U.S.C.§636 and Rule 40 of the local court.

THE COURT: What is that?

MR. NEUFELD: Concerning motions to dismiss and the authorities of the

Magistrate because I think the Fifth Circuit had a ruling —.

THE COURT: This is the Third Circuit and this matter has been referred to

me and I don’t think that you have much room to question it, but the rules

and the statutes do give you your directions for objecting to the report and

recommendation that wil] be made, and you will follow these rules and these

statutes.

THE COURT: I do not at any dime advise counsel or litigants as to the law,

nor do I clarify the law for counsel) or litigants. (A-97).

ment, and invited them to supplement their pleadings and

briefs.°

Without notifiying the pro se plaintiff, the magistrate con-

verted the pending 12 (b)(6) motions to Rule 56 motions for

summary judgment,‘ and on January 14, 1980 issued a report

recommending that summary judgment be entered against pe-

titioner on all counts (A-6). The magistrate’s report contains

numerous errors of fact, totally unsupported by the record.

Moreover, at least two of the magistrate’s legal conclusions have

been overruled by this court, and on other matters, such as her

refusal to accept pendant jurisdiction over the related state

claims or to construe the pro se plaintiff's allegations liberally,

her conclusions are contradicted by precedents of this court.

On February 11, 1980, petitioner filed timely objections to

the magistrate’s report and also to the entry of summary judg-

ment without notice that 12(b)(6) motions would be treated as

Rule 56 motions. Petitioner twice requested a de novo deter-

mination and asked for an opportunity to submit additional

factual material in support of his objections (A-53 to 68). The

district court scheduled a hearing on the report and objections,

for February 25, 1980, but cancelled it without notice. Conse-

quently, petitioner has never appeared before an Article III trial

judge.

*» THE COURT: Now, the issues of immunity are not really contained in

your brief in any detail, Mr. Gorrell, isn't that correct? (A-103)

THE COURT: Well, I do think that if you intend to supplement your brief,

and raise these issues, as I certainly think they should be raised, you should

submit a supplementary brief — we certainly want all of the issues disposed

of at one time. That is, the issues that would ordinarily be made in the Rule

12 motions. — if you're talking about immunity under the Eleventh Amend-

ment, as you may be, for some of these named defendants, I would appreciate

having briefs on that — if you're using the Eleventh Amendment, you ought

to dispose of that issue at this time. Let's put it all together instead of ticking

it off a little now and a little later” (Transcript Feb. 13, 1979 @ A-104-0).

‘In an AFFIDAVIT to the Magistrate Requesting the Status of the Motion

to Dismiss, petitioner received no response from the Magistrate - Appendix

@ page A-69“3. In the Court's Discretion if the 12(b)(6) and 12(c) Motions are

construed to be F.R.C.P.56 then several AFFIDAVITS OF FACT would be

necessary to support Plaintiff's Opposition.”

The district judge filed an order on February 28, 1980, adopt-

ing the Magistrate's Report, “for the reasons stated therein,”

(A-3). In plain contravention of his statutory and constitutional

obligation to make a de novo determination of the magistrate’s

findings, the judge indicated that he had examined only the

magistrate’s report and the objections thereto. He did not ex-

amine the amended complaint or other pleadings, the briefs,

the record, opposing affidavits, the transcript, or records of the

company submitted by petitioner or documents submitted by

the State. Thus, it is evident that the judge did not perform a

de novo record review.

Petitioner filed a timely notice of appeal to the U.S. Court of

Appeals for the Third Circuit challenging the failure of the court

below to perform a de novo review, objecting to his failure to

have received the adequate attention of an Article III judge,

and to the entry of summary judgment without notice. He also

challenged the numerous legal errors in the magistrate’s conclu-

sion. When the court of Appeals denied petitioner's request for

oral argument, he wrote to the court to point out that in forty-

six months of litigation in the Article II] Federal Courts, he had

yet to appear before or receive the adequate attention of an

Article III judge. By telephone, petitioner was then notified

that he would have 15 minutes of argument time two days

hence, on July 23, 1982. It was evident at the argument, how-

ever, that the opportunity to present a statement was a pro

forma attempt to palliate petitioner's desire to receive the atten-

tion of an Article III judge. Almost immediately thereafter, on

August 4, 1982, the court of Appeals affirmed the lower court

by judgment order, without opinion (A-1). The Court of Appeals

also denied, without opinion, petitioner's motion for rehearing

(October 14, 1982 A-49).

Concerned with his failure to receive, from any Article III

judge, so much as a statement of reasons for denying his relief,

on January 10, 1983, petitioner moved this court to order the

Court of Appeals to issue an opinion. The motion was denied on

January 11, 1983 (A-47).

REASONS FOR GRANTING THE WRIT

1. THE DISTRICT COURT'S FAILURE TO REVIEW

ALL THE MATERIAL NECESSARY TO MAKE A

DE NOVO DETERMINATION CONFLICTS WITH

STANDARDS ADOPTED BY THIS COURT AND BY

OTHER CIRCUITS, AND DOES NOT COMPORT

WITH THE FEDERAL MAGISTRATE ACT OR WITH

ARTICLE III.

This case presents an important opportunity to define the

minimum standards for a constitutionally adequate adoption of

an Article I Court's Report and Recommendation since the

increasing use of Magistrates does not remain unquestioned as

to the evasiveness of Article III protection. The Federal Magis-

trate’s Act gave petitioner the right to a de novo determination

of contested issues by a judge of the District Court. Such de

novo review is statutorily mandated upon timely filing of objec-

tions, as is the case herein. A de novo determination means an

independent determination unprejudiced by the magistrate’s

suggested findings.

The district judge failed to examine the amended complaint,

the complaint or the pleadings. The judge did not review the

motions, amended motions or look at the briefs or the govern-

ment's supplementary brief, or petitioner's opposing, respon-

sive papers. The judge did not inspect the record. He did not

consider conflicting affidavits, or numerous materials and docu-

ments submitted by the government defendants and petitioner.

Evidence obtained pursuant to the Freedom of Information Act

from the E.E.O.C. and documents from the Security Exchange

Commission on Compuscan, exist in the record. Thus by failing

to review these items the judge could not possibly have made

an independent de novo assessment of the case. It is obvious

that he simply rubber stamped the conclusions of the magis-

trate. This sort of review is plainly inadequate to satisfy the

statutory requirement of a de novo determination under the

principles set down in prior Supreme Court cases and in opin-

ions from other Circuit courts.

The Third Circuit's Affirmation of the District Court's adop-

tion without de novo review of the Magistrate's Report, conflicts

with this Court's decision in U.S. v Raddatz, 447U.S.667(1980).

This Court held that the elements of a de novo determination

were present where —

“— the district court stated that it considered the

transcript of the hearing before the magistrate on the

motion to suppress, the parties proposed findings of

fact, conclusions of law, and supporting memoranda

and that it read the recommendation of the magistrate

and heard oral argument of counsel — ” id@672

In the instant matter this was not the case. The judge only

reviewed the report and recommendation and petitioner's ob-

jections (A-4). An example of an appropriate independent re-

view appears in Mississippi v Arkansas, 415U.S.289,291(1973).

In Mississippi, supra this Court reviewed the entire record, the

exceptions filed and the report and recommendation of a Special

Master, the latter report being analogous and parallel to the

Magistrate's Report in this matter. Moreover, in Ohio v Ken-

tucky, 444U.S.335,336(1980) this Court enlarged the scope of a

review to include hearings on exceptions filed to a Special

Master's Report.

Circuit courts are clear in stating the required elements for a

de novo determination of a magistrate’s report. In Coolidge v

Schooner, 637F2d1321,1327(9th, 1981) the Ninth Circuit held

that a judge must make it clear that he reviewed the record and

that he considered objections to findings of fact and conclusions

of law. The judge's role in the proceedings cannot appear to be

simply pro forma. That Circuit also requires the judge to have

available the record of proceedings before the magistrate for a

de novo determination to be made, see Moran v Morris,

665F2d900, 901 (9th, 1981) and that a de novo determination of

the facts and conclusions of law must be made, Campbell v

U.S.D.C., 501F2d196,206 (9th, 1974) c.d. 419U.S.879, (1974).

In the instant matter, as in Moran, supra @ 902, “This condition

was not met here.”

Proper standards are satisfied in the Seventh Circuit, when a

de novo review is made of the proceedings before a magistrate,

the findings, the recommendations and the objections, see

Muhich v Allen, 603F2d1247(7th, 1979). In U.S. v Miller,

609F 2d336,340(8th, 1979) the Eighth Circuit held that it must

be clear that the court reviewed the record and adopts findings

and recommendations of a magistrate, only after an independent

determination. That Court in Duryea v Northwestern,

602F2d809,810(8th, 1979) held a court's order to be deficient if

it did not indicate it had considered or adopted a magistrate’s

conclusions of law. The Second Circuit prohibits “rubber-stamp-

ing” of a magistrate’s report and requires examination of evi-

dence, depositions, affidavits, testimony, etc. see. C.A.B. v

Carefree Travel, 513F2d375,383 (2nd, 1975). The Fifth Circuit

requires district courts to review the transcript of proceedings

before a magistrate and to make a “de novo determination” of

the magistrate’s findings. Calderon v Waco Lighthouse, 630-

F2d352,356(5th, 1980). In U.S. wv Lieberman, 608F2d-

889,901(Ist, 1979) the First Circuit held that a “de novo deter-

mination” is made when there is argument on objections to

findings with the record before the presiding judge. The Fourth

Circuit holds that failure to review evidence presented to a

magistrate is reversible error, and remands for a de novo review

of factual objections raised, see Orpiano v Johnson,

687F2d44,48(4th, 1982). That Circuit holds that for satisfaction

of the requirements of the Magistrates Act 28U.S.C.§636(b)(1)(B)

a district judge must clearly indicate that he afforded the parties

a de novo determination, see Alcoa wv U.S.E.P.A.,

663F2d499,502(4th, 1981).

It is obvious that the Third Circuits’ affirmance of the adop-

tion of the magistrate’s report conflicts with the First, Second,

Fourth, Fifth, Seventh, Eighth and Ninth circuits. The legisla-

tive intent underlying 28U.S.C.§636(b) supports these numer-

ous aforementioned Court decisions that requires judges to

vigorously, conscientiously and thoroughly to review the record

before adopting a magistrate’s report. Such legislative intent

meant that dispositive motions were to be reviewed by a de

novo determination, when such matter was referred to a magis-

trate. See. S. Rep. No.94-625, p.6; H.R. Rep. No. 94-1609, p.8.

Congress was sensitive to Constitutional problems posed by

too great a delegation of a district judge's functions to non-

article III officers. Congress concluded that a meaningful re-

quirement for de novo review was necessary to avoid constitu-

tional infirmaties surrounding the use of magistrates.

By affirming the district judge's obviously inadequate review

of a magistrate’s report, the Third Circuit decisions stands in

contradiction to the standards adopted by the other Circuits.

The Supreme Court should accept this case in order to establish

that de novo review must be meaningful and real and thus to

clarify the standards for an adequate de novo review that satis-

fies the magistrate’s act.

2. ADOPTION OF A MAGISTRATE’S RECOMMENDED

DECISION WITHOUT AN INDEPENDENT DE NOVO

REVIEW BY AN ARTICLE III DISTRICT JUDGE

CONSTITUTES AN UNLAWFUL DELEGATION OF

JUDICIAL POWER TO A NON-ARTICLE Ill OFFICER.

This case offers a valuable occasion for the Supreme Court to

explain the criteria for a Constitutionally adequate de novo

determination by a district judge of a magistrate’s decision so

that the increasing use of a magistrate’s does not further erode

Article III.

This Court recently reemphasized in Northern Pipeline v

Marathon Pipeline, 102S.C.2858(1982) that the requirements of

Article III are to be strictly adhered to, and that the authority

and jurisdiction of non-Article III judges is therefore extremely

limited. As other past decisions of this Court indicate the use of

magistrates, non-Article III judges is unconstitutional unless an

Article III judge makes a de novo determination.

In LaBuy v Howes Leather Co., 352U.S.249(1957) where the

central concern of this Court's opinion was the danger of whole-

sale abdication of trial responsibility, (see 352U.S. @ 258-59,

concern with distinct Article III overtones) — this Court held

that neither congested dockets nor the duration of complexity of

an action will suffice to justify a master’s reference. Then Justice

Douglas dissenting in Glidden v Zdanok, 370U.S.530(1962) in-

dicated that Article I judges cannot sit or otherwise exercise

authority of Article III Courts. He expressed concern over the

qualification of non-Article III judges to exercise judicial power.

Following, Glidden, supra this Court in Wingo v Wedding,

418U.S.461(1974) found that while the Magistrate's Act empow-

ered magistrates to perform a preliminary review of habeus

corpus petitions and to formulate a recommendation as to

whether an evidentiary hearing should be held, the Act did not

authorize magistrates to conduct evidentiary hearings on habeus

corpus petitions or to submit recommendations to the referring

judge regardiny appropriate disposition. Later, although declin-

ing to reach constitutional issues, this Court in Mathews v

Weber, 423U.5.261,270-71(1976), concerning the “additional

duties” of a magistrate intimated that Article III was satisfied

because “[t]he authority and the responsibility . . . to make an

informed, final determination . . . remains with the judge.” In

U.S. v Raddatz, 447U.S.667(1980) this Court found that a dis-

trict judge’s reliance on a magistrate’s witness credibility deter-

mination in deciding a suppression motion did not violate Article

III and that the magistrate’s proposed findings and recommen-

dations were subject to de novo review by the district court,

which was free to rehear the evidence or to call for additional

evidence. Id. @ 676-7,681-83.

The obvious impart of these decisions is that the district

Court’s determination should be real and thorough — not a pro

forma rubber stamp. Otherwise, the district judge has actually

delegated his Article III authority to a non-Article III officer,

and has rendered illusory the requirement that Article III judges

exercise the Authority in Article III Courts. Justice Marshall

dissenting in Raddatz, supra @ 771 said. — “Vesting in the

district court the power of final adjudication is a meaningless

gesture where the district judge has no significant basis upon

which to render his final decision.” In this instant matter the

district judge just reviewed the magistrate’s Report and Rec-

ommendations and the filed objections (A-4). These alone pro-

vided no important basis for a decision because the judge

neglected to review the reord, see Summary of Pleadings, (A-

63). In such cases as the matter at bar the magistrate became

the de facto pro forma final adjudicator.

These procedures below failed to preserve the judicial inde-

pendence and thus the distribution of power under our Consti-

tutional system. They undermined the separation of powers

principle by vesting judicial power of a scope equal to a district

judge in a decision maker whose term of office and level of

compensation are controlled by Congress. As an illustration of

the dangers inherent in the practice of unscrutinized references,

there remain numerous questionable aspects of the magistrate’s

decision. The magistrate’s facts are unsupported by the record

and the magistrate’s rulings on the law are contrary to this

Court's holdings and to rulings in Circuit Courts. (see Reason 4,

pg. 18).

This Court sustained in U.S. v Raddatz, supra the use of

adjunct fact finders even in the adjudication of constitutional

rights—so long as those adjuncts were subject to sufficient con-

trol by an Article II] Court. Here the magistrate became the

judge, a complete substitute for the Article III Court. When

adjudicating questions of law and not having been subjected to

review by an Article III Court, the magistrate’s decision became

final. Thus, since there was an absence of the protective device

of a de novo judicial review, the procedures below cannot be

reconciled with Article III. Such utilization of an Article I officer

is an unwarranted encroachment upon the judicial power of the

United States, which the Constitution reserves for Article III

Courts, see Northern Pipeline, supra. Failure to provide a de

novo review in violation of the Magistrate Act is a grant of

jurisdiction to an Article I officer that cannot be sustained under

Article III constraints.

This Court should grant a writ of certiorari to decide what the

established practice is for an adequate constitutional de novo

determination of a magistrate’s report.

3. A LITIGANT WHO HAS INVOKED THE POWER OF

AN ARTICLE I] COURT AND HAS NOT CONSENTED

TO REFERENCE TO A MAGISTRATE HAS A RIGHT

FOUNDED IN THE DUE PROCESS CLAUSE OF THE

FIFTH AMENDMENT AND IN ARTICLE III TO A DE

NOVO DETERMINATION AND OPINION STATING

REASONS FOR DENYING RELIEF UNDER AN

ARTICLE III JUDGE.

The integrity of the Article III judiciary and litigant’s right to

an Article III judge are threatened by a process under which

certain claims are repeatedly referred to magistrates and rou-

tinely disposed of without adequate review or opinions by Arti-

cle III judges.

Article III has two recognizable components, see Glidden v

Zdanok, supra. It protects the integrity, quality and independ-

ence of the judicial system and it also protects litigants by

insuring that they will have a highly qualified and independent

life-tenured judge decide their claims. Thus, Glidden, estab-

lished a litigant’s right to an Article III judge.®

ARTICLE III PROTECTIONS WERE REMOVED:

The Magistrate did not receive the power to proceed in this

Article III case directly from Congress, said jurisdiction was

vested in the District Court and transferred to the auxiliary

legislative court (Article I). This scheme of internal delegation

of judicial power presupposses supervision from the Article III

court at some stage of the proceedings. Therefore, the Magis-

trate’s Act permitted a non-Article III officer the exercise of

broad civil jurisdiction customarily reserved for Article III

courts. The transference of this power within the Article III

court structure, from the district judges to the magistrate’s

extended Congresses power to allocate jurisdictional compe-

5 “Article III Limits on Article I Courts:” Columbia L.R. Vol. 80:560, 1980,

by L. Finley.

* Col. L.R. 8:560, 1980 @ 570.

tency between federal forums.’ Such a procedure, the federal

practice herein,® constituted a court and judge in whom was

effectively vested the Judicial Power of the United States with-

out compliance with Article III of the Constitution. This inferior

court, possessing a full panoply of Judicial powers lacked the

tenure and salary protections Article II] requires. Deficient in

Article II] supervision and without constitutional protections

the magistrate still had valid Judicial authority and powers un-

distinguishable from those of Article III judges and courts.

Effective control of the proceedings was no longer with an

Article III judge.

ARTICLE Ill ADJUDICATION WAS ABSENT

Petitioner's appearance before the Court of Appeals was not

sufficient to satisfy the right to an Article III judge, because the

right is to have a real judge evaluate claims at the trial level.

Northern Pipeline, supra held that the availability of appellate

review before an Article III Court does not cure the Constitu-

tional defect inherent in having a non-Article III judge exercise

the initial decision making authority.

Requirements of Article III are a fundamental element of the

structure and constitutional role of the judiciary. Petitioner did

not select an alternative to judicial resolution because litigants

have no authority under the constitutional scheme to invest

non-Article III officers with Article III “judicial powers.” (see

Finley @ pg. 596). This case “arises under” Federal Law and is

within the Judicial Power Defined in Article III.° However, the -

proceedings below “— did not take place under the district

court’s total control and jurisdiction” see Raddatz, supra @ pg.

681 and there was no Article III de novo review. Constitution-

ally viable claims were in effect adjudicated by An Article I

7“U.S. v Raddatz”: Judicial Economy at the Expense of Constitutional

Guarantees. BKLYN.L.R. Vol. 47:559,1981, by E. Weisfelner

* i.e. absent Article III control and de novo review, on a wide spread basis.

* Article III, Section 2 of the Constitution provides that the “judicial Power

shall extend to all Cases, in Law and Equity, arising under — the laws of the

United States —”.

Court. The district judge did not find independently but ruled

on the magistrate’s reports for he relied on “the reasons stated

therein” (A-5) i.e. those of the magistrate for his ORDER. James

Madison recognized that appellate review of errors of law does

not alleviate the dangers of having a “dependent judge”. See 1

Records of the Federal convention 124 (M. Farrand ed. 1911)

This Court said in Chandler v Judicial Council of the Tenth

Circuit, 398U.S.74,84(1970), “There can be no disagreement

among us as to the imperative need for total and absolute

independence of judges in deciding cases or in any phase of the

decisional function.” (emphasis added).

Petitioner was denied an independent adjudicator, and the

appellate affirmation without opinion was inadequate. The threats

to the separation of powers and judicial integrity envisioned by

the Framers of Article III flow largely from control of judges’

subsestence and tenure, rather than from direct manipulation of

the law, appellate review is an inadequate corrective. (Columbia

Note, supra @ 592.)

THERE IS WIDESPREAD ROUTINE DELEGATION

The right of petitioner and hundreds of other pro se litigants

to an Article III judge was violated. The district judge did not

meaningfully review the magistrate’s findings, so he did not

exercise the scrutiny and authority of a judge —__he did not

perform a searching enough analysis to have protected either

petitioner's right or the interest of the judicial system.

This Court should take JUDICIAL NOTICE of District Court

Records for the District of New Jersey, pursuant to Shuttles-

worth v Birmingham, 394U.S.147, 157(1969). There is a pattern

that petitioner has uncovered of wholesale delegation of pro se

cases to magistrates without sufficient de novo review. Not only

does said practice violate the Article II] and due process rights

of the litigants thus subjected to a second class system of justice,

but it also threatens the integrity of the Article III judicial

system. Widespread delegation removes authority and control

from the Article III judges, and it also creates a public percep-

tion that less prestigious, less qualified, less independent offi-

cials are deciding all-important questions of rights.”

In the fall of 1982 petitioner learned of similarly treated pro

se litigants in the District of New Jersey. From a personal study

of over 300 Orders (signed by 14 judges) adopting Reports &

Recommendations (filed by 5 different magistrates), over a pe-

riod of 6 years, review of Court records indicates numerous

questionable reference practices.'' These 300 assignments and

referrals, to magistrates, indicate a marked tendency to dispose

of pro se civil rights complaints efficiently and expeditiously by

widespread routine delegation which constitutes a wholesale

violation of the Constitutional and Statutory claims petitioner

presents to this Court.

In “The U.S. Magistrates: helping district courts with heavy

caseloads” (Judicature May 1981 Vol 64/No.10), authors Puro,

Goldman and Singer, present a totally different picture of mag-

istrate usage. The assignments and referrals and handling of pro

” Article III Constraints and the Expanding Civil Jurisdiction of Federal

Magistrates: Yale Law Journal, Vol. 88, No.5, April 1979, by R.H. Kraakman.

(Discussion of the perception — systemic integrity problems presented by

wholesale delegation. )

" Reference practices:

1.) The litigants were predominately pro se civil rights complainants almost

invariably dismissed by the Judges’ adoption of a magistrate’s Report

recommending said dismissal (or other dispositive disposition against the

complainant).

2.) Less than 150 of the Orders conformed with the statutorily mandated

Article III de novo review required by the Magistrate's Art.

3.) More than 150 of the Orders were defective and did not indicate that the

Judge granted the complainant the required Article III review (as in this

case).

4.) The instant presiding magistrate filed more than half of the 300 Reports

(more than the total filed by the other four magistrates).

5.) The instant presiding judge adopted over one hundred of the reports

(more than any two combined judges).

6.) Together with a second judge, the presiding magistrate and judge pro-

cessed via dismissal or summary judgment i.e. through dispossitive mo-

tions half of these referred pro se cases.

7.) In only one out of five Orders did the presiding judge grant de novo review

— all the others were de facto pro forma rubber stamps, as this case.

8.) A small percentage of the Reports filed concerned a combination of non-

pro se cases, settlements, withdrawals or trials after filing of the Report.

se cases by the Southern and Eastern Districts of New York in

the Second Circuit, are apparently not as obviously questionable

(if questionable at all) as in the District of New Jersey. Magis-

trates apparently do not function as de facto judges in the

Second Circuit.

Petitioner is only one representative victim of a practice"! that

circumvents the requirements of the Magistrates Act, and chal-

lenges the integrity of the Article II] court — by Article I

trespassing on Article III judicial domian. The statutorilly man-

dated de novo determination was Congress's safeguard for Arti-

cle III control over the magistrate’s proceedings.

No decision of this Court has ever upheld the vesting of

Article III Power in a Court lacking Article III Tenure and

salary protections. Such uncontrolled and continued use of mag-

istrates as experienced and reported herein would destroy Arti-

cle III. As two Justices of this Court have recently stated,

“Congress has never attempted to displace Article III courts

when laws of nationwide applicability were involved, and noth-

ing in our prior decisions suggest that it may constitutionally do

so.” Raddatz, supra @ 706, (dissenting opinion of Marshall, J.,

joined by Brennan, J.)

A writ of certiorari should be granted to determine whether a

litigant has a constitutional right to a de novo review and an

opinion by an Article III Court of a Magistrate’s Recommenda-

tions.

4. ROUTINE NON-CONSENSUAL REFERALS OF PRO

SE CASES TO MAGISTRATES FOR DISPOSITIONS

THAT EFFECTIVELY ARE FINAL VIOLATES THE

DUE PROCESS CLAUSE OF THE FIFTH

AMENDMENT AND ARTICLE It.

This case further presents an issue of public importance re-

garding the second class system of justice to which pro se

litigants in the federal courts are subjected. The district court's

This Court said in La Buy, supra- that references amount to little less

than an abdication of the judicial function and that the practice of making

references does not commend itself and should seldom be made, and if made

at all only when unusual circumstances exist. @ 352 U.S.249,258(1957)

docket was kept moving and it’s administrative efficiency im-

proved by this and similar pro se references to the magistrate.

Judicial economy was had only at the expense of the pro se

complainant's constitutional guarantees. Such proceedings, as

petitioner experienced, lacked the competency of an Article III

Court, because the judge did not maintain total control nor did

the judge supervise the magistrate. Hence, by relinquishing his

superior judicial qualifications to those of an Article I Court —

the judge deprived petitioner of due process (absence of Article

III officer) during the proceedings and then again in failing to

grant a de novo review.

This Court, in Morrisey v Brewer, 408U.S.471,81

(1972) said that.

“Due process is flexible and calls for such procedural

protections as the particular situation demands.”

Resolution here involves the constitutional sufficiency of con-

formance to the Magistrate's Act and the entitlement to adjudi-

cation by an Article III Court.

This Court enunciated a three part balancing test for Proce-

dural Due Process within the meaning of the 5th and 14th

Amendments. Both Mathew wv Eldridge, 424U.S. 319,332-5

(1975) and Goldberg v Kelly 397U.S. @ 263-71 defines the

private interest affected, the risk of erroneous deprivation thru

procedures used and the Government's interest. The Article I

substitute, provided by the Court did not possess parallel judi-

cial knowledge or experience of a Federal Constitutional Judge

and lacking such qualities failed to satisfactorily replace the

Court. As a result in this matter, petitioner was treated unfairly

by the magistrate, because petitioner did not receive a liberal

construction of his pleadings as required by Haines v Kerner,

404US519,520 (1919) for if he had been he would not have been

subjected to summary judgment. Hence, petitioners private

interest in adjudication has been harmed.

In Crowell & Benson, 285U.S.22(1932) this Court indicated

that Congress can delegate fact finding to non-article III officers

under the necessary and proper clause, not that the clause

permits broad delegation of Article II] decision making power

to non-article III tribunals.

This Court should take further Judicial Notice, pursuant to

Shuttlesworth, supra of the Court Records for the District of

New Jersey. The errors of fact in the Magistrate's Report of this

case, are similarly duplicated in numerous other pro-se Reports

filed by the Magistrate, i.e. — petitioner's district court dis-

missal by an Order adopting a Report unsupported in fact by

the Record is not a singular occurrence. Therefore, the proce-

dure used in assigning the magistrate resulted in presentation

of errors of fact prejudicing the outcome unfavorably for peti-

tioner.

As a result of the harsh treatment received from the magis-

trate and the inadequate control and review by the district

judge, petitioner was also adversely affected in a concrete way

by numerous errors of procedure and law. Some of the magis-

trate’s questionable procedural and legal conclusions follow.

First, the magistrate ruled that the State government defend-

ants are not suable and that they are officially immunized from

injunctive action. This legal conclusion alone is of such deci-

sional significance for this Court that it appears as the last

question for certiorari and is discussed in the next, fifth reason

for granting the writ.

Procedurally the magistrate failed to reschedule or permit

argument on the motions submitted subsequent to and not

addressed on Feb. 13, 1979. Furthermore the magistrate avoided

conforming with authoritative precedent in notifying petitioner

of the Rule 12(b)(6) to Rule 56 conversions.” The magistrate

then erroneously stated that respondents moved for summary

judgment (A-6). Again another improper instance was the mag-

istrates ruling contrary to State Law on the simple requirement

and right to FILE a complaint, which is specified in case state

“ Wright & Miller, Vol. 5, ch.4, 1366; Moore's Vol. 2A, 12.01(9) pg. 2215;

12.09 pg. 2302 — “to avoid taking a party by surprise” he is entitled to notice

of conversion by the Court of F.R.C.P. 12(b)(6) to a F.R.C.P. 56 motion, i.e.

motion to dismiss for failure to state a claim to a summary judgment motion.

law. These are but a few of the legal errors and conclusions

based either upon a confused or totally misundertood interpre-

tation of petitioner's allegations in his pleadings. These now

coupled, with misrepresentations injected into the record by

respondents, such as the denials of unauthorized appearances

(A-249) further compounded a complex case. Finally, in two

F.R.A.P. 28(j)" submissions to the Third Circuit Court of Ap-

peals petitioner listed many Circuits and several decisions of

this Court that resolved legal issues in petitioners favor. This

Court should recognize that these dubious legal rulings of the

magistrate are another compelling reason to remand to the

district judge for a de novo determination.

The vital importance of guarding the integrity of the judiciary

article of our Constitution needs no elaboration. The authors of

the Constitution recognized the perils implicit in the vast pow-

ers of the federal government. Congress did not mean nor have

an interest when legislating on the Magistrate’s Act to do away

with Article III integrity by replacement. As this Court empha-

sized, in United States v Will, 449U.S.200(1980), conformity

with Article III is basic to our system of government and to our

freedom. The government's interest is in maintaining Article III

integrity.

This Court should grant a writ of certiorari to determine if

when pro se claims arising under Article III are non-consen-

sually referred to and processed by an Article I officer absent a

judge and his safeguard de novo review ____ has due process

been denied.

5. STATE OFFICIALS ARE NOT IMMUNIZED FROM

LIABILITY FOR ACTING CONTRARY TO ANTI-

DISCRIMINATION STATUTES BY VIRTUE OF THE

ELEVENTH AMENDMENT

The Amended Complaint alleges that the state officials in-

flicted constitutional harm to petitioner. First by negligence and

carelessness with a disregard to his rights, they FAILED to

” F.R.A. P.28(j) is “Citations of Supplemental Authorities.”

NOTIFY or SERVE him in two State Discrimination com-

plaints, wherein he was one of two or three named respondents

(A-228). The officials accepted unauthorized attorneys as sub-

mitting him to jurisdiction, assuming they represented peti-

tioner (A-158 to 160). These acts (two cases) were prior to Feb.

17, 1978 and included discovery efforts (A-203). However, when

petitioner learned of the action, on and after Feb. 17, 1978, the

state officials acted in bad faith. They further violated their

Rules of Practice and Procedure (A-247,8) in not only continuing

to conceal and refusing to send NOTICES of settlements, inves-

tigations and closing of said complaints to petitioner, but they

intentionally refused the ministerial duty to FILE petitioners

complaint (A-205). Said FILING being mandatory by statute

and case law."

The magistrate’s granting of blanket Eleventh Amendment

Immunity was a threefold error. First it conflicted with this

Court's holding in Ex Parte Young, 209U.S.123(1908); Edelman

v Jordan, 415U.S.651(1974); Quern v Jordan, 440U.S.332(1979)

and Miliken v Bradley, 433U.S.267,289(1977). Where this Court

held it to be consistent with the Eleventh Amendment that a

Federal Court could enjoin state officials to conform their future

conduct to the requirements of federal law even with ancillary

effect on the state treasury. Petitioner had filed suit seeking

declaratory and injunctive relief pursuant to 28U.S.C.§2201 &

2202 (A-170, 236-9), and was erroneously denied same.

Second, granting a state official individual immunity con-

flicted with Scheuer v Rhodes, 416U.S.232,237(1974) which

concerned personal damage awards for the consequences of a

state officer's individual conduct and held that individual liabil-

ity is not shielded by the Eleventh Amendment. (Records of the

District of New Jersey show that the Division and State agencies

are not granted immunity in instances like this.)

Third, and perhaps of first impression on these issues. Peti-

tioner filed a private suit under Title VI, 42U.S.C.§2000d,et-

“ See N.J.S.A.10:5-1 et-seq. The New Jersey Law Against Discrimination

@ A-2A456 & Rules of Practice & Procedure A-247,8.

Also, see Soos v Perth Amboy & N.J. Division on Civil Rights, @ A-254 and

cases listed at same.

seq. (A-167-9), claiming he was barred by the Division on Civil

Rights, because of his race/religion, from being part of ana

enjoying certain state liberty rights (A-205,8). This was done

after obtaining no response from filing for administrative Title

VI relief (A-180, 181).

Justice Stevens, dissenting in Fullilove wv Klutznick,

448U.S.448(1980) said that “Title VI unequivocally and compre-

hensively prohibits discrimination on the basis of race in any

program or activity receiving federal financial assistance.” The

Division and State received such assistance. This Court in Fi-

tzpatrick v Bitzer, 427U.S.445(1976) @ 453 n.9 stated —

“(there is no dispute that in enacting the 1972

Amendment to Title VII to extend coverage to the

States as employers, Congress exercised, its power

under section 5 of the Fourteenth Amendment.”

Then, in Hutto v Finley, 437U.S.678,702(1978) Justice Bren-

nan concurring, interpreted Fitzpatrick, supra as enumerating

the enforcement provisions of the 14th Amendment as a limita-

tion on the Eleventh Amendment Immunity, Fitzpatrick, supra

held. “Congress may in determining what is “appropriate legis-

lation” for the purpose of enforcing the provisions of the 14th

Amendment, provide for private suits against states or state

officials which are constitutionally impermissible in other con-

text.” Fitzpatrick, @ pg. 456.

The magistrate failed to recognize that petitioners Title VI

claim removed the state’s official Immunity, as case law prece-

dent shows.

This Court should grant a writ of certiorari to determine if the

Eleventh Amendment provides immunity for state officials who

violate their own civil rights statutes and also to determine if a

private Title VI suit abrogates a state's official immunity, for

state officials, through section 5 of the 14th Amendment.

Conclusion

For the foregoing reasons, petitioner requests this Court to

issue its writ of certiorari to the United States Court of Appeals

for the Third Circuit.

Respectfully submitted,

Eugene S. Neufeld, Pro Se

200 West 86 St.

New York, N.Y. 10024

(212) 362-5755

TABLE OF CONTENTS TO APPENDIX

PAGE

APPENDIX A

Order of the United States

Court of Appeals for the Third

CEBOGAE cccceccccccceceecesetas ae

APPENDIX B

Memorandum-Order of the United

States District Court for

New J@rsey ccccccccccccscccccces AM B

APPENDIX C

Magistrate's Report and

Recommendation .....eeeeeeeeeee Am 6

APPENDIX D

Order Extending Time to File

Petition for Writ of

Gemtiorari ccccovcccoesesescécce Bae

APPENDIX E

Order Denying Third Circuit

Opinion eeoeeeeeeee eee eee ee eeeees A-47

APPENDIX F

Order Denying Petition for

Rehearing En Banc .....+eeeee0++ Anm49

APPENDIX G

Petitioner's Letter for

DISCOVEFY ccccccccccccccccccccs AMS

APPENDIX H

Objections (Partial) to Report

and Recommendation and

ALZIGAViIt cecccceccoscceesccess Mae

PAGE

APPENDIX J

Motion-Objections to Recommen-

dations and Findings, Request

for Argument, Time Extension

and Statement in Lieu of Brief

of Request for De Novo Review . A-65

APPENDIX K

Affidavit to Magistrate

Requesting Status of Motions

to Dismiss July 31, 1979 ...... A-69

APPENDIX L

Transcript of Proceedings Before

the Magistrate February 13,

BOTD cccccccccccccccccccccesecne AMT2

APPENDIX M

Affidavit of the American

Jewish Congress

Ostober 30, 1978 wccccccccsccee AM158

APPENDIX N

Amended Complaint and Jury

Demand oeneeieeneeneeeneeneneeneeeeeeee A-163

APPENDIX O

Relevant Federal Constitutional

Provisions and Statutes ......- A-241

APPENDIX P

Excerpts from Attorney Greenberg's

Brief and Oral Argument ....... A-249

APPENDIX

erth oy and Division

on Civil Rights A-2986-78

Sup. Court of N.J. Appellate

DIVISION cocccccccccccccceccccs AM2Zsl

A-1

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 80-1987

EUGENE S. NEUFELD,

Appellant

BRUCE BAMBROUGH, etc., et a

Filed. Aug 4.1982

SSS

On Appeal from the United States District

Court for the District of New Jersey C.A.

No. 78-2483

Argued July 23, 1982

Before: ADAMS and HIGGINBOTHAM, Circuit

Judges, and TEITELBAUM, District

Judge*

JUDGEMENT ORDER

After considering the contentions

raised by appellant, it is

ADJUDGED AND ORDERED that the

judgment of the district court be and is

hereby affirmed.

A-2

Each side to bear its own costs.

BY THE COURT,

Circuit Judge

ATTEST

Sally Mrvos, Clerk

Dated: Aug. 4, 1982

*Honorable Hubert I. Teitelbaum, United

States District Court for the Western

District of Pennsylvania, sitting by

designation.

A-3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

EUGENE S. NEUFELD,

Plaintiff,

Ve MEMORANDUM ORDER

BRUCE BAMBROUGH, et al,

Defendants. Civil Action No.

78-2483

Filed. Feb.2@ 198)

This matter was brought before the

court on the motions of the respective de-

fendants for judgment on the pleadings or

for a dismissal of the complaint for

failure to state a claim upon which relief

can be granted. The matter was referred

to Honorable Serena Perretti, United

States Magistrate, pursuant to 28 U.S.C. §

636(b)(1)(B). Judge perretti filed her

Report and Recommendation on January 14,

1980. Thereafter, plaintiff Eugene S.

Neufeld moved for an extension of time to

file objections to Judge Perretti's Re-

port and Recommendation. By order of

February 1, 1980 this court granted the

A-4

motion, extending plaintiff's time to ob-

ject from January 28, 1980 to Febraury 1l,

1980.

Plaintiff filed'his objections on

February 11, 1980, objecting to the

motions having been treated as summary

judgment motions and requesting additional

time to supplement his objections.

It appears from the voluminous

briefs, appendices and affidavits filed by

the plaintiff that Judge Perretti was more

than amply justified in treating the pend-

ding motions as motions for summary judg-

ment. Plaintiff's submissions extend far

beyond even the wide-ranging allegations

of his pleadings. See F.R. Civ.P. 12(b)

Considering the voluminous material

submitted by plaintiff and considered by

Judge Perretti, no interest would be

served by further extension of time to

submit additional material.

This court having reviewed the Report

anc Recommendation of Judge Perretti and

plaintiff's objection thereto,

IT IS, therefore, on this 27th day of

February 1980

ORDERED =

1. The Report and Recommendation of

Honorable Serena Perretti is hereby

adopted as the opinion of this court.

2. For the reasons stated therein,

summary judgment is hereby granted in

favor of all defendants and the amended

complaint of plaintiff is hereby dismissed

with prejudice and without costs.

~. . CURTIS MEANOR

a ee

Filed Feb. 28, 1980

A-6

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

EUGENE S. NEUFELD, ' Civil No. 78-2483

Report and Recom-

Plaintiff, mendation

Vv.

BRUCE BAMBROUGH, et al.,

Filed. Jan. 4, (980

Defendants.

INTRODUCTION

The operative facts alleged by

plaintiff are few and simple, yet they

have generated a multi defendant law suit

of international proportions, voluminous

pleadings and an assault upon every tech-

nical aspect of the proceedings. Plain-

tiff lost his employment and alleges that

he was the victim of racial discrimina-

tion. The various defendants have moved

for summary judgment, judgment on the

pleadings or dismissal for failure co

state a claim. Matters outside the plead-

ing have been presented, all motions have

been treated as for summary judgment. All

parties have been given reasonable

A-7

opportunity to present all material per-

tinent to such motion.

PLAINTIFF'S ALLEGATIONS

The verified amended complaint and

affidavits, documents and brief for

plaintiff in connection with this motion

reveal the following factual allegations

of plaintiff:

Plaintiff, a white male, was hired by

defendant Norbert Steinberger to be man-

ager of quality control at defendant Com-

puscan, Inc. At and before the date of

hiring, January 17, 1977, he was told by

defendant Seymour Naps that the job re-

quired common sense and by Steinberger

that he would be reviewed for salary

increase after three months. Plaintiff

began his work by hiring, training and

managing employees, some of whom were

later recommended for, and received merit

pay increases. One of the employees he

hired, a black female named Lee, did not

perform according to his standards. She

A-8

complained about him to Steinberger,

Claiming that plaintiff was harassing her

and plaintiff solicited the aid of de-

fendants Steinberger, Darrow and

Bergstrom, company officials, in dealing

with the situation. Steinberger

instructed him that blacks, being cultur-

ally deprived, were not expected to per-

form at the same standard as others.

Plaintiff objected to this policy as being

contrary to law; and continued to insist

that Lee be compelled to work at the

standards which he, plaintiff, expected.

Lee threatened that she would make a com-

plaint for racial discrimination and Naps

failed to conciliate the personnel prob-

lem. Plaintiff was summarily dismissed

as a regular employee by Steinberger on

June 17, 1977, Steinberger telling

plaintiff that he would do anything to

avoid a race discrimination charge.

Although no longer a full time employee,

plaintiff was kept on by the company in

A-9

some capacity and received his last pay-

ment from the company by means of a check

designated as for “services from August 8,

1977 to September 4, 1977."

Lee, on June 30, 1977, actually filed

a complaint with the New Jersey Division

on Civil Rights naming Compuscan,

Steinberger and plaintiff as respondents.

Plaintiff was never served with the Lee

complaint.2/

Another black employee, Cobb, filed a

discrimination complaint on July 6, 1977

naming Compuscan and plaintiff as re-

spondents. Again, plaintiff was not

served with the complaint.2/

1/ The records of the Division show that the

firm of Greenberg Margolis & Ziegler, P.A., by

Marguerite M. Schaffer, filed an answer on behalf

of the company. The complaint was later with-

drawn. Service had been made by mailing to the

employer.

2/ The records of the Division show that the

Greenberg firm filed an answer for Compuscan and

plaintiff. The complaint was dismissed for lack

of prosecution. Service had been made by mailing

to the employer.

A-10

Plaintiff claims that all of the

company=-connected defendants and the com-

pany's financing institutions and at-

torneys have unlawfully violated his con-

stitutional rights by discriminating

against him in his employment because of

his protests against company discrimina-

tory practices and firing him in retal-

iation for his opposition. Plaintiff con-

tends that the acts of these defendants

are contrary to Title VII of the Civil

Rights Act of 1964.

Aside from the allegations relating

to the alleged retaliatory firing of

plaintiff for voicing objection to the

company policy of unlawful discriminatory

favoritism toward blacks, plaintiff's com-

plaint continues a diatribe against his

former employer and the executive staff.

The allegations roam the gamut from

charges of falsification of test results

to nepotism to waste of special paper by

an unskilled typist. Plaintiff also

A-11

charges management and lending insti-

tutions with responsibility for dis-

astrous business losses suffered by the

company to the detriment of its creditors

including plaintiff when he recovers a

judgment. The losses are alleged to be

the result of bad business and labor

practices and the general male fides of

the people in charge. Allegations of this

nature clearly state no claim upon which

relief may be granted and will be dis-

regarded.

Plaintiff alleges that he became

aware of the Lee complaint against him on

February 17, 1978. On that date he went

to the Paterson office of the New Jersey

Division on Civil Rights where he at-

tempted to file a complaint alleging em-

ployment discrimination by Steinberger and

Lee. Plaintiff claims that he first pre-

sented a prepared written complaint which

was refused, the Division employees

insisting that the complaint be made on

A-12

forms supplied. The Division employees

refused to permit plaintiff to use the

prepared complaint as a guide and finally

refused to accept any complaint after

plaintiff completed the Division's pre-

interview form. Plaintiff moves to add

Span, one of the employees, as an

additional defendant in this matter. Her

supervisor, who confirmed her refusal to

accept the complaint for filing, is de-

fendant Alston. At the same time

plaintiff was refused permission to see

the Lee complaint against him.

Thereafter plaintiff attempted to

procure information about the Lee case

from Sincaglia, Chief of the Bureau of En-

forcement of the Division, and after a few

communications between the two, plaintiff

received a copy of the Lee complaint.

Plaintiff requested advice as to the pro-

cedure for “intervention" and his request

received no response from Sincaglia.

A-13

Attached to the complaint herein is a

copy of a Charge of Discrimination to the

EEOC dated June 13, 1978 by Neufeld Com-

puscan, Inc. is named as the employer who

discriminated; no other person is named.

The act complained of is the discharge on

September 4, 1977. The EEOC complaint re-

cites that Steinberger had told plaintiff

that he was being let go because of a dis-

crimination complaint made against the

company by Lee. The EEOC dismissed the

charge for lack of jurisdiction and a

right to sue letter dated July 17, 1978 is

said to have been received on July 20,

1978. The complaint in this court was

filed on October 17, 1978, less than 90

days thereafter.

Plaintiff has thus attempted to bring

the matter of alleged employment dis-

crimination to this court for redress by

the conventional means of first proceeding

administratively along the path laid down

in Title VII. At the same time plaintiff

A-14

seeks to redress alleged wrongs suffered

at the hands of the New Jersey Division on

Civil Rights and at the hands of those to

whom he turned to redress the alleged

wrongs. The complaint alleges that

plaintiff complained about the treatment

he had been accorded by the Division on

Civil Rights to the office of the Public

Advocate, headed by defendant Van Ness.

That office declined to press the matter

for him.

Plaintiff also made a complaint to

the New Jersey Commission of Investigation

of which defendant Rodriquez is the chair-

man. Correspondence with the Commission's

counsel resulted in that agency declining

to become involved in plaintiff's dispute

with the Division on Civil Rights. Plain-

tiff alleges that his problems with the

Division are of great public interest and

the Commission's refusal to pursue the

matter is arbitrary and “may be pre-

‘judiced".

A-15

Contemporaneously with these two com-

plaints, plaintiff also addressed himself

to the office of Attorney General Degnan,

requesting information about the Lee case.

The matter was handled by Deputy Attorney

General Rodner who provided plaintiff with

26 pages of material on the Lee case. On

August 25, 1978 plaintiff first learned of

the Cobb complaint. Plaintiff continued

to correspond with the Attorney General's

office in an effort to obtain answers to a

myriad of questions including a statement

of the "Experience & education" of the

"two young ladies I spoke to on February

17, 1978 at the Paterson Office with

Mr. Alston". At the same time plaintiff

posed certain "HYPOTHETICAL" questions to

the Attorney General relating to the

operations of the Division on Civil Rights

and generally charging infractions of the

law including extortion perjury and

compounding a felony.

Some of plaintiff's correspondence

A-16

with the Attorney General's office was

forwarded to the Division on Civil Rights

and defendant Musicant, the Deputy

Director, corresponded with plaintiff and

in effect supported the position taken by

Alston and Span in refusing to file

plaintiff's complaint on February 17. De-

fendant Potter, the Director of the Divi-

sion, also corresponded with Plaintiff.

Plaintiff is dissatisfied with the re-

actions of the persons from whom he has

sought assistance and vindication.

In general terms plaintiff complains

that the state employee defendants all

failed to enforce plaintiff's rights. The

agents of the Division of Civil Rights are

said to have violated his constitutional

rights by (1) failing to entertain his

complaint against his empioyer and (2)

failing to have him served with notice of

the Lee and Cobb complaints against him,

and depriving him of the opportunity to

refute their allegations. The other state

A-17

defendants are said to have violated

plaintiff's constitutional rights by fail-

ing to take action against the Division of

Civil Rights (1) for the Division's dis-

criminatory treatment of him (refusal to

accept a complaint from a white jewish

male while accepting a complaint from a

black female); (2) for the Division's

failure to serve notice of the Lee and

Cobb complaints thus depriving him of an

opportunity to defend. Finally, plaintiff

Claims that all of the defendants acted

together to maliciously interfere with

plaintiff's rights in employment by dis-

criminating against him on the ground of

race and by acting together to conceal the

Lee & Cobb complaints and thereby deny him

an opportunity to be heard in defense.

Plaintiff contends that the acts com-

plained of are violative of his rights

protected by the Fifth, Thirteenth and

Fourteenth Amendments and 42 U.S.C. §

A-18

1981, 1983, 1985 and 1986,

Plaintiff's brief and appendix filed

in response to defendant's motion to dis-

miss appears to expand his claim to an

attack upon the Division of Civil Rights

in general, claiming that the Division is

administered in a generally discriminatory

manner, tending to favor blacks and pro-

moting the interests of blacks to the det-

riment of whites. To this end he moves to

join the Division as a party defendant.

The allegations are so conclusory as to

necessitate denial of the motion to join

the Division.

THE DEFENDANTS

There are 3 general classifications

into which the named defendants may be

grouped: (1) plaintiff's former employer,

Compuscan, and persons connected with Com-

puscan; (2) companies or persons with whom

Compuscan did business; (3) state em-

ployees or officials sued both individu-

ally and in their official capacities.

A-19

GROUP 1:

Reading the complaint with as broad

an interpretation as possible regarding

the Compuscan group, plaintiff appears to

Claim that Steinberger instructed him to

treat black employees more leniently than

non=blacks, and when he sought the aid of

Darrow, Bergstrom and Naps they failed to

correct the situation. As a result of

plaintiff's objections to this unlawful

company policy, he was fired in retalia-

tion. Other Compuscan people are also

named as defendants: Rambrough, president;

Leonard, former president; Weiss,

vice-president; Frank, vice-president/

treasurer; and directors Burgin, Brody,

Bailleul, Allen, Olney and Millman. Other

than mentioning these defendants in the

caption, the complaint makes no reference

to them except to allege in conclusory

terms that they discriminated against

plaintiff. The complaint clearly fails to

state a claim against these ten

A-20

defendants upon which relief can be

granted.

The Title VII claims against Com-

puscan, Steinberger, Darrow, Bergstrom and

Naps must fail because they were not made

in a timely manner. Plaintiff's last day

of employment by Compuscan was apparently

September 4, 1977 according to plaintiff's

last pay check. Although defendants argue

that plaintiff was terminated on an ear-

lier date, the September 4th date will be

accepted for purposes of this motion. The

discriminatory act about which plaintiff

complains is his firing in retaliation for

his objections to defendant's unconstitu-

tional favoritism toward blacks, a Title

VII violation said to fall within §

704(a). No problem of a continuing wrong

is presented. Plaintiff attempted, un-

successfully to make his claim to the New

Jersey Division on Civil Rights on

February 17, 1978, within the 180 day

period fixed by N.J.S. 10:5-18. See 42

A-21

U.S.C. § 2000e-5(c). His claim was re-

jected on that date and he had 30 days

within which to file his complaint with

EEOC. 42 U.S.C. § 2000e-5(e).

No reason is suggested for

plaintiff's failure to file any complaint

with EEOC until June 13, 1978, 282 days

after the discriminatory event, and 116

days after the state proceeding had been

terminated by the rejection of the claim.

Plaintiff claims that he was told by

Steinberger at the time of the firing that

the company would do anything to avoid a

discrimination charge by Lee. Taking this

as true, it is apparent that plaintiff was

immediately aware of the reason for his

being discharged. There is no assertion

that Neufeld was prevented from asserting

his right, nor was he prevented from fil-

ing a charge with the EEOC within the

statutory 30 day period. See Hart v. J.T.

Baker Chemical Company, 598 F.2d 829 (3rd

Cir. 1979). Plaintiff alleges no facts

A-22

indicating any overreaching or concealment

on the part of the defendants except the

general allegation that they concealed

from him the pendency of the Lee and Cobb

complaints to the EEOC. Even assuming the

truth of these allegations as to the con-

cealment of the two EEOC complaints, there

is no factual or logical connection be-

tween this alleged concealment and Neu-

feld's failure to act within time in mak-

ing his EEOC complaint. Compare Reeb v.

Economic Opportunity Atlanta, Inc., 516 F.

2d 924 (Sth Cir. 1975).

Plaintiff's complaint for veties un-

der Title VII is fatally defective for a

second reason in addition to lack of time-

liness. The EEOC complaint filed by

plaintiff names Compuscan, Inc. as the

sole party which discriminated against

plaintiff. Neufeld's Title VII claim in

this court against all defendants other

than Compuscan is barred as well by his

failure to join them in the EEOC

A-23

complaint. Mickel v. South Carolina State

Employment Service, 377 F.2d 239 (4th Cir.

1967); Tuma v. American Can Company, 367

F. Supp. 1178 (D.N.J. 1973).

In the alternative, plaintiff claims

that the Compuscan defendants conspired

together to deprive him of his rights

created by Title VII and seeks relief

under 42 U.S.C. 1985(c). Deprivation "of

a right created by Title VII cannot be the

basis for a cause of action under §

1985(c)". Great American Federal Savings

& Loan Association v. Novotny, U.S. _

___, 60 L.Ed.2 957, 968 (1979).

Plaintiff also seeks relief under 42

U.S.C. § 1981. This Statute is limited by

its terms to instances of racial discrim-

ination because of his race. He does not

complain that he was discharged because he

was white, but rather he alleges that he

was discharged for objecting to what he

considered to be to be racial discrim-

ination practiced in favor cf others, but

A-24

not against him. There are no allegations

that plaintiff was ever himself the target

of racial discrimination in employment.

Since only the contract clause of § 1981

is enforceable against strictly private

parties, Mahone v. Waddle, 564 F.2d 1018

(3rd Cir. 1977), any general claims that

plaintiff has a right to insist upon equal

protection of the laws for all persons are

not remedi- able under 42 U.S. C. §1981,

that is assuming plaintiff has standing at

all to assert such a claim.

GROUP 2:

This is an employment discrimination

case. In his outrage, plaintiff has named

not only his employer as a defendant but

also firms which extended credit to the

employer and the attorneys who represented

the employer in two discrimination cases

before the State Division on Civil Rights.

Leon, Weill and Mahoney, a New York law

firm, Bessemer Securities Corporation,

Campagnie Participations et d'Inventisse-

A-25

ment Holdings S.A. (CPIH) and United

Jersey Bank, having no connection whatever

to the discriminatory acts charged in the

complaint, cannot be permitted to remain

as defendants. There is simply no set of

facts which, taken as true, states a claim

upon which relief can be granted, even

permitting the widest latitude in plead-

ings. See Rannels v. S. E. Nichols, Inc.,

591 F.2d 242 (3rd Cir. 1979). Loaning mon-

ey to a debtor or representing a client

who may be discriminating in employment is

simply not the basis of any action by the

aggrieved employee and the complaint

should be dismissed as to them. See Univ.

Chi. L.R. 402, A Construction of Section

1985(c) in Light of Its Original Purpose

(1979).

Greenberg, Margolis & Ziegler, a law

firm, and their employee, Schaffer, a New

Jersey attorney, came into the picture

presented by plaintiff when they filed an

answer on behalf of Compuscan only ina

A-26

discrimination complaint made by Lee

against Compuscan, Steinberg & Neufeld.

Compuscan had been served and the records

of the State Division on Civil Rights show

that Neufeld was not served. These de-

fendants also filed an answer on behalf of

Compuscan and Neufeld in a discrimination

complaint made by Cobb against Compuscan

and Neufeld. Again, Compuscan had been

served and the records of the State Divi-

sion on Civil Rights show that Neufeld was

not served. It would appear that these

defendants were without authority to act

for Neufeld and did so without his knowl-

edge or permission. However, the Cobb

complaint was dismissed by the agency.

There is no question that Compuscan had an

unequivocal right to legal representation

in the Lee and Cobb matters. Giving legal

representation to a client who may be dis-

criminating in employment is simply not

the basis of a Title VII action by an ag-

grieved employee. A title VII claim rests

A-27

upon the existence of a present, past or

future employment relationship which is

totally lacking between plaintiff and the

law firm.

Plaintiff's claim against these de-

fendants goes further. He contends that

they did not inform him that he had been

named as a defendant in the Lee and Cobb

matters and thus deprived him of his

Fourteenth Amendment right to present a

defense. Except for the statutory re-

medies provided in the various Civil

Rights Acts, the law has no provision for

the private redress of an alleged con-

stitutional violation committed by a

purely private person. A cause of action

under 42 U.S.C. § 1983 required that the

conduct complained of has occurred “under

color of" state law. Jackson v. Metro-

politan Edison Company, 483 F.2d 754 (3rd

Cir. 1973), aff'd, 419 U.S. 345 (1974).

The profession of law by private practi-

tioners is an essentially private action.

A-28

Plaintiff does not even allege that the

law firm and its members acted under color

of state law. Jurisdiction based on 42

U.S.C. § 1981 does not lie: section 1981

proscribes only racial discrimination.

Runyon v. McCrary, 427 U.S. 160(1976). In

addition, only the contract clause of §

1981 is enforceable against strictly priv-

ate persons. Mahone v. Waddle, 564 F.2d

1018 (3rd Cir. 1977). Plaintiff unsuc-

cessfully attempts to embellish his claim

with accusations of conspiracy and thus

seeks this court's aid under 42 U.S. C. §

1985. The allegations of the complaint

are conclusory in the extreme with respect

to the facts of the alleged conspiracy and

have not been supplemented in any of the

voluminous materials submitted by plain-

tiff in connection with these motions.

Complaints containing merely conclusory

allegations of violation under § 1985(3)

are to be rejected. Robinson v. McCorkle,

462 F.2d 111 (3rd Cir. 1972), cert.denied,

A-29

409 U.S. 1042 (1972).

If plaintiff's claim against the law

firm is interpreted as alleging legal mal-

practice with jurisdiction based on

diversity of citizenship, it must still

fail. It is clear that there was no ob-

ligation to advise plaintiff of anything

whatever in the Lee case in which these

defendants appeared only for Compuscan and

in which plaintiff was never served.

While there may have been some obligation

in the Cobb case since these defendants

apparently mistakenly, appeared for

plaintiff, the failure to discharge the

obligation is of no moment. The simple

undisputed facts are that these defendants

did provide a defense for plaintiff in the

Cobb case and the Cobb case was dismissed

by the Division on Civil Rights. Summary

judgment should be granted in favor of

Greenberg, Margolis & Ziegler, P.A. and

Schaffer and against the plaintiff.

Plaintiff asserts claims against

A-30

Steinberger, Darrow & Bergstom for alleged

violations of §1981 and §1985 arising from

their connection with the acts of the .

lending institutions and the lawyers.

Since the acts of the lending institutions

and the lawyers give rise to no claim upon

which relief can be granted, connection

with or participation in these acts by

Steinberger, Darrow & Bergstom does not

spell out a claim upon which relief can be

granted. Summary judgment should be

granted in their favor on these claims.

Independent federal jurisdiction of

plaintiff's claims against all the private

individuals and firms on any theory other

than violation of civil rights is not

shown. Plaintiff claims pendent jurisdic-

tion. Before considering whether in the

exercise of sound discretion this court

ought to exercise that jurisdiction, it

must first be determined whether the court

A-31

has power to entertain the asserted pen-

dent claims.3/

Applying the twin tests of United

Mine Workers v. Gibbs, 383 U.S. 717

(1966), it can be seen that the federal

race discrimination claim and the charges

involving these defendants do not "derive

from a common nucleus of operative fact",

and would not ordinarily be expected to be

tried "all in one judicial proceeding” 383

U.S. at 725. There is thus no jurisdic-

tion to entertain any claims not based

upon the civil rights theory.

3/ Among the complaint's allegations in sup-

port of the asserted pendent claims are the fol-

lowing:

The abuse of employed personnel, the manipu-

lation of records, the lack of Corporate in-

tegration and the prevailing inexperience and

at time malicious behavior of Defendant

Managers and personnel in actions complained

of, has brought the Company to a present dif-

ficult state. Equipment performance is fail-

ing and the need for great leadership is

critical. This present condition is simply

a consequence of selfishness and greed that

caused defendants to engage in the practices

stated, which are gross violations of the law.

A-32

GROUP 3:

Neufeld has made two distinct claims

against the state employees and officials

who are defendants in this matter. De-

fendants Attorney General Degnan, Public

Advocate Van Ness and Rodriquez, chairman

of the New Jersey State Commission on

Investigation are sued both individually

and in their official capacities for their

alleged failure to take action against the

State Division on Civil Rights as demanded

by Neufeld. Plaintiff alleges that all

these defendants deprived him of his right

to due process and equal protection of the

law and seeks a remedy under 42 U.S.C. §§

1981, 1983 and 1985.

The complaint against all of the

state defendants in their official

capacities is barred by the Eleventh

Amendment. "[A] suit in federal court by

private parties seeking to impose a

liability which must be paid from the

public funds in the state treasury is

A-33

barred by the Eleventh Amendment". Quern

v. Jordan, 440 U.S. 332, 337 (1979). To

the same effect is Alabama v. Pugh, 438

U.S. 781 (1978) and Skehan v. Board of

Trustees of Bloomsburg State College, 590

F.2d 470 (3rd Cir. 1978). The New Jersey

Tort Claims Act did not impair New

Jersey's Eleventh Amendment immunity.

Ritchie v. Cahill, 386 F. Supp. 1207

(D.N.J. 1974). Summary judgmert in favor

of all of the state officials and em-

ployees sued in their official capacities

should be granted. The complaint against

Degnan, Van Ness,4/ and Rodriquez

4/ As set forth in the complaint, the allega-

tions against Van Ness are as follows:

The decision of the Public-Advocate STANLEY

C. VAN NESS to “not get involved” is dis-

criminatory and similar situations challeng-

ing the Public-Advocates Decisions exist!

These refusals after knowing the facts of the

matter as revealed by Mr. Roy T. Falls ina

letter dated Oct. 3, 1978 "I know you intend

to pursue this though FEDERAL channels and

hope it will eventually be resolved to your

satisfaction -- etc.” clearly indicates

STANLEY C. VAN NESS knew there was jurisdic-

(footnote continued on following page)

A-34

individually is clearly without merit.

All are charged with derelictions in

their prosecutorial or quasi prosecutorial

duties. Thus all are immunized from suit.

Imbler v. Pachtman, 424 U.S. 409 (1976);

Butz v. Economou, 438 U.S. 478 (1978).

Officials performing functions analogous

to those of a prosecutor in determining

whether to initiate administrative

proceedings or seek sanctions should be

able to claim absolute immunity with

respect to such acts. Summary judgment in

favor of defendants Degnan, Van Ness and

Rodriquez should be granted.

tion for Constitutional violations in stating

this opinion, yet VAN NESS offered no State

remedy. Hence with knowledge of and as an

attorney and acting as the Public Advocate

under State Laws, VAN NESS refused to prevent

the continuing Civil Rights Denials to

Plaintiff or exert any of his powers on and

for Plaintiff. The refusal to do so is al-

leged to be based upon arbitrary, capricious

and frivolous decision making processes, for

clearly the Public Advocate knew all the

issues and details from submitted documents.

A-35

It is alleged against the persons

connected with the State Division on Civil

Rights that they refused to accept plain-

tiff's complaint against Compuscan et als

for filing, failed or refused to see that

he was served with the complaints filed

against him by Lee and Cobb and failed or

refused to give him information which he

requested about those two complaints. The

defendants so charged are Smith, the Dir-

ector of the Division, Potter, a former

director, Alston, the manager of the Div-

ision's Paterson branch office, Sincaglia,

chief of the Division's Bureau of Enforce-

ment, Musicant, the Deputy Director and

Rodner a Deputy Attorney General assigned

to the Division. All are sued in their

official capacities and as individuals.

Except for having his name mentioned

in the complaint, defendant Smith is not

alleged to have any connection with the

events about which plaintiff complains.

Sincaglia engaged in a brief corres-

A-36

pondence with plaintiff. This defendant's

failure to continue the correspondence is

alleged to be a violation of plaintiff's

right to be informed of the Lee and Cobb

complaints against him. Musicant, 3/

Rodner®/ and Potter also corresponded

with plaintiff and provided him with

information about the Lee and Cobb com-

plaints or about the policy or practice of

the State Division on Civil Rights. For

some inexplicable reason they have been

made parties to this action and their ob-

vious efforts to provide courteous re-

sponses have been twisted into a

3/ Musicant wrote and signed a letter dated

September 27, 1978 for the director, Potter, in

which she stated that the Division would not take

plaintiff's complaint “because you do not state a

claim under the law upon which relief can be

granted...”

6/ As set forth in the complaint, the alle-

gations against Rodner are as follows:

“[Plaintiff's] letter dated July 8, 1978 to DE-

GNAN was ‘cosmetically’ answered by ROSNER for

DEGNAN and the Facts of the instant matter were

misrepresented, the Law is and was improperly

quoted and the letter is misleading...”

A-37

reflection of an international plot

against Neufeld. Their correspondence ap-

pears as part of the appendix in support

of the state defendants’ brief which was

received by the clerk on December 12,

1978.

In § 1983 actions liability may not

be premised on the common law doctrine of

respondeat superior. Rizzo v. Goode, 423

U.S. 362 (1976); Hampton v. Holmesburg

Prison Officials, 546 F.2d 1077 (3rd Cir.

1976). The burden falls on plaintiff to

demonstrate the requisite personal in-

volvement. Bracey v. Grenoble, 494 £.2d

566 (3rd Cir. 1974). If plaintiff's com-

plaint is interpretated as alleging that

the directors and deputy directors of the

New Jersey Division on Civil Rights are in

some way liable to plaintiff for failing

to adequately oversee the operations of

the Division, it would still state no

cognizable claim against these officials.

Conclusory allegations of such a nature

A-38

which are void of the necessary element of

direct involvement must fail, "since

liability cannot be predicated solely upon

Supervisory authority”. Diaz v. Ward, 437

F. Supp. 678, 689 (S.D.N.Y. 1977). Sum-

mary judgment should be granted in favor

of defendants Smith, Potter, Sincaglia,

Musicant and Rodner.

The remaining defendant, C.Y. Alston,

is the manager of the Division's branch

office in Paterson, New Jersey. Alston

had some personal contact with plaintiff's

case on February 17, 1978 when Spann, an

intake worker at the branch, refused to

accept plaintiff's complaint for alleged

employment discrimination. Plaintiff went

over her head to Alston who himself re-

fused to accept for filing a complaint

said by plaintiff to have been prepared by

the American Jewish Congress. Instead,

plaintiff was compelled to complete a form

supplied by the Division. Alston refused

to file plaintiff's complaint even after

A-39

plaintiff completed the prescribed form.

A copy of the purported complaint

prepared by the American Jewish Congress

is included in plaintiff's appendix in op-

position to this motion. It is actually a

skeletal outline to be used as a guide in

the preparation of a complaint. Also

included in the appendix is a copy of the

Pre-interview Form completed by plaintiff

on February 17th at the Paterson branch

office.Z/

It must be noted initially that

Alston's action did not foreclose

7/ According to the Pre~interview Form, plain-

tiff was complaining about his dismissal from

employment “because of an action filed against

the company by M. Lee, alleging discrimination”.

In response to the question, “What discriminatory

act was committed?”, plaintiffs response was as

follows:

I was falsely accused of discriminating, not

permitted to defend or rebute allegation, I

was dismissed, received no verbal or written

warning of action and not permitted to trans-

fer or perform other type of work for the

company which was verbally and documented

offered to black in the company.

A-40

plaintiff's right to pursue his claims by

filing with the E.E.0.C. with subsequent

suit in the District Court. The ter-

mination of the state proceeding “whether

with a helpless shrug of the shoulders or

a turning out of pockets, or with no ex-

planation whatsoever" triggers Federal

involvement. Pacific Maritime Association

ve. Quinn, 465 F.2d 108, 110 (9th Cir.

1972). No further activity toward ex-

haustion of his state remedies was re-

quired of plaintiff: a request for recon-

sideration of the refusal to accept his

complaint was not necessary before making

an EEOC complaint. Bremer v. St. Louis

Southwestern Railroad Company, 310 F.

Supp. 1333 (E.D. Mo. 1969). Violations of

state law in the treatment of a claim by a

state agency have no effect on the capac-

ity of the E.E.0.C. to process the claim,

Eldredge v. Carpenters 46 Northern

California, Etc., 440 F. Supp. 506 (N.D.

Cal. 1977). It is clear that Neufeld was

A-41

confronted with no obstacle to taking his

case to the E.E.0.C. when, on February 17,

1978 Alston approved Spann's refusal to

lodge the complaint before the State Divi-

sion on Civil Rights.

A remaining question is whether Neu-

feld has a federally protected con-

stitutional right to have his case pro-

cessed by the State Division on Civil

Rights. The concept that a state em-

ployment discrimination agency may waive

its opportunity to take action on a par-

ticular grievance was approved in Love v.

Pullman Co., 404 U.S. 522 (1972). Accord-

ing to an affidavit of James Sincaglia,

the New Jersey Division on Civil Rights

has adopted an interviewing system named

"Intensive Intake" the objective of which

is to “evaluate whether the prospective

complainant stated a cognizable cause of

action". No complaint will be taken which

fails to meet certain stated criteria.

Although no precise authority has been

A-42

discovered, it seems to be beyond argument

that any investigatory agency has the

authority to determine the threshold ques-

tion whether a complaint states a claim.

It has already been established that a

state anti-discrimination agency may waive

involvement entirely, Love v. Pullman Co.,

Supra, or may terminate its activity in a

particular matter without explanation.

Pacific Maritime Association v. Quinn,

supra. It follows that Neufeld had no

absolute right to have his case processed

by the State Division on Civil Rights.

In addition to claiming that the

failure to file his complaint was in

violation of his civil rights, plaintiff

also complains that Alston failed to have

him served with the Lee and Cobb com-

plaints. It is contended that this

failure is also a violation of his civil

rights. This second aspect of Neufeld's

complaint against Alston does not appear

to rise to constitutional proportions.

A-43

The circumstances of the Lee and Cobb com-

plaints have been dealt with previously.

Although it is alleged in highly con-

clusory fashion that Alston conspired with

the other named defendants to conceal the

Lee and Cobb complaints from Neufeld, the

conceded fact is that a copy of the Lee

complaint was furnished to him within a

short time of his request for it. It is

also not contradicted that the com-

plainants had withdrawn their complaints

before Neufeld attempted to intervene.

Such procedure is common place in the law,

e.g.-, Rule 4l(a) F.R. Civ. P.3 N.J. Rule 4:37

l(a).

Because of the insubstantial nature

of the claims against Alston, it does not

become necessary to determine whether a

branch manager of the State Division on

Civil Rights is entitled to the protection

of either absolute or qualified immunity.

For the reasons stated, it is re-

spectfully recommended that summary

A-44

judgment be entered in favor of all

defendants and aginast plaintiff with

costs.

Serena Perretti

United States Magistrate

Dated: January 11, 1980

ORIGINAL TO THE CLERK

XC3

Honorable H. Curtis Meanor

Eugene S. Neufeld

200 West 86th Street, Apt. 7-G

New York, N.Y. 10024

Greenberg & Margolis

100 Evergreen Place

East Orange, N.J. 07018

John J. Degnan, Esq.

1100 Raymond Boulevard

Newark, N.J. 07102

Richard J. Donahue

l Essex Street

Hackensack, N.J. 07601

Pachman, Aron, Till & Salzberg

591 Summit Avenue

Jersey City, N.J. 07306

A-45

SUPREME COURT OF THE UNITED STATES

No. A=-553

EUGENE S. NEUFELD,

Petitioner

BRUCE BAMBROUGH, etc., et al.

COMPUSCAN INC., ET AL

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon Consideration of the application

of petitioner, It Is Ordered that the time

for filing a petition for writ of certior-

ari in the above-entitled cause be, and

the same is hereby, extended to and in-

cluding

March 13 , 1983

/s/ William J. Brennan

Associate Justice of the Supreme

Court of the United States

Dated this 2lst

day of December , 1982

[Seal Of The Supreme Court

Of The United States]

A-46

A true copy ALEXANDER L. STEVAS

Test:

Clerk of the Supreme Court & the United

States

Certified this 22nd

day of December , 1982

Chief Deputy

A-47

OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

WASHINGTON, D. C, 20543

January 13, 1983

Mr. Eugene S. Neufeld

200 West 86th Street

Apartment 7G

New York, NY 10024

Re: Eugene S. Neufeld v. Bruce Bambrough,

Dear Mr. Neufeld:

Your application for an order

directing the United States Court of

Appeals for the Third Circuit to issue an

Opinion has been presented to Justice

Brennan, who has endorsed thereon the

following:

"Denied Wm. J. Brennan, Jr.

1/11/83."

Because you did not provide a service

list with the addresses of opposing

counsel, I must ask that you notify them of

A-48

the disposition of this application by

sending them a copy of this letter.

Very truly yours,

ALEXANDER L. STEVAS, Clerk

Francis J. Lorson

Chief Deputy Clerk

rjb

cc: Sally Mrvos, Esq., Clerk, U.S.Court of

Appeals for the Third Circuit (Your

No.80-1987)

A-49

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 80-1987

EUGENE S. NEUFELD,

Appellant

BRUCE BAMBROUGH, etc., et al.

(C.A. No. 78-2483) Filed Oct. 1.230

— <=

SUR PETITION FOR REHEARING

EN BANC

Present: SEITZ, Chief Judge, ALDISERT,

ADAMS, GIBBONS, HUNTER, WEIS,

GARTH, HIGGINBOTHAM, SLOVITER,

BECKER, Circuit Judges, and

TEITELBAUM, District Judge.*

The petitition for rehearing filed by

Appellant

in the above entitle case having been sub-

mitted to the judges who participated in

the decision of this court and to all the

other available circuit judges of the

A-50

circuit in regular active service, and no

judge who concurred in the decision having

asked for rehearing, and a majority of the

circuit judges of the circuit in regular

active service not having voted for

rehearing by the court in banc, the

petitition for rehearing is denied.

By the Court,

Circuit Judge

Dated:

October 14, 1982

A-51

200 West 86th Street

New York, NY 10024

February 28, 1980

Hon. H. Curtis Meanor, U.S.D.J.

United States Post Office and Court House

Newark, NJ 07101

In Ref: Neufeld vs. Bambrough et.al.

Civil-Action ra-3483

Dear Judge Meanor:

I write to inform the court; (1) the

Magistrate's Report and Recommendations (s)

were the first indication that I received

that the pending motion(s)-(is) (are) to be

treated as under Rule 56 rather than Rule

12 of F.R.Civ.P., (2) although I do not

know that the Court will now treat the

motion(s) as seeking summary judgment. I

will to protect my rights, proceed on that

assumption, and (3) accordingly, I intend

to file the following papers within the

next several months: Motions pursuant to

F.R.Civ.P.,-15-56,26,33,34,36 or any other

procedural and necessary motion.

A-52

I respectfully entreat the Court not

to reach any decision until I have had an

opportunity to prepare and submit the above

papers. I currently have a full time job

and I work alone, but I wish to assure the

Court that I am doing my level best to

complete the task as expeditiously as

possibe. I am working to the utmost of my

physical capabilities.

Respectfully,

E. Simon Neufeld, Plaintiff, Pro Se.

A-53

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

EUGENE S. NEUFELD, NOTICE OF MOTION

Plaintiff, MOTION

Vv. OBJECTIONS (PARTIAL)

TO REPORT AND

RECOMMENDATION

BRUCE BAMBROUGH, et al, Filed Feb,ih |230

‘ “JV

Defendants. Civil Action No.

78-2483

Pursuant to the ORDER entered on the

docket on Feb. 4, i980 extending time to

plaintiff to respond to the proposed

findings and recommendations, to Feb. ll,

1980 [copy of the Clerk's entry received

by plaintiff on Feb. 8, 1980], plaintiff

hereby (partially) responds to the REPORT

AND RECOMMENDATION as follows.

Plaintiff, OBJECTS to each and every

part of the REPORT AND RECOMMENDATION*, to

each and every finding of fact, to each

and every recommendation and to each and

every conclusion of law, on the grounds

*submitted pursuant to 28 U.S.C.

9636(b)(1)( B) filed on Jan. 14, 1980

——

A-54

that tne REPORT AND RECOMMENDATION dis-

regards key facts and major points in

plaintiffs papers before the Magistrate,

and that plaintiff was not notified that

the motions were to be treated as motions

for summary judgment, and that not pro-

viding plaintiff such notice denied

plaintiff “reasonable opportunity to pre-

sent all material made pertinent to such a

motion by Rule 56",

Plaintiff reserves the right to file

a more complete and proper OBJECTION when

given the opportunity and appropriate

amount of time to formulate OBJECTIONS

which he has heretofore not been provided

and now requests since notice of said con-

version of the 12(b)(6) and 12(C) to Rule

56, appeared in paragraph one of the RE-

PORT AND RECOMMENDATION filed on Jan. 14,

1980.

"the court at no time intimated that

it intended to consider the motions under

Rule 56. This statement is not contra-

A-55

dicted. Eight months later the court

extended the order granting summary judg-

ment for the appellees." Newman Oil Com-

pany v. Atlantic Richfield Comp. 597 F.2d

275@278(1979).

"_consequent right in opposing party

to file counter-affidavits or to pursue

reasonable discovery". Plante v. Shivar,

540 F.2d 1233. Plaintiff has not filed

counter-affidavits, see Dayco Corporation

v. Goodyear Tire & Rubber Co., 523 F.2d

389.

There is implicit in “reasonable op-

portunity" provision of Rule 12(b) a “not-

ice requirement". Schwartz v. Com-

monwealth Land Title Insurance Co. (1974,

D.C. Pa) 374 F.Supp 564.

Now that notice has been given in the

REPORT AND RECOMMENDATION that the

12(b)(6) and 12(c) motion is treated as a

Rule 56 motion, as recommended by the Mag-

istrate, plaintiff requests the oppor-

tunity to submit relevant, pertinent

A-56

material in support of plaintiff's OR-

JECTIONS and opposition to the seventeen

(17) pages of the REPORT AND RECOMMEN-

DATION, setting into the record papers of

admission, integrrogatories, affidavits,

etc. and the specific listing of genuine

issues as to material facts.

Plaintiff requests the time to pre-

pare pro se such formulated OBJECTIONS to

the seventeen page, forty one odd para-

graphs REPORT AND RECOMMENDATION, based on

complex and voluminous pleadings. To

further obtain affidavits _etc. and

plaintiff requests the court not to act on

the REPORT AND RECOMMENDATION until

plaintiff obtains such reasonable time for

"stating material facts as to which there

exists a genuine issue." (Local Rule 12F).

Plaintiff restates that the REPORT

AND RECOMMENDATION is the first notice

that the 12(b)(6) and 12(c) submitted

motions were to be treated as summary

judgment, Rule 56. Plaintiff's request is

A-57

hereby repeated, to postpone and continue

the hearing, to permit affidavits to be

supplemented and opposed by further af-

fidavits _ to permit plaintiff to present

explicit facts sufficient to justify be-

liefs as to the allegations of the com-

plaint and to enter into the record such

affidavits and the issues of facts to be

established.

To provide for an offer of proof on

trial_setting forth what is in the record

as to facts.

"_the administration of justice is

based upon a full and fair disclosure of

the facts." Slagle v. U.S. 228 F.2d 673.

Request is hereby made for a de novo

determination, based on the OBJECTIONS,

that the court reject the REPORT AND RE-

COMMENDATION in whole, until modified by

further evidence.

Respectfully submitted,

Eugene S. Neufeld

Dated: Feb. 10, 1980

A-58

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

EUGENE S. NEUFELD,

Plaintiff, AFFIDAVIT

BRUCE BAMBROUGH, et al,

COUNTY OF NY

STATE OF NEW YORK

Defendants. Civil Action No.

78-2483

S.S

EUGENE S. NEUFELD, of full age, being

duly sworn according to law, upon his oath

deposes and says:

l. I am the plaintiff in this action

and this AFFIDAVIT is of Personal

Knowledge.

2. For the following reasons stated, I

cannot present by affidavit facts

essential to justify my opposition

and OBJECTIONS to the REPORT AND

RECOMMENDATION, because I require

time to permit affidavits to be ob-

tained or discovery to be had or

depositions to be taken to justly

present the facts, fully and of

issue.

A-59

This is a complex case, containing

voluminous pleadings, [see attached

list), has been brought in good-

faith, conforms to the

F.R.C.P. is ripe, timely and

justiciable, has had extensive ex-

haustion of Administrative State

and Federal attempts at remedies to

be set into the record.

Jurisdiction is sought under

several constitutional, federal and

state statutes in Civil Rights,

including Due-Process, Equal

Rights, Equal Protection,

Privileges and Immunities, under

the 5th, 13th, 14th, Constitutional

Amendments, 42 U.S.C. 41981, 1983,

1985, 1986, 2000d, 2000e, et_seqg

(i.e., Title VI & Title VII) Ex-

ecutive Order 11246 & E.O. 11764,

and Declatory Judgment Title 28

U.S.C. 972201,2, and others

A-60

specified in the Complaint Amended

Complaint and enumerated in the

pleadings in considerable detail.

The REPORT AND RECOMMENDATION did

not take into account many key

facts and major points, too en-

umerable to properly list and dis-

cuss, since the receipt of same

on Saturday Feb. 19, 1980.

Several affidavits supplementing

and opposing existing

affidavits,could not be obtained in

this short time.

Plaintiff was mislead and deceived

by Steinberger, Compuscan, in being

told to keep records of Lee and

Cobb, and there would be a public

hearing, then concealed the ex-

istence of the complaints.

Defendant Greenberg, Margolis &

Ziegler; M. Schaefer knew that de-

fendant Compuscan was in conflict

with plaintiff.

10.

ll.

12.

13.

A-61

The government employees violated

their own published rules and pro-

cedure.

Certain defendants made claims

which are not true.

Defendants violated their own cor-

porate Directives.

Defendants communicated with each

other to prevent plaintiff from

learning of the proceedings and

from personally appearing in same.

There are several mistaken mis-

understandings in the pleadings of

defendants and facts shall further

reveal the credibility of

plaintiff's allegations. These are

essential in justifying plaintiff's

opposition, and plaintiff must be

given the oppotunity to state the

material facts to which there ex-

ists a genuine issue.

A-62

14. Plaintiff shall respond by

affidavit or as is provided in Rule

5b showing that there is a genuine

issue(s) for trial, this requires

time.

Eugene S. Neufeld, Pro Se

Sworn to before me this

10th day of February 1980.

A-63

SUMMARY OF PLEADINGS |

Plaintiff's COMPLAINT 23 pages.

Compuscan's ANSWER 8 pages.

Plaintiff's AMENDED COMPLAINT 37

pages.

State's 12b6 Motion to Dismiss 30

pg. brief 70 pg. Appendix, Van

Ness' Statement 2 pgs.

Compuscan's 12b6 Motion to Dismiss

__18 pg brief _—_—s 7 ~ pg. Appendix.

Leonard's 12b6 Motion to Dismiss __

9 pg. brief., Leonard's Answer __ 20

pgs.

United Jersey Bank's 12c Motion ___ 3

pg. brief.

Plaintiff's Opposition to - State's

12b6 _s—s«448 «pg. brief (55 pg.

Appendix.

Compuscan's 12 b6 ___—s 44 _ pg. brief __

51 pg. Appendix.

United Jersey's l12c __‘ 99 pg. brief

_.._ 21 pg. Appendix.

10.

ll.

12.

13.

14.

15.

A-64

(**) Leonard's 12b6 24 pg. breif

___56 pg. Appendix.

States Sovereign Immunity Motion _

15 pg. brief __—s 7 ~pg. Appendix.

Plaintiff's opposition to Sovereign

Motion _ 65 pg. brief _—s— 556 _ pg.

Appendix.

Feb. 13, 1979 Court Hearing __ 53

pages.

Appendix on Color-Race-Religiion ___

16 pages including 4 more pages of

Discrimination Affidavit (**) add to

etc.

Nine pages of affidavits.

Memorandum on 13th amendment ___ 18

pgs. - Appendix and Affidavit ‘54

pgs, +l.

Report & Recommendations 17 pgs.

Plaintiff's Papers 28% Pleadings

Appendices 309

Defendant's Papers 105 Pleadings

Appendices 84

Courts Papers 70

Totals 457 393

A-65

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

EUGENE S. NEUFELD, NOTICE OF MOTION

Plaintiff, MOTION

Ve OBJECTIONS TO REC-

OMMENDATIONS AND

FINDINGS

BRUCE BAMBROUGH, et al,

Defendants. Civil Action No.

78-2483

Filed. Jan, 23, 1980 ,

PLEASE TAKE NOTICE that on Monday,

January 28, 1980, at 10:00 in the fore-

noon, or as soon thereafter as plaintiff

can be heard, the undersigned, plaintiff

Eugene S. Neufeld, appearing pro se, will

appear before The Honorable H. Curtis

Meanor in his chambers in the Federal

Building, Newark, New Jersey, and move

this Court for an order extending the time

within which plaintiff may file objections

to the proposed findings and recommenda-

tions of The Honorable Serena Perretti,

United States Magistrate, from Tuesday,

January 29, 1980 to April 28, 1980. The

A-66

aforesaid proposed findings and recom-

mendations were received by plaintiff on

Saturday, January 19, 1980.

In support of the foregoing motion,

plaintiff cites as reasons for the re-

quested extension the fact that he is

appearing pro se in this cause; that the

motions and pleadings in this matter are

both complex and voluminous and that the

proposed findings and recommendations are

in excess of 17 pages and, therefore, re-

quire for appropriate response consider-

able time in excess of the 10 days pro-

vided by statute.

In view of the time element involved

in this case, plaintiff also herewith sets

forth his formal objections to all of the

recommendations and proposed findings

filed by the United States Magistrate on

January 14, 1980.

EUGENE S. NEUFELD

Dated: Jan. 26, 1980

A-67

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

EUGENE S. NEUFELD,

Plaintiff, STATEMENT IN

LIEU OF BRIEF

BRUCE BAMBROUGH, et al,

Defendants. Civil Action No.

78-2483

Plaintiff is requesting an extension

of time within which to respond to the

proposed findings and recommendations of

the United States Magistrate sitting in

this cause. 28 U.S.C.A.0636(b) (1) (C)

provides for a 10-day period of time for

the filing of written objections to pro-

posed findings and recommendations. The

statute further provides for a right to a

de novo determination of those portions of

the report or specified proposed findings

or recommendations to which objection is

made.

The complaint in this action sets

forth 13 causes of action. Plaintiff is

A-68

appearing pro se in this matter and cannot

respond to such a complex case within the

10 days provided by statute.

Accordingly, plaintiff seeks an ex-

tension of time within which to file

formal objections to the proposed rec-

ommendations and findings.

Respectfully submitted,

Eugene S. Neufeld

Dated: Jan. 26, 1980

A-69

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

HON. H. CURTISS MEANOR

HON. Serena M. PERRETTI

Civil-Action No.78-2483

EUGENE S. NEUFELD, Plaintiff

Ve Filed duly 3h 1979

BRUCE BAMBROUGH, et al, Defendants

State of New York

County of New York AFFIDAVIT OF FACT

EUGENE S. NEUFELD, being of age under

oath says:

l. I am the Plaintiff in this Action and

my July 13, 1979 request for additional

time being denied, I want to state the

following:

2. Unfortunate personal situations

prevented the submitting by July 3l, 1979,

certain FACTS, EVIDENCE and AFFIDAVITS I

believe could have substantial influence on

certain Court Decisions.

3. In the Court's Discretion if the

12(b) (6) and 12(c) Motions are construed to

A-70

be F.R.C.P.56 then several AFFIDAVITS of

FACT would be necessary to support

Plaintiff's Opposition.

4. Two AFFIDAVITS showing Corporate Fringe

Benefits extended to August 15.

5. An AFFIDAVIT from S.Jacobi of the

American Jewish Congress will further rebut

C.Y.ALSTON and R.Spann's AFFIDAVIT.

6. AFFIDAVITS of CompuScan's Corporate-

Systemic-Invidious discrimination on an

historic and continuous basis on personal

knowledge are forthe coming from a former

long time employee, a former Asian employee

and an American Caucasian, all supporting

FACTS of "Unlawful Employment Practices"

against Blacks, Women, Foreign Born and

Retaliation against those who oppose same,

and AFFIDAVIT of Tortuos Interference with

Employment by use of Unreasonable duress

concerning Falsification of Corporate

Technical Records.

A-71

7. A Bibliography of Books, Essays,

Articles, Research concerning the specified

type of Discrimination and Verification of

the Manifestation of such Discrimination in

New Jersey.

8. A statistical report verifying that

Plaintiff is and was not a singular victim

of the Defendants' Actions.

Eugene S. Neufeld, Pro Se

July 31,1979

Notary Public (No.3I- 463 7460

A-72

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CIVIL NO. 78-2483

EUGENE S. NEUFELD,

Plaintiff, TRANSCRIPT OF PROCEEDINGS

vs.

BRUCE BAMBROUGH, et al,

Defendants.

Newark, New Jersey

February 13, 1979

B E F OR E: THE HONORABLE SERENA

PERRETTI, U.S. MAGISTRATE

APPEARANCE S:3

EUGENE S. NEUFELD,

Pro Se Plaintiff,

GREENBERG, MARGOLIS & ZIEGLER

BY: MITCHELL FISHMAN, ESO.,

For Defendants Bruce Bambrough,

Norbert Steinberger, Marvin Weiss,

William Burgin, Martin Brody, Michael

R. Bailleul, Michael Allen, Norman

Frank, Seymour Naps, Julian Olney,

Jacob Millman, Carol Darrow, Barbara

Bergstrom, Marguerite Schaffer,

Greenberg Margolis & Ziegler, P.A.,

Leon Weill & Mahoney, Bessemer

Securities Corp., Compagnie

Participations et d'Investissements

Holdings, S.A., and Compuscan.

PACHMAN, ARON, TILL & SALSBERG

BY: PETER W. TILL, ESQ.,

For the Defendant Robert Leonard.

A-73

APPEARANCE S:_ (CONTINUED)

RICHARD J. DONOHUE, ESQ.,

BY: MARTIN L. SISSELMAN, ESO.,

For the Defendant United Jersey Bank.

JOHN J. DEGNAN, ATTORNEY GENERAL FOR

THE STATE OF NEW JERSEY

BY: JOSEPH M. GORRELL, D.A.G.,

For the Defendants Degnan, Smith,

Potter, Alston, Rodriguez, Sincaglia,

Rodner, Musicant, and Van Ness.

LYNNE JOHNSON, CSR

OFFICIAL COURT REPORTER

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

P.O. BOX 703

FRANKLIN PARK, N.J. 08823

(201) 645-2260

A-74

THE COURT: Give me your appearances,

starting from Mr. Till and since I've got

them that way.

MR. TILL: Peter Till, your Honor,

appearing for Robert Leonard.

MR. FISHMAN: Mitchell Fishman, ap-

pearing for the Compuscan defendants.

Would you like me to go over each one?

THE COURT: Name them all, would you

please.

MR. FISHMAN: Bruce Bambrough, Robert

Leonard, in his capacity as an employee of

Compuscan and not individually. Norbert

Steinberger, Marvin Weiss, William Burgin,

Michael Bailleul, Michael Allen, Norman

Frank, Seymour Naps, Jacob Millman, Carol

Darrow, Barbara Bergstrom, Marguerite

Schaffer, Greenberg Margolis & Ziegler,

P.A., Leon Weill & Mahoney, Bessemer

Securities Corporation, a French’ cor-

poration, Compagnie Participations et

A-75

d'Investissements Holdings, S.A., and Com-

puscan, Inc.

THE COURT: All right.

MR. SISSELMAN: Martin L. Sisselman,

your Honor, appearing for Richard J.

Donohue on behalf of United Jersey Bank.

MR. GORRELL: Joseph M. Gorrell, De-

puty Attorney General, on behalf of the

Division of Civil Rights, John J. Degnan,

Warren E. Smith, Venon M. Potter, C.Y.

Alston, Joseph H. Rodriguez, James

Sincaglia, Judith Rodner, Judy Musicant

and also on behalf of Stanley Van Ness.

THE COURT: I'll talk to you about

the Van Ness problem. And you are Mr.

Neufeld.

MR. NEUFELD: Eugene S. Neufeld.

THE COURT: Now--

MR. FISHMAN: Judge, before we start,

there were two defendants, Martin Brody

and Julian Olney, who I don't believe have

A-76

yet been served in this case. I know that

service was attempted at Compuscan, and

they are--

THE COURT: Well, I have a Marshal's

return of service on Brody at 1540 Broad-

way, New York City, a business location,

Marshal's return shows service on Maryann

Worell, identified as a secretary. Now,

whether service on Brody by service--

service on Brody by service to Maryann

Worell, a secretary, is any service at all

is a question that I won't get into, Dut

at any rate, you are not representing

Brody. Isn't that correct?

MR. FISHMAN: I'm not representing

Brody if he has not been served, and it's

my understanding that he has not.

THE COURT: Have you appeared for

‘Brody?

MR. FISHMAN: No.

A-77

THE COURT: Your answer is not an an-

swer for Brody?

MR. FISHMAN: Correct. At the time

it was answered if it was answered on be-

half of Brody, that was my error.

THE COURT: Well, we have had a lit-

tle too many errors in this case, starting

from the beginning about representing peo-

ple who haven't answered, or haven't been

served and things of that sort. So let's

get it down straight and that is the first

thing we are going to do here today, try

to get down straight who represents who.

Let me look at your answer. Your an-

swer was for quite a number of people who

were not served, I noticed that in looking

through the pleadings, including the peo-

ple in France. You answered for

Bambrough, Steinberger, Weiss, Burgin,

Brody, Bailleul, Allen, Frank, Naps,

Olney, Schaffer, Greenberg Margolis, Mil-

A-78

lman, Darrow, Bergstrom, Leon Weill, Bes-

semer Securities, Compagnie Par-

ticipations, and Compuscan.

MR. FISHMAN: Yes, that was my error.

I was told by the secretary of Compuscan

that all those people had in fact been

served, and that I represented every one

of them. I have since found out that they

were not served. The same goes for Mr.

Olney, who was also no longer with Com-

puscan,.

THE COURT: What are you doing, just

dumping the people who are no longer with

Compuscan and still carrying on the de-

fense for the unserved, even foreign de-

fendants?

MR. FISHMAN: The foreign defendants

we do represent, Judge.

THE COURT: Olney was served by serv-

ice in Rye, New York, at his home on his

wife. But you are dumping Olney. Is that

it?

A-79

MR. FISHMAN: At this point, Judge, I

have no authorization.

THE COURT: He was served. Now I re-

ally fail to understand the position that

your office is taking in this matter. You

replied, filed an answer, submitted all

these people to the jurisdiction for all

intents and purposes, they have been sub-

mitted to the jurisdiction, they have on

the surface waived lack of process, be-

cause they are in, they have answered.

And your motion in this matter is on be-

half of all of them.

Now, the return date for the motion

comes and you tell me that you're dumping

the people that don't work for your com-

pany anymore, and you were in error in an-

swering for the unserved defendants, but

you can't tell me whether or not Brody,

for example, was served by service on a

certain secretary at a business location

A-80

in New York. What am I going to do with

this?

MR. FISHMAN: Judge, I don't think

the word “dumping” is an accurate word.

THE COURT: Sorry.

MR. FISHMAN: We are prepared to rep-

resent everyone, and it was only my under-

standing that they had not been served,

that led me to say that if they have in

fact been served and this is the first

knowledge I have that they have been

served, then we are prepared to represent

them and we do represent them.

THE COURT: What about the people in

France, what possible service was made on

them? Are you accepting them and submit-

ting them to the jurisdiction?

MR. FISHMAN: It's my understanding

that Mr. Bailleul, who I'm not sure of his

name, was sent a copy, had been sent a

copy of the Complaint, and he has sent

A-81

back a letter to our firm indicating that

we should represent him.

THE COURT: So you represent him?

MR. FISHMAN: And his corporation.

THE COURT: And he represents?

MR. FISHMAN: CPIH.

THE COURT: All right.

He is submitting to the jurisdiction?

MR. FISHMAN: Yes, Judge.

THE COURT: And who are in question

now?

MR. FISHMAN: I don't believe anybody

is in question now, Judge.

THE COURT: You're going to carry it

for Brody and Olney?

MR. FISHMAN: Yes.

THE COURT: Now, you did not answer

for Leonard, but you brought a motion nam-

ing Leonard as one of the parties rep-

resented, and it's a Rule 12 motion, isn't

it, were you intending to move for

Leonard?

A-82

MR. FISHMAN: Again, Judge, that was

my error, and I apologize to the Court.

We are representing Mr. Leonard only in

the sense that his actions are actions of

Compuscan, Inc., and not in his individual

capacity.

THE COURT: Well, we have a service

on Leonard made in Ridgewood, on his

fifteen-year-old daughter.

Now, Mr. Till --

MR. TILL: Judge, if I may--

THE COURT: Mr. Till prepared an ex

parte order this morning to permit him to

pick it up for Mr. Leonard because of the

problem that Mr. Leonard finds himself in.

Go ahead.

MR. TILL: Your Honor, there was a

subsequent service on Mr. Leonard by his

attorney, that person being me.

THE COURT: Service was made on you?

MR. TILL: Yes, it was. I required--

A-83

THE COURT: The service on Leonard by

his daughter was certainly efficacious

service.

MR. TILL: I think so, and in fact

after that service occurred and Mr.

Leonard does not in fact reside with his

family any longer and has not for some

time, that service--

THE COURT: So it may have been ef-

ficacious.

MR. TILL: Effectively, Mr. Leonard

was not walking away from this lawsuit be-

cause his name was listed and it directed

me to observe all formalities in this

Court, at which point I went to the

Marshal's office and determined that there

was an amended Complaint filed, and within

five minutes, and I went and picked up

that Complaint and I signed on behalf of

Mr. Leonard, so that there is no question

that there has been efficacious service on

Mc. Leonard.

A-84

If I may just go on for one more mom-

ent: In Mr. Fishman's defense, I knew

that the Greenberg, Margolis, Ziegler firm

was representing all the Compuscan de-

fendants, as they might be called in

quotes. I advised them that Mr. Leonard

retained me individually for various rea-

sons, and accordingly, Mr. Fishman and I

did exchange telephone calls and one final

letter which has been annexed to my af-

fidavit submitted to your Honor today.

THE COURT: Yes.

MR. TILL: Certainly we have also

asked to be joined, substantively, in Mr.

Fishman's brief and notice of motion for

dismissal today. I, after obtaining the

amended complaint, fortuitously ran into

Mr. Neufeld in the hallways of this Court-

house and asked if he would accept a

stipulation extending time and the answer,

which I did send out to him, almost im-

—————OOo ert

A-85

mediately, but did not fall into his hands

until sometime on January 25, 1979, for

that I apologize to the Court and maybe

I'm apologizing for the mails, but that is

a problem. I understand he is a busy man

anyway. And to this date, he has not

signed that stipulation. Maybe he doesn't

understand what the stipulation means, as

counsel might understand it to mean, but

certainly we have asked the Court this

afternoon to accept our answer out of

time, and as your Honor can see, if you

would like to see the original answer we

typed up, that still is waiting to be

filed, there is no change to it

whatsoever, so we would hope that Robert

Leonard's interests are represented here-

in, and Pachman, Aron, Till & Salsberg

will continue to represent them.

Your Honor, I'm somewhat concerned

about Mr. Fishman's remarks about Com-

A-86

puscan defendants and conduct while at

Compuscan. My understanding of the sub-

stantive law is there is really no prot-

ection in terms of conduct of corporate

defendants, vis-a-vis their individual

conduct anymore. I would like to suggest

to the Court a particular case that might

be helpful later on in the case. It's a

very very recent case, your Honor, it was

decided, the opinion was filed with the

Third Circuit October 31, 1978, and the

name of the case is Donsco versus Casper

Corporation, and Casper Pinsker, and that

was in the New Jersey Law Journal, your

Honor, 102 New Jersey Law Journal, Page

493, the capsule opinion and the opinion

itself, I don't think it has_ been

published yet, but I have the slip opinion

and would be glad to give it to your

Honor's law clerk.

A-87

It has a disposition of corporate of-

ficers' liability and individuals, vis-a-

vis their respective obligations.

THE COURT: All right. Now, what is

the point that you're making?

MR. TILL: The point I'm making, your

Honor, is that Mr. Leonard, as far as I'm

concerned, based upon the allegations that

were meade in the amended Complaint,

specifically Paragraphs 94, 98 and 99,

totally fail to set forth any facts upon

which Mr. Leonard may be responsible as a

former corporate officer of Compuscan.

Although there are no dates listed in the

Complaint, your Honor, I think Mr. Neufeld

and I could probably stipulate that Mr,

Leonard left the employ of Compuscan,

although remaining as a consultant. Now,

I'm not sure of that fact myself, but he

left the employ of Compuscan somewhere

around July 1, 1977.

A-88

THE COURT: July lst of '77?

MR. TILL: 1977. And Mr. Neufeld

states, effectively, that all of the

activity which he states is a violation of

the Civil Rights Act occurred after that

time, certainly with respect to whatever

Mr. Leonard may very well be responsible

for.

THE COURT: At any rate, we will get

to that. That gets to the merits, the

only thing I'm trying to do is find out

who represents whom, I thought you were

offering Donsco to clear up the matter of

the representing in personal capacity and

official capacity dichotomy which Mr.

Fishman seemed to be getting into. You

represent Mr. Leonard, period. Isn't that

it?

MR. TILL: Yes, Judge.

THE COURT: Isn't that it, Mr. Fish-

man?

A-89

MR. FISHMAN: Yes.

THE COURT: He represents Leonard?

MR. FISHMAN: Right.

THE COURT: Your firm is not carrying

any defense for Leonard.

MR. FISHMAN: No.

MR. TILL: Effectively, Judge, if

there is an order entered by this Court, I

think it should provide and I think I

asked for that in the notice of motion,

the order ought to provide there is a sub-

stitution filed with the Clerk of the Uni-

ted States District Court.

THE COURT: If that is necessary. I

know Mr. Leonard is carried as one of the

persons for whom this motion was made by

the Margolis firm.

MR. TILL: Exactly.

THE COURT: I don't know if that

leads to the need for a substitution, but

counsel should certainly do something to

A-90

clear it up so that Leonard is very

plainly represented by Till and no one

else.

MR. TILL: I think our statements on

the record ought to be sufficient.

THE COURT: I think so. Yes.

Now, Mr. Sisselman, you represent

United Jersey for Mr. Donohue's office?

MR. SISSELMAN: That's correct.

THE COURT: Winne & Banta's office

also appeared and filed an answer for Uni-

ted Jersey. I think Winne & Banta filed

their answer two days before Mr. Donohue.

Isn't that correct:

MR. SISSELMAN: Yes.

THE COURT: WHO represents Mr.

Donohue?

MR. SISSELMAN: Mr. Donohue. Winne &

Banta, their answer may be considered

withdrawn. They were the personal counsel

for the bank and Mr. Donohue is actually

continuing the defendant.

A-91

THE COURT: And Winne & Banta have

nothing whatsoever to do with this matter?

MR. SISSELMAN: Not at this point.

THE COURT: Except as they may be

advising on a personal basis their client,

the bank. Is that it?

MR. SISSELMAN: That's correct.

THE COURT: But they are not in this

case now, I think that ends the private

defendants. Let me see if it does. All

right. All of the private defendants now

are represented. We have one problem, the

public defendants.

Mr. Gorrell, you say you're in this

for Mr. Rodriguez and Mr. Van Ness, as

well as the other public defendants?

MR. GORRELL: That's correct.

THE COURT: I have not been able to

procure from the Marshals, although I was

told as late as two o'clock, that I would

have it sometime today, the Marshal's re-

A-92

turn of service of the amended Complaint.

Neither Mr. Rodriguez nor Mr. Van Ness

were named defendants in the amended

complaint--in the initial Complaint. They

were joined and named in the amended Com-

plaint.

MR. GORRELL: Yes, that's correct.

THE COURT: So I don't know when they

were served with their first paper. When

or whether they were served with their

first paper. In any event, I don't see

any answer from Mr. Van Ness.

MR. GORRELL: Your Honor, there was a

letter, there is no answer filed, but Mr.

Van Ness joined in the motion to dismiss.

THE COURT: Yes.

MR. GORRELL: Do you have that?

THE COURT: Yes. Oh, yes.

MR. GORRELL: All right. It's my

understanding of the Federal Rules that

previous to filing an answer--

A-93

THE COURT: It's a Rule 12, and you

can make that sort of motion prior to an-

swer, yes.

MR. GORRELL: Yes, so my intention

was to file a motion to dismiss on behalf

of Mr. Van Ness and I attampted to do

that, in my letter: of December 19, 1978,

which was addresed to Ms. Lidell, the De-

puty Clerk. Do you have a copy of that?

THE COURT: No. I'm sorry, I haven't.

MR. GORRELL: I can provide that to

you. Basically, what happened was that on

the afternoon, I believe, of the day that

we filed the notice of motion on behalf of

the other defendants, our office was

notified that we were to represent Mr. Van

Ness as well, and we were in contact with

Mr. Light, who is the--who is the law

clerk to Judge Meanor.

THE COURT: I don't have the amended

motion to dismiss. Not a letter to Ms.

A-94

Lidell, I have an amended motion to dis-

miss, 12-20 with an affidavit of service,

amending your motion to include Stanley

Van Ness.

MR. GORRELL: Yes, what I'm referring

to, there was a cover letter sent with the

motion.

THE COURT: I see. Well, that I

would not know about.

MR. GORRELL: Right, and that, I had

assumed would be forwarded to--well, at

the time Judge Meanor was handling the

case, so I imagine that I had assumed that

Judge Meanor would have seen that, it

would have been sent to him.

THE COURT: All right. It may be

that your amended motion on behalf of

Stanley Van Ness was out of time. I have

no way of knowing that because I don't

know when Stanley Van Ness was first

served with the amended Complaint and have

A-95

no way of determining that, but at any

rate, you are in the case for Stanley Van

Ness.

MR. GORRELL: Yes, your Honor.

THE COURT: And there would be no

question about the Court's authorizing a

late appearance for these defendants. I

don't know if that applies as well to Mr.

Rodriguez, that is my observations about

it may have been out of time. You had ex-

tensions of time for the other defendants,

not for Mr. Rodriguez, but in any event,

you're moving for Mr. Rodriguez, and have

made this motion on behalf of all of the

public defendants?

MR. GORRELL: That's correct.

THE COURT: All the public de-

fendants, except Rodriguez and Van Ness

have answered. Isn't that correct?

MR. GORRELL: No, motions to dismiss

were filed on behalf of all of them.

A-96

THE COURT: I beg your pardon, ex-

tensions of time and you filed your motion

instead of answers?

MR. GORRELL: Yes, in each case I

filed a motion to dismiss rather than fil-

ing an answer.

THE COURT: Now, Mr. Neufeld, do you

have any problems about who is represented

and who is representing the defendants?

MR. NEUFELD: As long as the Court

accepts the representations, unless there

is a need for verification as to agencies

from the foreign--

THE COURT: No, counsel says he is

appearing for them, he is appearing for

them.

MR. NEUFELD: Okay, because’ the

Situation that occurs now occurred a year

and a half ago that caused this whole mat-

ter using my name.

THE COURT: I'm aware of that.

A-97

MR. NEUFELD: I would like to know if

there would be a clarification as to the

28 USC 636 and Rule 40 of the local court.

THE COURT: What is that?

MR. NEUFELD: Concerning motions to

dismiss and the authorities of the Mag-

istrate because I think the Fifth Circuit

had a ruling--

THE COURT: This is the Third Circuit

and this matter has been referred to me

and I don't think that you have much room

to question it, but the rules and the

statutes do give you your directions for

objecting to the report and recommendation

that will be made, and you will follow

these rules and these statutes.

MR. NEUFELD: Yes.

THE COURT: I do not at any time

adivse counsel or litigants as to the law,

nor do I ever clarify the law for counsel

or litigants. It will be up to you to do

that as your study directs you.

A-98

Now, I just have two questions that I

would like to ask of you, Mr. Neufeld, to

assist me in clarifying the matter that I

have to consider. In the papers that you

filed, the exhibits in connection with

your Complaint and your appendix in sup-

port of your brief in answer of this mo-

tion, would you tell me whether I'm cor-

rect that the appendix to your brief, Page

28, is the Complaint or the outline of the

Complaint, which you had intended to file

with the State Division of Civil Rights?

MR. NEUFELD: Yes.

THE COURT: Is that the paper that

you claim to have had with you on the 17th

of February, and which you were, according

to your papers, not permitted to refer by

Miss Spann?

MR. NEUFELD: This is a typed copy,

the other one was handwritten. I have the

other one,

A-99

THE COURT: But this is the contents?

MR. NEUFELD: Yes.

THE COURT: And it was this Complaint

that you tried to--

MR. NEUFELD: Utilize, yes.

THE COURT: All right. Page 30 of

the Complaint--of the appendix, I beg your

pardon, is apparently a typed copy of the

pre-interview form. The pre-interview

form is attached to the Complaint?

MR. NEUFELD: Yes.

THE COURT: Is there any reason that

should be brought to my attention why this

Page 30, typed paper, is included? Does

it in any way change the handwritten orig-

inal that is part of the Complaint?

MR. NEUFELD: No, it was just for

clarity, as a matter of visual con-

venience,

THE COURT: All right. Thank you.

Another question that I had is your Page

A-100

26 of the amended Complaint, a handwritten

paper concerning filing with the New

Jersey Division of Civil Rights.

Would you tell me what this is,

please?

MR. NEUFELD: 26 of the amended Com-

plaint.

THE COURT: Page 26 of the amended

Complaint. Could you tell me what this

is?

MR. NEUFELD: Is that concerning fil-

ing with the New Jersey Division on Civil

Rights?

THE COURT: Yes.

MR. NEUFELD: Oh, this is just sort

of a chronological summary of what hap-

pened.

THE COURT: This is not a paper that

you had attached to your EEOC Complaint,

is it?

A-101

MR. NEUFELD: No, no, this is some-

thing that probably went to another

federal agency as a one-page summary that

I recopied indicating the sequence of

events.

THE COURT: All right.

MR. NEUFELD: It's sort of a syn-

opsis.

THE COURT: All right. It's not--it

was not intended to be part of your EEOC

Complaint?

MR. NEUFELD: No, no. It sub-

sequently was submitted in tremendous com-

munications with the EEOC trying to get

administrative relief on the particular

problem. This particular page, and its

content was included in submissions, but

it wasn't part of the initial EEOC Com-

plaint.

THE COURT: You believe that it was

later submitted to them in--

A-102

MR. NEUFELD: Oh, I did, yes, I did

later submit this to them in attempting to

get them to make the administrative de-

cision to grant me the - appropriate

jurisdiction.

THE COURT: Who filed first, the

State?

MR. GORRELL: Yes, your Honor.

THE COURT: All right. I have read

the State's brief. If there are any mat-

ters that you feel you would like to ex-

pand on, this is your opportunity.

MR. GORRELL: Yes, your Honor.

THE COURT: But please remember that

I have read the brief.

MR. GORRELL: Yes. There are a

number of cases which I would like to

bring to your attention, which are not

included in the brief. And they relate to

the issue of immunity, what has been ter-

med quasi-judicial immunity and it's our

A-103

contention that in refusing, or not filing

a formal complaint on behalf of Mr. Neu-

feld, the Division of Civil Rights was

acting in its quasi-judicial capacity, and

was immune to a suit under 1983. The cas-

es I wish to bring to your attention are

C.M. Clark Insurance Agency versus Max-

well, 479 F.2d, 1223. DC Circuit, 1973,

in which it was held that the chief ex-

ecutive officers of the Department of

Insurance of Pennsylvania was absolutely

immune from a suit under Section 1983.

Silver versus Dixon, 403 F.2d, 642, Ninth

Circuit, 1968, cert denied, 394 US 990,

1969, in which it was held that Parole

Board officers acting in their quasi-

judicial capacity were absolutely immune

from 1983 suits.

THE COURT: Now, the issues of immun-

ity are not really contained in your brief

in any detail, Mr. Gorrell, isn't that

correct?

A-104

MR. GORRELL: Well, there is an im-

munity argument made, but it's not gone

into in great detail. That's correct.

THE COURT: Well, I do think that if

you intend to supplement your brief, and

raise these issues, as I certainly believe

they should be raised, you should submit a

supplementary brief and afford to Mr. Neu-

feld the opportunity to respond. This

does seem to be new matter, although you

have touched upon it, it's certainly not

part of the basis of your motion as it

sits before me today.

MR. GORRELL: Yes, your Honor, I

would be pleased to do that. Need I file

a motion for filing a supplementary brief?

THE COURT: No, no. We certainly

want all of the issues disposed of at one

time. That is, the issues that would

ordinarily be made in the Rule 12 motions.

A-105

MR. GORRELL: All right. I'll do

that, your Honor.

THE COURT: Now,if you're just talk-

ing about the quasi-judicial immunity that

may or may not be afforded to Spann and

Alston, Spann is not a party defendant, I

understand.

MR. GORRELL: That's correct.

THE COURT: That is one thing. If

you're talking about immunity under the

Eleventh Amendment, as you may be, for

some of these named defendants, I would

appreciate having briefs on that.

MR. GORRELL: No. I was not talking

about Eleventh Amendment immunity, I was

talking about quasi-judicial immunity, the

1983.

THE COURT: Then you're not using any

Eleventh Amendment immunity arguments in

favor of Degnan, Potter or Rodriguez, who

are sued as chairmen or leaders--and Van

A-106

Ness? Have--what are they, they are

cabinet members, aren't they?

MR. GORRELL: Van Ness is a cabinet

memeber, yes. The Director of the Divi-

sion on Civil Rights, Mr. Potter, formerly

the Director, is not a cabinet member.

THE COURT: What about Mr. Van Ness?

MR. GORRELL: Mr. Van Ness iS, yes.

I did not mean to say that I'm not relying

on that. I was just saying in citing the-

se particular cases I was not making that

argument at the time.

THE COURT: All right. Yes.

MR. GORRELL: But perhaps the wisest

thing would be to submit it.

THE COURT: If you're using the Ele-

venth Amendment, you ought to dispose of

that issue at this time. Let's put it

altogether instead of ticking it off a

little now and a little later.

A-107

MR. GORRELL: All right, your Honor.

I would like to briefly review some of the

facts in the case just to set the stage.

As Mr. Neufeld indicates in his brief, he

was hired in January of 1977. He super-

vised several employees, including an em-

ployee named Ms. Margaret Lee, who, accor-

ding to Mr. Neufeld's Complaint on June l,

1977, threatened to file a discrimination

complaint against Compuscan and against

Mr. Neufeld. Now, in fact, she did file a

discrimination complaint on June 30, 1977.

Now, sometime around this time, as far as

can be told in the initial complaint, Mr.

Neufeld states he was dismissed instantly

when he was informed about the threat of

Miss Lee's complaint and he seems to indi-

cate it was sometime in June, although he

seems to have all taken a different posi-

tion later on that he was fired in August.

Now--

A-108

THE COURT: And there is also a dif-

ferent position, at least in one place in

the papers, where September 4th is taken

as the date as the cutoff date.

MR. GORRELL: As far as I can tell,

what happened was when he went to the

Division on Civil Rights in February of

1978, as I can best piece it together, he

was told he was out of time and I think he

might have tried at that time to raise the

September 4th date. I have a feeling that

is where that enters into it, but I don't

think that is very important at this time.

THE COURT: There is a factual prob-

lem, is there not? About the date of Mr.

Neufeld's termination of employment with

Compuscan?

MR. GORRELL: Yes, there is, there

certainly is.

THE COURT: It could be sometime in

June, it could be sometime in August, or

A-109

it could be September the 4th. Isn't that

so?

MR. GORRELL: Yes, that's correct,

and obviously we can't take care of that

problem at this time.

THE COURT: No, we can't,

MR. GORRELL: In any case, Mr.

Neufeld--

THE COURT: For purposes of argu-

ment, are you prepared to take one of

those dates?

MR. GORRELL: I'm prepared to say

that when Mr. Neufeld came to the Division

on Civil Rights he indicated that he was

fired on August 19th, as is indicated in

his own appendix.

THE COURT: Is there anything in the

complaint that he attempted to file that

indicates that? Pre-interview form?

MR. GORRELL: I don't think the pre-

interview form itself does. If you will

give me a minute.

A-110

THE COURT: If we are going to talk

about facts, we have to only talk about

facts that are indisputable.

MR. GORRELL: That's correct. I

don't think, very honestly, that we can

say that it's an indisputable fact that he

was fired on August 19th. Very frankly--

THE COURT: Do you take the position

that it can be said that it's an indisput-

able fact that he told Miss Spann that he

was fired on August 19th?

MR. GORRELL: I think it's an

indisputable fact there was a calculation

done when Mr. Neufeld came to the office

on February 17, 1978, and the calculation

by the employee of the Division was that

he had filed, he had been fired one

hundred--he had been fired one hundred

ninety-two days prior to--prior to coming

to the Division of Civil Rights, excuse

me, one hundred eighty-two days.

A-111

THE COURT: All right.

MR. GORRELL: That much I can say.

Whether the effective date was somewhat

later, as it appears now--

THE COURT: But you really don't know

where the person who made that computation

got the information from?

MR. GORRELL: I can only assume, the

only place the person could have gotten it

from is Mr. Neufeld. Now, at the time, I

think it's an indisputable face that Mr.

Neufeld was told that he was out of time,

THE COURT: Yes,

MR. GORRELL: And 1 don't think there

is any question about that.

THE COURT: I think Mr. Neufeld would

agree that he was told that he was out of

time. Isn't that so?

MR. NEUFELD: Yes,

MR. GORRELL: And I believe he was

also told, I don't think there is a ques-

A-112

tion he was told he did not have a cause

of action in this against Compuscan. Now,

the question is whether--well, the

plaintiff contends that because he was not

served with the Cobb and the Lee Com-

plaints in the Division on Civil Rights,

that he was somehow prejudiced, and it's

our position that Mr. Neufeld was erro-

neous in that belief. In fact, he was de-

prived of nothing by not having been

informed of the complaints, and the inter-

rogatories as well. There is no cause of

action under the New Jersey Law against

discrimination if an individual is fired

because he has been charged with dis-

crimination.

If, for example, Mr. Neufeld had

filed the complaint with the Division and

subsequently been fired, then of course he

would have been covered, but there is no-

A-113

thing in the statute which says that if

somebody is charged with discrimination

and is subsequently fired, as Mr. Neufeld

was alleging, that he has a cuase of ac-

tion. Therefore, the fact that he

wasn't informed of that, that a complaint

had been filed against him, has_ no

significance, it's immaterial, it did not

affect his rights in any way. Apparently,

Mr. Neufeld did not understand this.

Now, I raised the June djate because

Mr. Neufeld does say in his complaint that

at that time, a complaint by an employee

was made against him and he seems to indi-

cate at this time in his brief that at

that time he was opposing practices

forbidden by the law against dis-

crimination and that would be covered

under the law against discrimination and

in fact, if he had come to the Division

and explained that he probably would have

A-114

been able to file a complaint, had it been

in time.

My point as to his knowledge in June

is that Mr. Neufeld, if in fact he was op-

posing practices under the act and he felt

he was being discriminated against, he

could have filed the complaint at that

time. He did not. The fact that he was

charged formally in a complaint, has no

significance at all. Now, furthermore,

Mr. Neufeld had a cause of action, not a

cause of action, but if he was felt ag-

grieved by the fact that the Division on

Civil Rights did not process his com-

plaint, he had a route which he chose not

to do, he could have simply filed an ap-

peal with the Appellate Division, Super-

ior Court in New Jersey, claiming that

there was a final decision, that a com-

plaint had been filed, or the Division had

not processed his complaint and he could

A-115

have asked the Court to order the Division

to file that complaint. He did not.

Now, even assuming that Mr. Neufeld

could have filed a complaint in the Divi-

sion on Civil Rights, that something was

wrong, as I indicated before, in the--

since in the sense that the Division was

acting on a complaint filed by him, there

was quasi-judicial immunity. The Division

was making a judgment just as this Court

can make a judgment that Mr. Neufeld has

not filed a complaint upon which relief

can be granted. In effect, what the Divi-

sion was saying is, “You don't have a

cause of action." And in that sense, it

was acting quasi-judicially. Under 1983,

no cause of action is found. Very simply,

the Division in no sense refusing or not

serving the complaint, in no way affected

Mr. Neufeld's rights. That is serving the

Lee and the Cobb complaints. Mr. Neufeld

A-116

is grasping at straws. He feels aggrieved

somehow and he is trying to bootstrap his

feelings into a civil rights complaint

which simply doesn't exist.

Now, as to his further allegations in

which he seems to claim that he was denied

some right to discovery, after his attempt

to file a complaint, again, in no sense

was Mr. Neufeld prejudiced. He, the Cobb

and the Lee complaints, as Mr. Neufeld

will agree, were disposed of without any

prejudice to him. He was given copies of

the Cobb and Lee complaints and several