# Petition — Neufeld v. Bambrough > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0635%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 461 U.S. 915 ## 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. iv 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 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 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 1] 14 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 vi 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. 2 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 3 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 4 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- 5 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). 6 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.” 7 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). 8 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. 9 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, 10 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- 1] 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 12 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- 13 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. 14 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. 15 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 —”. 16 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- 17 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. 18 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) 19 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 20 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. 21 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.” 22 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. 23 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. 24 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 ii 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 Ve BRUCE BAMBROUGH, etc., et a l. 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) OO 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 Ve 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 By 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 by 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 Ve 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, by 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 Ve 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. 9. 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 Ve 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 Compu [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0635%3A1. Public record. Not legal advice.