Petition — Falkowski v. Perry

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Office - Supreme Court, U.S.

82-1974 riLes

| MAY 25 1983

—— nn

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

No.

EVELYN FALKOWSK .

Petitioner

BERTRAM N. PERRY.

Respondent

and

LOWELL W. PERRY. etc. es al.,

(Equal Employment Opportunity Commission),

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

Evelyn Falkowski. Pro se

2501 N. Kenilworth St.

Arliagton, Virginia 22207

Of Counsel: (703) 534-4270

Owen Perry, Fsq.

3000 Town Center

Suite 2121

Southfield. Mich. 48075

Edward Owen Falkowski, Esq.

P.O. Box 18

Fayetteville, Tenn. 37334

QUESTIONS PRESFNTED FOR REVIEW

l. Where failure of gOoverninent to hear

Or insure initial legal defense to Supervisor

sued as an agency Official contributed to her

Subordinate's Prevailing, should resulting

final judgment be vacated?

2. Should decisions tainted by unresolved

conflicts of interest of counsel be vacated?

3. Do certain representations to Courts

constitute fraud upon the Courts such that

these Opinions Ought to be vacated?

4. Does appellate nullification without

publication, of falsely Stigmatizing pub-

lished decisions, deprive of due process?

5. Where District Court fee decisions

find on the nerits of untried cases, and

record shows bias, should this Court vacate

affirmance and order remand for decisions

by an impartial tribunal?

(1)

TABLE OF CONTENTS

SNUBS OF AUTHORITIES... cence cath ewes eee ii

OPINIONS BELOW..... PO ROead ec eeeetoeneses cena

JURISOICTION. « csecces Pete ee OCR OH ERO OO Oe 4 6

Swe gee ek gg ee 7

STATUTES INVOLVED... ccsccces ne rr 7

Ee eg ga Or ee rarer oar See bee tees 8

REASONS FOR GRANTING Sum WRIT. sce re &

Government's initial failure to provide

hearing or legal defense to supervisor

sued contributed to finding that her

subordinate prevailed

Nullification of false stigma by unpub-

lished Opinion deprives of due process

Findings on merits of untried cases

violate due process

ONIEUE COU LGU Gb Ghee cee ee endo seu ee aa es «Si

APPENDIX A, District Court ‘Opinion

Perry ¥. Golub, 25 EPD 431,488 (1981)...la

APPENDIX B District Court Opinion

Falkowski v. (Lowell Perry, unpublished.82a

APPENDIX C District Court Opinion

Permitting Voluntary Dismissal,

Perry Vv. Falkowski, unpublished........ 122a

APPENDIX D, Opinion of the Fifth Cir-

cuit, Perry v. Golub/Falkowski v.

(LOwOLi) POrry C1979) weeccss bedeeeuseekh aaa

APPENDIX E, Excerpts, Report Erom the

Justice Department to the Committee

on the Judiciary of the U. S. Senate...129a

APPENDIX F, Petition for Rehearing.......135a

APPENDIX G, Opinion of the Eleventh

Circuit, Perry v. Golub, Falkowski v.

(Lowell) Perry, and Perry v. Falkowski

Bk OE a ae ke

PreGmutn BH. FORt,. €2 UEC $1888... aw cecnss 1400

APPENDIX I, Exemptions/Recordings........l142a

APPENDIZ J, Shepard's Citations. .. cee. +l46a

APPENIDX K, EEOC Opposition to this

COG Ws PEPE eeR i cee cacecc htc euncnend dle

(33)

CASES PAGE

ARIZONA V. CALIFORNIA, 103 SCt 1382

Co EE a ee 47

ARNETT V. KENNEDY, 416 U. S. 134...+.46.. 28

BOARD OF REGENTS V. ROTH, 408 U.S. 564

Bc 9 aia om ate en rope Ore a 45

CITIZENS CONCERNED FOR SEPARATION OF

CHURCH AND STATE V. CITY AND COUNTY

OF DENVER, CA-10, 30 FR Serv 2d 315

OE ee ee 14

CODD V. VELGER, 429 0. S. 624 (1977)....46

DAVIS V. PASSMAN, 442 U.S. 288 (1979)...47

FALKOWSKI V. LOWELL PERRY. App.B, 82a. Passim

FALKOWSKI V. LOWELL PERRY, 464 FS 1016 Passim

FALKOWSKI V. LOWELL PERRY, 594 F.2d 861

*HALL V. SMALL BUSINESS ADMINISTRATION,

GOS F. 26 175 (CAS SSS). cece eee eenee 29

*HAZEL-ATLAS GLASS CO. V. HARTFORD-EMPIRE

CO.» 222 Use Se 230 (IFES) co cvesessvece 41

JAMES V. STOCKHAM VALVES, 559 F.2d 310

TUR F Ae edsecarenss Seco een eee nee eens 39,40

JOINT ANTI FASCIST REFUGEE COMMITTEE V.

MCGRATH, 341 UcGe. Ldscsccrncvscsseceses 43

KUSH V. RUTLEDGE, 103 SCt 1483 (1983)..7, 17

LINCOLN V. BOARD OF REGENTS, UNIVERSITY

SYSTEM, GEORGIA, 697 F. 2d 928 (CA-11

ee a

LITTLE V. SOUTHERN ELECTRIC STEEL CO,

S595 F2d 998 (CA=5 1979)... eeeceees ecceedd

(243)

Mo@moe Ve. UNITED AIR LINES, INC., coc. eossha

ae Bee Veeeeee, US GE 11 (1982)..... Passim

PERRY V. GOLUB, 400 FS 409 (1975)...... Passim

PERRY V. GOLUB, 74 FRD 360 (1976)......Passim

PERRY VY. GOLUS, 464 FS 1016 (1978)..... Passim

PERRY V. GOLUB, 594 F2d 861 (1979)..... Passim

PERRY V. GOLUB, 25 EPD 431,488 (1981)..Passim

RODGERS V. UNITED STATES STEEL CORP.

We Oe ek ecanucancesecs 47

ROGERS V. EEOC, 454 F.2d 234 (CA 5 1971)...47

SOUTHERN MUTUAL HELP ASSOCIATION V.

meoneme, O78 P20 SiS (CA DC 1977)... eee. 47

*TRAFFICANTE V. METROPOLITAN LIFE INSU-

meee See SOF OLS. 205 C1STS) occ ccwwcnss 47

GU. S. &% REL BONNER, 78 FRD 344 (1978)..... 41

*UNITED STATES V. HAMBURG-AMERICAN S.S.

ree BoP Uo. SOR CERIS) once cccncnecccens 49

*UNIVERSITY OF TEXAS V. CAMENISCH,

BOR Ce Ce FANE) oe ccteccececenceces 49

*UNITED STATES V. UNITED STATES GYPSUM CO.

Pewee) Fee OD. SE. Gos oc sec ws Cohen bheeees 32

WISCONSIN V. CONSTANTINEAU, 400 US 433

eg enn ne -eeees 46

"woo ©. GEOMGTA, 370 G. S. 375 (1981)......29

STATUTES AND RULES:

PLECe @mencments to Conétitution.......ceess 7

Pires Meencment to Constitution......cccocee?

Title VII §§717a and 704a, 42 USC §2000e....8

CiVii Rights Act of 1971, 42 USC $1985......8

(iv)

PAGE

Bpsevencn Circuit, Rules 21 and 25....cec- 45

Mee © POGOTEL PEAGCEIGCO 7. wc cece ccc ncnn 32

OTHER AUTHORITIES

Professional Responsibility Report of the

Joint Conference, 44 ABAJ 1159 (1958)...... 28

I Oe Is oc hd iw wea cc neckccevecca

Bc vc ba wa cawecccdecus 42

Captain Dreyfus, Oy Nicholas Halasz.....ceccs 42

A Federal Court in the Northern Di

departed from the usual co

cial proceedings. It found, in a deci-

W m

arding fees, that a Federal en

the Court had mooted, without tr

Ployee's lawsuit, simultaneously denying as

@ sanction an agency petition to fire him.

Perry v. Golub, 74 FRD 360 (1976). The pub-

lic-interest, as will be shown, warrants this

vourt's exercising its power of supervision.

eals the Eleventh Circuit

decision on Perry v. Golub (App. A, la). Un-

published and noted "Affirmed in Part, 691

F.2d 510 (CA#-ll 1982). it left false stigma

unrelieved. She appeals unpublished affirm-

ance of Falkowski v. (Lowell) Perry (App. B,

Sea). Decisions awarding attorney fees in

Doth cases deny due process by resolving on

the merits issues not before the Court.

She appeals a related decision by a dif-

ferent Court, Perry v. Falkowski (App. C,

l22a), because it was. constrained by vacated

decisions in Perry v. Golub (A, la). This

prevented record correction for Petitioner.

In earlier unpublished Opinion, April 25,

1979 (App. D, 133a) the Fifth Circuit ruled:

"The district court correctl

these actions witnout prejudi

count of mootness. The effec

dismissals was to vacate all

proceedings so as to spawn no

ces. The adjudication of moot

inated all pendi oe controversi

left the court without jurisdi

enter those Bee one of the injuncti

Orders restricting future actions of the

parties in either case. The orders of

dismissal, without prejudice, are af-

firmed, but the protective Pile stl or

injunctions are vacated. FFIRMED AND

VACATED." (Unpublished, “ reported

Perry v. Golub, 594 F.2d 861 and Fal-

kowSki v. Perry, 594 F.2d 862,"Affirmed

and Vacated.")

a ae

e o

2 Ie

The District Court departed from the fo

going law of the case when it assessed fee

against the U. S. Equal Employment Opportunity

Commission (EEOC) of $99,331.90 to Bertram

rerry, by finding in Perry v. Golub, 25 EPD

131,488 (1980) that ne prevailed in 1975 as

a whistle blower against EEOC, for reporting

his then supervisor, Petitioner, to a U. S.

Attorney. In the fee award, the Court said:

"It has never been contended that the

Court of Appeals' decisions had any

arguable effect on this Court's 1975

decision..." [App. A, 15a, (referring

to preliminary injunction based on

"whistle blower" status), 400 F. Supp.

409)].

nflict with prevailing sta-

e, the Court

Citioner,

LOns, Was

red

published (App. B, 82a) ].

titioner had to personally defend from

two lawsuits by Perry and litigate to save

her employment because of false accusations

by him. Her time burden was at least triple

that of Perry's counsel, since Perry was not

Sued.

_The government, which routinely defends

—

others sued in official capacity, according

to report from the Justice Department to the

Committee on the Judiciary of the U. S.

Senate (Excerpts, App. E, 129a), did not

defend or even hear her on Perry's charges.

In contrast, Bertram Perry, throughout

years of litigation, received free legal

defense from a lawyer renowned (App. A, 68a)

and known as a critic of EEOC "fishing ex-

peditions" who defends employers charged

before the Office where Perry works.

Documents called to the attention of

Courts below, as well as unrefuted tes-

timony, make manifest conduct by the

"whistle blower," including deception

3 } i

chizophrenic con-

duct by Petitioner, including claim that

Wnile confused and disassociated from re-

was her gional Director, Robert J

= ~

Petitioner threw paper at him (Perry).

Bertram Perry concluded that the irrational

purported conduct was because of Petitio-:

ner's intense jeolousy and hate of him

Pane or . 4 1

(eke A, Se) 1.7 j

1 The tale concocted by Perry came about

as follows: Perry had insulted Petitioner,

then his supervisor, in the presence of a

Mouse guest of Petitioner visiting in her

office. The guest was shocked and wrote an

account of Perry's behavior, but mistakenly

referred to him as Mr. Jeffrey (whose name

Petitioner had also mentioned as that of her

Supervisor). Perry sent a version of the

incident to Mr. Jeffrey (who later told

Petitioner Perry found the witness's state-

ment in the copy machine).

Perry mixed a false tale of insane actions

by Petitioner with false tales of stupid acts

by her, throwing in a story to cause her su-

pervisor to suspect that she was in forbidden

communication with Commissioner Ethel Walsh.

Petitioner's counsel raised to the District

Court the seriousness of Perry' report, and

the implications of her Supervi sor's not in-

vestigating the report of ail eged insanity.

The court thereafter published against Pet-

itioner that she threw paper at Perry based

On Jeffrey's proposed charge against her

"documented" solely by that report (Ex A, 52)

from Perry, who did not testify.

Also manifest in the record, in addition

to testimonial proof, is documentary evidence

of insubordination [for one example, see

copy of letter from Perry to Petitioner, his

Supervisor, in record underlying Perry v.

Golub, 96% FPS 1016, 1978 (Ex. B, 68).

Petitioner's side (Excerpt, Ex C, 72)

is untold in Opinions.@

Fee Opinions violate due process and

law pertaining to moot cases as will be

shown.

JURISDICTION

On 25 October 1982 the Court of Appeals |

denied petitioner's appeals. tApo. G, 137a).

It denied a timely petition for rehearing

on 26 January 1983 (App. F, 135a). Mr.

Justice Powell granted enlargement of time

through May 26, 1983. Jurisdiction of this

€ EEOC proposed to fire Petitioner and

Bertram Perry, in November 1977. The Court

had dismissed their actions but retained

Jurisdiction. Petitioner filed answers to

the proposed charges with the Court. She

later referenced in her testimony her ans-

wers. Excerpts (Ex C, 74) include:

",..My predecessor also was forced to seek

to remove Perry. My predecessor is Black,

and I had successfully directed an integrated

office, so Perry's charges of racism against

me certainly would seem to be spurious...."

Court is invoked under

States Code, Section

overnment to near

1. Where failu z

or insure initial legal defense to supervisor

Sued as an agency official contributed to her

Subordinate's prevailing, ‘should resulting

final judgment be vacated? .

2. Should decisions tainted by unresolved

conflicts of interest of counsel be vacated?

3. Do certain representations to Courts

constitute fraud upon the Courts such that

these Opinions ought to be vacated?

4. Doés appellate nullification without

publication, of falsely stigmatizing pub-

lished decisions, deprive of due process?

5- Where District Court fee decisions

find on the merits of untried cases, and

record shows bias, should this Court vacate

affirmance and order remand for decisions

by an impartial tribunal?

LAWS AND STATUTES INVOLVED

Fifth Amendment to Constitution: No person

shail...be deprived of life, liberty, or pro-

perty without due process of law; nor shall

private property be taken for public use

without just compensation.

First Amendment to Constitution: Congress

Shall make no law... abridging the freedom

of speech...or the right...to petition the

Government for a redress of grievances.

UivVal Rients Act of 1971. 42 USC 1985:

Conspiring to deprive of office or deter

from testifying unlawful. (Text in App.

BR. 14804).

aaG.e Vil of the Civil Rights Act of 196%.

as amended, 42 USC 2000e:

g704(a) It shall be an unlawful employment

practice for an employer to discriminate

~++ because he has opposed any practice

made an unlawful employment practice by

this title, or because he has made a charge,

testified, assisted, or participated in

any manner in an investigation, proceeding,

or hearing under this title. [As amended

March 24, 1972, 42 USC §2000e3(a).]

9717(a) All personnel actions affecting

employees or applicants for employment...in

executive agencies...shall be made free from

any discrimination based on race, color,

religion, sex, or national origin. [As added

March 24, 1972, 42 USC $2000e16(a).1]

STATEMENT

1. Background:

Petitioner, a civil libertarian since

youth, was among the first to openly oppose

racial segregation in Alabama, years before

the enactment of Title VII.

In 1955, she received threats onh

ering a newspaper article which de-

rs)

earned her the epithe

BLGcn,” and @ place in the files of t)

in Birminghan.

In 1968, Petitioner began working for

’ 5 5

EFEOC in Birmingham, followed.six months

later by Bertram Perry, first an admired

e Ss

in April 1971, Petitione

Oltice in Mississippi, a location

by five men before she requested it. After

her one year commitment to that location,

She unsuccessfully bid on openings in Bir-

mingham, including at lower grades, to end

660 mile round trip flights each weekend to

her husband and children.

In November 1973, she led suit in

Alabama against EEOC because of disparate

treatment, including her inability to trans-

fer back to Birmingham, because of sex.3

3The one other female of 100 professionals

hired there was a GS-7. In EEOC's Atlanta

Region, the only female of 40 managers or

supervisors selected was Petitioner, who

took the Mississippi territory.

ears won

an award for performance during her tenure.

In Alabama, Bertram Perry continued as Depu-

ty Director. He had Petitioner's full sup-

port until his harsh treatment of employees'

and his defiance of her direction required

corrective action by her.

Petitioner recommended various plans for

correcting Perry's conduct, including the

hire of a temporary consultant, and pro-

gressive discipline. These recommendations

never won approval of her Regional super-

visors, who are of the same race and sex as

Perry.

Perry's treatment of Petitioner became

overtly racist, sexist, and defiant, while

he covertly called her a crook.

(Evidence that Perry attacked her directly

to certain employers came belatedly to Peti-

tloner. Examples of his accusations are

Shown by:

(1) A 1977 letter from an employer who

Said Perry had told him Petitioner was

forced out of EEOC's Jackson Office and had

Slapped a black man. (Both accusations are

totally false. The Jackson office won

—

an award during her tenure.

(2) In deposition in this record Perry

ha 6 pe ee a4 Seo TO

WVLTCCTLOP AOLIOWGLL (in iy

Said Regional

met with him secretely (while he was Peti-

—

tioner's Deputy) and asked him to gathe

evidence regarding his claims about her

allegedly improper determination against an

employer. (March 1980 deposition Tr. 121).

Perry said he went to the employer].

Petitioner, isolated as a female EEO

manager in the South, was vulnerable beyond

her understanding in'‘1975.

In June 1975, unaware of Perry's secret

representations, Petitioner was awaiting ap-

proval from her Regional Director in Atlanta

to issue charges to Bertram Perry. Perry

had responded to a request from Petitioner

for coordination on performance appraisals,

by calling her filthy, threatening to have

her put in jail, threatening (without expla-

nation) to report her to the U. S. Attorney,

and subjecting employees to a tirade of rage.

(Defiant conduct by Perry had also been

reported by her predecessor as documented in

this case). Petitioner, hoping Perry's be-:

havior might be modified by penalty, recom-‘|

mended he be required to refute her charges

or be demoted.

Response to Petitioner's request for appro-

val to initiate disciplinary action against

Perry was swift. Her supervisor, without a

warning or a hearing, withdrew Petitioner's

authority as District Director. He divided

most of her duties between his Deputy and

Perry. He announced removal of her authority

to her staff, and gave Petitioner "queries"

to answer. This was six months after Petitio-

ner returned to Birmingham after a settled

Title VII suit, over the objection of this

Supervisor. (Ex D, 75).

The "queries," with answers and documents,

Showed the Regional Director had been misled.

For example:

"Query 1, p. 1. Since right-to-sue

issued 9/24/74 and suit filed 12/26/74

which usually terminates process, why

did EEOC processing continue?

ANS. I Gid not take office in Birming-

nam Until 11/8/74.

a. Why was an investigation renewed?

ANS. Not renewed. My predecessor did

not stop it...Discretion is pursuant

to Rules and Regulations of EEOC, Title

29, Chapter XIV, Part 1601.25b(d) as

revised July i, 1973.

b. Who renewed investigation?

ANS. My predecessor did not terminate it

»-e-eInitiation of civil action is not

normally entered into District Office

CONtYOil records....

Query 2, p. 2, Why was the determination

issued before the memo?

ANS. Because I wrote the determination

based on reading all the evidence col-

lected. Though a reprisal charge had

been filed in August 1974, approximately

five months earlier, the investigator

each month reported little or no produc-

tion. My question of this was how the

case came to my attention.

After discussion with the Deputy Dir-

ector, and based on my impression also,

I judged that the investigator would be

unable to complete the case expeditiously,

ever With help...”

b. Upon what evidence was the determina-

tion based, since the memo hadn't been

issued?

ANS: The file,*

The Regional Director thought that Peti-

tioner had issued a determination before she

had the file on the case. An EEOC witness,

Evangeline Swift, unaware of Petitioner's

answers to the queries, said in an affidavit

(unserved to Petitioner) which was incorpor-

ated by reference into her testimony, at the

1975 hearing in which Perry won injunctive

relief) that Petitioner issued a determina-

tion on a case before she had the file.

Perry's deposition in this record (3/80

Gepo. Tr. 195) indicates that the U. S. At~-

torney in Birmingham, who opposed legal de-

fense to Petitioner, was Similarly misled

(never having allowed Petitioner hearing on

On the matter) and thought Petitioner is-

sued a determination before she had the file.

€ J

Bertram Perry's suit a

the same day’, to fight

fer before a diff

During Perry's 1975

part of which Petitioner

notice problems, nines ions against her (un-

Known to her) rather than due process deve

Y @)

loped as the gravamen of the case. EEOC coun-

Sel bypassed her. She asked private counsel

retained for her separate action against

EEOC, to enter an emergency appearance.

Her then counsel, waiting with her for her

hearing later the same day, either because of

Short notice and preoccupation with that, or

Surprise, or some other reason, advised that

the Perry hearing was only "preliminary." It

was over without her finding a way to rebut.

Her Answer in Perry's case was not due, and

the legality of this hasty decision has sup-'

port, e. g. Citizens Concerned for Separation

of’ Church and State v. City and County of

Denver, CA-10, 30 FR Serv 2d315 (1980).

1O7 +ha

Perry's 1975 hearing ended without the

testimony of his supervisor or witnesses

6O RIS conduct agai

In September 1975, the critical Opinion

underlying these cases was enter ed, enjoin-

ing Bertram Perry's transfer in Perry v.

™

Golub, 400 F. Supp. 409 on First Amendment

rounds, and finding that att tempt to move him

was for reporting Petitioner to the U. S.

Attorney. The case was found to be moot in

1976 and never tried (Perry v.. Golub, 74 F

360), but the first Opinion has been cited

Widely and renewed by the District Court

including in Opinion (25 EPD 131,488) here

appealed.

Perry's suit which begat the 1975 Opinion

was against Petitioner and two Superiors.

Only government counsel was served. (Petit-

loner had contacted the U. S. Attorney after

Perry's threat, to ask what Perry said to

him, and was told that he was Keeping out of

EEOC matters and didn't want to see her).

rerry is written in history as a whistle blo-

wer for having reported her to "the U. S.

Attorney," but Petitioner has never had a

chance to confront any report. [Both times

Ferry sued her, a U. S. Attorney recommended

the government not provide her with legal

defense; she had no hearing on issues].

Petitioner was preoccupied with efforts to

Stay her own transfer the same day in 1975,

Perry won an injunction. To stop her trans-

Suit At her nearing, Judge Pointer caused

ent EEOC would maintain the

, i}

Status quo and she would withdraw her motion?

resolution of the issues through

Fr Ferry v Golub.

e€ was no decision noting her success,

om the other Court, Perry obtained a

On, not just on due process grounds as

oner favored, but on First Amendment

rounds. The "Birmingham News" quoted from

e decision to the effect that Perry blew

the whistle on her mismanagement.

Immediately she sought reconsideration :or

eariy trial in Perry v. Golub; On grounds

She had elected not to testify, the court

denied her motion. (She had wanted to testify

and was undefended by any counsel). She next

conducted discovery in Perry v. Golub, when

EOC ignored her written request for help.

3. Falkowski v. (Lowell) Perry filed:

EEOC did not sustain her supervisor's pro-

posed charges against Petitioner. Her dis-

covery in the Perry case contradicted Perry's

Stories. Yet 10 months later, her authorit

was still being withheld and her administra-

tive complaint had not been decided.

In April 1976, Petitioner sued EEOC for

the second time (Falkowski v. (Lowell) Perry)

raising §1985 [see Kush v. Rutledge, 103 sct

1483 (1983)] and Title VII issues. She asked

for injunctive relief and prevailed partially.

EEOC's failure to comply with Item 2 of her

1974 Consent Agreement was corrected. This

provided class relief--EEOC's Merit Promotion

Plan ‘was changed to state that a selection

from:a "properly ranked" certificate could be

contested on Title VII bases.

Her case was then transferred to Judge

Guin, before whom Perry's case was pending.

On May 3, 1976, two weeks after Petitio-

ner's suit was filed, EEOC's Acting Chairman

called Petitioner and her "Deputy" to head-

quarters. She asked them to work together

and said Petitioner's authority was restored.

Despite Petitioner's written request, no

EEOC official told the Birmingham staff that

misunderstandings had caused withholding of

her authority. There was no show of top EEOC

Support to her, as justified by evidence.

(EEOC was enjoined from acting against Perry

without Judge Guin's permission).

Perry told one and all that a white female

favored a white female, and claimed illegal

conspiracy against him by EEOC.

Regional supervisors exercised autonomy.

They bypassed Petitioner ana talked to Perry.

Perry continued to defy and villify her and

abuse subordinates. Her administrative com-

plaints were unresoived. She proceeded with

discovery in her case.

Fee award Opinion (App.B, 82a) in her case

(suddenly mooted because EEOC restored her

authority) is the second of these appeals.

4. First Petitions in Perry v. Golub:

In September 1976, Petitioner filed a mo-

tion in Perry v. Golub, with affidavits from

Oppressed employees. She requested a hearing

On proposed disciplinary charges to Perry.

(EEOC headquarters had remanded her recommen-

dations and grievances to her Regional super-

Visors, who sat on them).

The Court, instead of acting on her motion,

aS proven by a colloquy during a 1980 hearing

on fees, made an ex parte Suggestion (Trans-

cript lodged with the Clerk, 17-18) THAT PET-

ITIONER BE DROPPED AS A DEFENDANT IN BERTRAM

PERRY'S CASE. This was while her request for

a hearing in the public interest was pending!

Two weeks after Petitioner's motion, EEOC

headquarters filed a petition for permission

TO FIRE BERTRAM PERRY.

On November 23, 1976, the Court granted

Perry's motion to drop Petitioner from the

case. Without hearing evidence on charges

against Bertram Perry, the Court denied

S petition as a sanction for failure of

agency to comply with discovery orders.

On November 30, 1976, the Court hela,

Perry v. Golub, 74 FRD 360, that since EEOC

was not trying to transfer Bertram Perry,

and since he would not let EEOC fire Perry,

there was no justiciable controversy.

That Opinion on the untried case renewed

the "whistle blower" findings, again making

Perry a hero. Unmentioned and unresolved

were issues as to whether he abused Visitors

and employees in the EEOC office and defied

Petitioner, his supervisor.

On November 30, 1976, the same day as the

74 FRD 360 Opinion in Perry v. Golub, the

Same Court dismissed Petitioner's suit sua

sponte, without a trial, as moot. Grounds

were that EEOC had fully restored her auth-

Ority. There was no hearing in which mootness

Could be disputed. The Opinion noting agency

relief to her was not published.

The Court ordered EEOC to take no action

against Perry in the future without Court

approval. Subsequently, the Court granted

Petitioner's motion for similar protection.

She appealed in both cases. EEOC "eross

appealed" in hers.

5. After the Dismissals:

Conditions in the EEOC Birmingham Office

worsened after the "mootness" decisions.

Regional managers forbade Petitioner to take

affidavits from employees. They rescinded

her warnings to Perry. They granted grie-

vances against her without hearing her.

EEOC headquarters refused her phone Calis,

did not process her grievances, and ignored

proposed charges to Perry as discipline for

new offenses (to which she attached draft

petitions to the Court). Her requests for

meetings were unanswered.

In July 1977, because of her vain reports

for two years, and within the law applicable

to recording consensual conversations (App.

I, 142a), Petitioner recorded a conversation

with Perry. He began it by calling her an

"ugly white bitch" and a "crook". He said

her warning (because he yelled at a subordi-

nate) would be "in her ass". He said she was

a crook because Judge Guin said she was.

Petitioner sent a transcript and asked for

help from EEOC Commissioners.

When help did not result, she sent it to

the Fifth Circuit asking expedited action on

her appeals. This was denied on Perry's mo-

tion, and the transcript struck as not part

of the record below.

EOC Petitions District Court Again:

On November 7, 1977, EEOC filed petitions

with the Court seeking to fire Bertram Perry

and Petitioner. Grounds stated against her

included the recording which supported ner

reports of Perry's pattern of conduct. A

ground stated against Perry was what he said,

as quoted by EEOC, from the transcript of

Petitioner's recording. :

Following the nearings, the Court issued

in November 1978, a published Opinion, 464 F.

Supp. 1016, common to both cases. This

Opinion excoriated Petitioner, relying on the

L3i> whistle blower findings in a case mooted

without trial, hearsay, and an EEOC rule

against tape recordings [which rule was

applied in conflict with statutory right

(App. I, 142a) to record ones own conver-

sation in self defense].

Witnesses subpoenaed by Petitioner to

prove abusive conduct by Perry to visitors

and employees had not been permitted to

testify.

Testimony from Birmingham Office super-

visors that Bertram Perry called his boss

obscene names and defied her, was not even

made known by the Opinion. Instead, the

Court gratuitously found that Petitioner's

conduct was "more like that of a wild scream-

in a fit of hysteria than that of

a competent District Director."

The Perry Court became the hero of the

Birmingham News again, which ran his picture

and quoted him against Petitioner. That

Opinion, on Perry's and Falkowski's "consoli-

dated cases," 464 FS 1016, was appealed

separately by Petitioner and her government-

defended co-defendants. |

7. First Appellate Action (1979)

Petitioner's motion to have the 1978

appeals consolidated with her appeal of the

1976 opinions that cases were moot failed.

in April 1979, The Fifth Cireuit affirmed

mootness, cancelled injunctive protection to

Perry, and in an unpublished Opinion, "vaca-

ted underlying proceedings so as to spawn no

consequences". Before Petitioner could ask

the Fifth Circuit Panel to publish this de-

gree of clarification, another Panel in Au-

gust 1979, decided the published 1978 opinion

was void. There was no record review and

another unpublished Opinion, which confused

the first. Petitioner sought certiorari,

(No. 79-1244) which was denied.

8. Federal Supervisor Twice Undefended

Meanwhile, in September 1978, Bertram Perry

sued Petitioner and former EEOC Chair Norton

for five million dollars. His grounds were

v_“_ * *

wor 5s oe 4s mia ” PArnoa Aza No pet ywwr , am atatoaned w -~

FSeuLv.cner Ss recoraqing rerry s conversacvion

. ) 5 saa aa die an Ye, | Po

“rr rn a) no re > aor? bo > eD -WsS tra

Wd Wi ner 3 anda dad deed Ne \/ © Nw he Or. VV “ots Vil ey _—

jence Parry: Falkowski inn fe 120s )

1S Fw U > + Cia y . & Geach SRL, \ Ve ~ 34 Lota) *

mn a '" 3) 5 rs)

_ ~ fy ~RrnNmMman A eat ial a ~ - A _ + A

vl el SYVSi.iucily again relused VU 4e7 6nG

Darie«-f ner ~ = JTafannan a VIA ne an

tS ws Via wtd ; Wa USedi Clio Oe VOD LOlie

. | 7 7 Pp | \ = ey

years of tnis iitigation) artter Judge Mc-

' 4 3 ri a ai

Fadden reinstated Perry's claims against her

vacated injunctive protection to Perry.

In 1980, Petitioner sought leave to

counterclaims, not sought sooner because

countersuit would have prevented backing

UY.

ca)

ra)

which she continu e

whom the case was transferred denied thi

leave, and let Perry drop hi a

Petitioner (the second laws

dropped after her discove

The March 1981 Opinion

inhibited by decisions of the Perry v. Golub

Court which had just issued t ee

canonizing Perry.

Petitioner requested amended findings for

balance and, in light of deposition record,

attorney fees from Perry unless her fees were

repaid by the government. Denial led to the

third and last of these appeals.

No decisions suggest tne nature of volumi-

, ility of

here has been

no trial of issues of integrity, no appellate

review beyond jurisdictional issues, and no

he 1975 “whist.

is not even shown to be

vacated by Shepard's Citations. Damaging

vacated decisions are widely cited (App. J,

146a), including by federal judges in the

District of Columbia where Petitioner works.

10. Appeal of Fee Opinions:

Petitioner appealed Findings in the fee

Opinions. EEOC appealed the amount of fees

to Perry, and opposed more fees to her. In

appealing Bertram Perry's fees, EEOC stated:

",.e-oupervisors in the office and the

istrict counsel all heard Mr. Perry

use offensive language on numerous

occasions...often referring to Ms.

Falkowski as “that bitch," “that thing

in there"...and "ugly white bitch.”™...

Mr. Perry also treated other employees

in an offensive manner, shouting at

Chem and accusing them of racism ...

and sexual misconduct...The conduct of

Mr. Perry and Ms. Falkowski had a deva-

Stating effect on all the employees in

the office....They were afraid of Mr.

Perry." (Record citations omitted here).

A 11} Snir wan aa lean mn:

Although EEOC had not appealed mootness,

t argued on the merits in opposing Perry's

Ps nqIin ny

LLinagings OY

BROC counsel quoted adverse

the Perry v. Golub Court against Petitioner'

fee appeal, after naving opposed her petition

for certiorari om zrounds that these same

findings were vacated to spawn no conse-

The findings, that Petitioner and Perry

cursed, slandered, and threw paper at one

another," are supported only by a fabrication

from Perry to Petitioner's supervisor (Ex A,

52). Petitioner's supervisor used it as a

basis for proposing to fire her. No EEOC re-

Viewer could have analyzed the proposed action

for sufficiency of evidence. The Perry Court

did not check and balance the EEOC, but publi-

cized charges against her as though supported.

The Court speculated that Perry withdrew his

verified response to EEOC's petition and did

not testify, to avoid being cross-examined.

The only-support for finding that Petitioner

threw paper at Perry, was incredible hearsay.y

4The seriousness of Regional indifference

to the implications of the report at the

time it was made was called to the attention

of the Court by Petitioner's counsel, but the

Court discounted its seriousness.

ll. Eleventh Circuit Action

The Eleventh Circuit affirmed Perry v.

wOLUS In part, by unpublished opinion,

(App. G, 137a). Petitioner had raised un-

n over one hundred thousand dollars

betause of naving to defend against law

Suits and false accusations by Perry, cre-

dited without due process. When she has

oeen unable to pay she has expended huge

mounts of ner personal time, costing not

Only her but her husband and family.

Petitioner seeks to continue a lifelong

commitment to human rights with credibility,

to ameliorate for herself and her family and

the benefit of their future leadership this

false published history.

FEDERAL PUES TIONS

Management of a civil rights agency, a

Court's finding of guilt without a Criai.,

management: of a judicial overload so as to

address published Stigma by unpublished

nullification, and rights of public officials

who become the targets of "whistle blowers"

are important federal questions.

REASONS FOR GRANTING THE WRIT

1. THE GOVERNMENT'S FAILURE TO INSURE

LEGAL DEFENSE TO WHITE SUPERVISOR SUED BY

BLACK SUBORDINATE FATALLY PREJUDICED HER

DEFENSE.

The Perry v. Golub court said (Tr.

lodged with Clerk, 36-38) that for years

Petitioner has protested lack of initial

Opportunity to defend herself, as shown:

",..What Ms. Falkowski made very clear

to me through all those hearings was

that what she wanted was a chance to

defend her--what she considered to have

been an attack to her good name. She

fired her first lawyers or they fired

her. I don't know which, but I got

the impression from her testimony that

She was intensely dissatisfied with

them because they did not put her on

the stand when I heard the Perry pre-

liminary injunction, because she wanted

to tell her side of what happened be-

tween her and Mr. Perry, and her own

lawyers did not want her to because they

had their own hearing to EO EBO.ee-

-.-eThe reason for appealing that case,

even though she was dismissed as a de-

fendant, was because she never had a

chance to testify; and she wanted such

a chance. And that, apparently, was

missed at New Orleans, but she was

the only person who appealed, and that

was her only reason for an appeal."

Perry had free legal defense throughout

(see p. 4), but Petitioner lacked even no-

tice of charges. EEOC counsel told the Court

in 1980 EEOC did not defend one of the offi-

Clais sued by Perry. (Tr. with Clerk, at 78):

"the Commission's interest in this case

waS to Separate Ms. Falkowski and Mr.

Perry...the Commission, rather than

take sides, attempted to remove both of

them, and, hopefully, at least prevailed

against one."

The outcome of lack of any initial defense

to an EEOC co-defendant in Perry v. Golub was

anticipated by ABA Canon No. 2, which requires

lawyers to assure legal defense. The damage

of violating this Canon was well stated:

"eeedl 1% i8 not received in time,

the most valiant and skillful re-

presentation in court may come too

late." Professional Responsibility:

Report of the Joint Conference,

44 A.B.A.J. II59, 1216 (1958)."

Discovery by Petitioner shows she could

have proved the applicability to this case

of Arnett v. Kennedy, 416 US 134,168 (1974):

",.-Prolonged vetention of a disruptive

or otherwise unsatisfactory employee can

adversely affect discipline and morale in

the work place, foster disharmony, and

ultimately impair the efficiency of an

office or agency."

2. DECISIONS TAINTED BY CONFLICTS OF

INTEREST OF COUNSEL AND OTHER LACK OF DUE

PROCESS SHOULD BE VACATED

Pursuant to Wood v. Georgia, 370 US 375

(1981), these decisions should be vacated.

The Court was responsible to correct con-

flicts of interest of counsel apparent from

the record.

The Court knew from his petition for fees,

December 1979, that Perry's lawyer, William

Gardner, Jr., represented Perry pro bono.

This lawyer has long represented companies

charged with discrimination before EEOC. The

Court knew the lawyer's renown (App. A, 68a).

Mr. Gardner's interest was not in his

Client ‘s loyalty, deserved or not, to his

Supervisor. Counsel for Perry was discre-

diting Petitioner to undermine her credi-

bility in other cases where he represented

employers against EEOC. [For example, with

no clear relevance to issues of record, Gard-

ner argued to the court that Petitioner en-

gaged in "fishing expeditions" and tried to

"make a federal case" of complaints and

expand them, and Perry did not.]

In Hall v. Small Business Administration,

675 F. 20 175 ({CA-S 1983), Judge Rubin said:

“Judicial ethics reinforced by statute

exact more than virtuous behavior; they

command impeccable appearance."

This applies to all officers of the Court.

Another kind of conflict was apparent.

From 1975, the Perry v. Golub court had

knowledge that EEOC counsel presented the

positions of Petitioner's co-defendants.

(EEOC did not even obtain Petitioner's pos-

ition, which of course, was not presented).

Transcript of the 1975 hearing shows EEOC

counsel entered an appearance for all defen-

dants, and that no one else entered an ap-

pearance for Petitioner.

Initial lead counsel for EEOC, a black

man did not cross-examine Perry when he ac-

cused his white female supervisor.

From EEOC's opposition to Perry's fee

claim, the Court knew EEOC disclaimed res-

ponsibility for cost to Perry's counsel of

Petitioner's depositions. EEOC held, in ef-

fect, that clearing a District Director's

name did not contribute to the case.

The Court had an obligation to protect the

parties from clearly unresolved conflicts of

interest of counsel. The conflicts are shown

by the Court's own words (App. B, 82a-122a):

",...-The plaintiff has articulated no trace

of any logical reason that the EEOC should

have attempted to contradict the testimony

of its Regional Director. The obvious fact

Of the matter is that she later came to re-

gret her decision not to testify in 1975

and is now trying to place the blame on

EEOC counsel for not having undertaken to

do what she had the opportunity to do but

elected not to do. Similarly, her conten-

tion that "the charges against her were

never substantiated" is Simply a repitition

of her argument that the EEOC should have

ea Os : igs

refuted" the testimony of its Regional

Director."

This sidesteps evidence which grew over

the years, that EEOC's Atlanta Regional Dir-

ectors credited a false attack, also unlawful

under Title VII, and without hearing or

grounds withheld Petitioner's authority until

she sued. Management's responsibility not to

Support a racist attack is discussed in Lin-

coln v. Board of Regents, University System,

Georgia, 697 F.2d 928 (CA-11 1983).

EEOC had removed Petitioner's authority

and, by treating her as a wrong doer, impli-

citly supported Perry's claims. EEOC did not

then attempt to resolve conflicting interests

of codefendants by having her supervisor re-

store her authority as withdrawn because of

misunderstanding, or consider her evidence

provide her with legal defense based on it.

EEOC managers violated Federal Personnel

regulations by refusing to issue a written

decision that charges proposed against Peti-

tioner in 1975 were not sustained.

The District Court describes conflicts of

interest from which, under Wood v.Georgia,

Supra, the Court should have protected

Petitioner from 1975 on. In the hearing

on fees, the Court acknowledged her initial

lack of defense. Yet in published Opinions

the Court finds that Petitioner "elected not

to testify" and renews vacated findings.

The District Court at the fee hearing

smiled on avoidance by Perry of having

to testify and provide admissible evidence

on the tape recorded conversation. Thus

the Court approved Perry's manipulating the

proceedings instead of performing its obli-

gation to adduce the facts.

Known evidence in the consolidated record

of these cases screams against District Court

findings in the fee awards, as not "the truth

and right" of the case and. "clearly mistaken,"

in accordance with the standard discussed in

United States v. United States Gypsum Co.

1946, 333 U. S. 364, 395.

Furthermore, conflicts of interests of

counsel which should have been addressed by

the Court caused prejudice to Petitioner.

3. SEVERAL QUESTIONS OF FRAUD UPON THE

COURTS SHOULD BE REVIEWED:

Moore's Federal Practice 7, pps. 507-513,

analyzes the obligations and powers of Courts

where there has been fraud upon the Court.

Petitioner offers examples which she believes

raise questions of conduct, in a milieu of

judicial action which also raises questions.

EEOC Positions In This Litigtion

t+ In 1975, EEOC took the position in Terry

ve Golub that Bertram Perry was abusive, dis-

ruptive, and intemperate. For that he and

nis supervisor should be transferred because

they didn't get along, EEOC decided:

EEOC had removed Petitioner's authority

and, by treating her as a wrong doer, implic-

itly supported Perry's claims. EEOC under-

Stood no obligation to attempt to resolve

misunderstandings or conflicting interests

of codefendants or support Petitioner with

legal defense, justified by evidence.

2. EEOC managers didn't sustain proposed

charges against Petitioner, but failed to

issue written decision to that effect re-

quired by the Federal Personnel Manual.

Years later, EEOC counsel cited to the ap-

peals court that her supervisor removed her

authority, without mention that charges

were not sustained.

3. EEOC counsel told different Courts con-

tradicatory versions and breached representa-

tions to this Court:

(1) In 1979, EEOC counsel told the Su-

_ preme Court (App. K, 147a) in opposing her

petition for certiorari, that findings stig-

matizing to Petitioner in Perry v. Golub

had been vacated to spawn no consequences.

(2) In 1982, the same counsel was of

counsel on a brief which quoted adverse va-

cated findings against Petitioner to oppose

her suit for legal support in the District

of Columbia. That counsel also supervised

counsel who, in brief to the Eleventh Cir-

Cult, claimed that vacated District Court

findings adverse to Petitioner were ful.ly

justified. |

(3) In 1982, EEOC counsel was “of coun-

sel" on a brief filed by the Justice Depart-

ment. The brief represented to aD. C.

Court that EEOC provided legal defense to

Petitioner in 1975 in Perry v. Golub. EOC

counsel who helped with this brief was the

same counsel who told the Perry v. Golub

Court in 1980 that EEOC didn't take sides

between Bertram Perry and Petitioner.

[EEOC managers ascertain "facts" relating

to employee litigation without hearing the

litigant "because its in Court." Agency heads

delegate their responsibility to a legal

staff which may not advise them regarding

evidentiary support for midcourse corrections

to past management or legal advice].

Bertram Perry's Accusations

3. The earliest findings, those in the

1975 Opinion granting Bertram Perry injunc-

tive relief as a whistle blower are based on

fraud. One example:

Two EEOC officials to whom Bertram Perry

talked, believed that Petitioner issued a de-

cision on a case before she received the

file. One official was her supervisor, who

queried her on what she based her determina-

tion, since tne investigator's recommendation -

was dated a week later.

Another official was Evangeline Swift, who

testified in 1975 when Perry won an injunction.

Incorporated in her testimony was an affidavit

to the effect that Petitioner issued a deter-

mination before she had the file. (Petitioner

did not see the affidavit until weeks later).

In a March 1980 deposition from Perry

which Petitioner took in his second suit

against her, nearly four years after his

first was mooted without trial, Perry

admitted that he told the U. S. Attorney in

Birmingham, that Petitioner issued a determi-

nation on a major case before she received

the file on the case from the investigator.

In a colloquy during the deposition, Perry's

role, not previously proven, comes out.

He asserts that at the U. S. Attorney's

Office, the man said he--

"couldn't believe what his eyes

were showing him."

aASked if he told the U. S. Attorney that

Petitioner issued a determination before

She had the file on the case, Perry replied

by asking what else the evidence could mean.

Petitioner has never had opportunity to

explain to those who denied her government

legal defense without hearing, that she

called for the file on the very same case

before she wrote the determination, through

Bertram Perry, her Deputy. Perry knew that

Petitioner asked for the file in the course

of monitoring productivity of employees.

(Complexity of the case was the reason given

by the investigator for his low case output).

Petitioner wrote her decision from the

files and the draft recommendation from the

investigator, and returned it with instruc-

tions, through Bertram Perry, that the in-

vestigator (also a conciliator), finalize his

report and conciliate the case.

The investigator's report was finalized

and dated after Petitioner's determination.

Petitioner has not had opportunity, since

her early lack of legal defense, to prove

that Perry used the above unusual but inno-

cent circumstance to mislead persons to be-

lieve that Petitioner (whom he said slanted

cases for attorneys) issued the determination

before she had the file.

eae a. explanation was

corroborated by deposition from the employee

who attempted to conciliate the case.

In another Situation, she proved she did

not improperly fail a conciliation. The

employer was not Willing to make any offer

to a charging party for whom "cause" was

found. As Perry knew, in such a Circumstance

a second meeting would be contrary to EEOC

policy. Further, the employer offered no

counter to EEOC's written Proposal. At

Petitioner's request, the employer's

attorney wrote her confirming this. That

and similar evidence was in the record and

called to the attention of the Court.

Such was the kind of evidence which caused

Petitioner's authority to be withdrawn,

which caused her to be denied legal defense,

Which caused Perry to win an injunction,

and which has caused her to be disgraced.

Such was the kind of "evidence" on which

the whistle blower case was made to the

District Court by Perry, who knew the facts

were otherwise. That is why Petitioner ap-

pealed Opinions in hers and Perry's cases

and challenged mootness. That is why

charges against her were never upheld.

Affirmance that the cases were moot, and

financial hardship because of the irregula-

rity of both administrative and legal pro-

ceedings prevented Petitioner proving fraud

and clearing her name.

In 1978, EEOC paired Petitioner and Perry

in firing attempts. In proceedings before

the Court (who had retained jurisdiction in

moot cases) Petitioner showed that a griev-

ance filed by Perry misreported an incident

as proven by transcript of their conversation.

The Court suppressed the transcript as a

basis for action against Perry, and wouldn't

consider it in Petitioner's defense.Petitio-

ner was again blocked from using proven

deception by Perry.

Even when the Fifth Circuit vacated the

District Court decision, it was on jurisdic-

tional grounds, without record review or

exposition of evidence.

THE PERRY V. GOLUB COURT:

In 1975, the Perry v. Golub Court, with

grant of injunction to Perry, found there

was a Suggestion that Petitioner might be

Slanting cases for the benefit of certain

private attorneys who were her personal

friends.

Petitioner has vehemently denied this at

every opportunity. She has no dearth of at-

torney friends, her lawyers are paid by her,

her only pro bono attorneys having been her

Drother, a patent lawyer, and now one of her

sons, a new lawyer. But Perry had pro bono

counsel who represents clients charged with

discrimination before EEOC.

The District Court granted a substantial

award to Perry's attorney, based on the whi-

Stle blower findings, not supported by a

trial, and citing "wild screaming woman" and

“paper throwing" decisions, supported, at

best, by hearsay.

However, there was no record review which

could impel the Appeals Court to assist Peti-

tioner as it did plaintiffs in James v. Stock-

ham Valves, 559 F2d 310 (CA 5 1977), by pub-

lishing that the same Court overly relied on

proposed findings of Title VII defendant coun-

sel. Or that in Little v. Southern Electric

Steel Co., 595 F2d 998 (CA-5 1979) the same

Court made findings adverse to a black plain-

tiff which were not supported by the record.

There has been no review which could show

Petitioner has been discredited without basis.

Bias of the Perry v. Golub court was raised

Delow and in this Court's No. 79-1244. It

is best proven by the transcript of hearing

on fees (lodged with the Clerk).

The transcript Shows that the Court sug-

gested Petitioner be dropped as a defendant

from Perry's case when she was awaiting the

Court's ruling on permission to initiate

adverse action proceedings against Perry.

It shows the Court, sua sponte, decided

the cases were moot (when EEOC restored Peti-

tioner's authority after her discovery evi-

dence). It shows that contrary to published

Opinions, the Court knew she didn't really

ever elect not to testify.

The Court leapfrogged preliminary injunc-

tion findings after dismissing the case

Without trial, and used the findings as es-

tablished to support a 1978 opinion.

After the District Court 1975 and 1978

Opinions were vacated, the Court essentially

reiterated these findings when awarding fees.

What such judicial conduct indicates,

whether bias or fraud, might best be deter-

mined by this Court.

The transcript of hearing on fees shows

the Court asked Perry's lawyer to prepare a

decision. No proposed decision was issued

and request on behalf of Petitioner for a

copy of any proposed decision was unanswered.

(See James v. Stockham Valves, Supra, where

a ground for reversing the same Court was

the decision that findings reflected, not

independent appraisal of the record, but a

rubber stamping of arguments of a party).

The fee decision on Perry v. Golub, after

the Court asked for a submission from Bertram

Perry's lawyer, conflicts with the under-

Standing of the case the Court expressed at

the hearing on the fee petitions. (Transcript

lodged with the Clerk).

FRAUD UPON THE COURT

The deceptive positions shown in this Part

are more serious than that which caused this

Court to overturn a judgment in Hazel-Atlas

Glass Co. v. Hartford-Empire Co., 322 U. S.

238 (1944). [Phony publicity campaign was

used to make product appear more popular in

patent litigation].

That foregoing deception did not countri-

bute to false stigma. (Nor did burglarizing

Watergate).

In a case involving contradictory posi-

tions to Court, because different counsel was

involved in presenting the contradictory

positions, the result was found not to con-

Stitute fraud. U. S. ex rel Bonner, 78 FRD

344 (1978).

Here the same counsel and supervisors are

involved. They are assigned to represent

certain officials of EEOC, in the name of

representing the "government".

Hoaxes by Bertram Perry are proven in

the record. EEOC lawyers and managers are

responsible to know the evidence, even to

hear Petitioner. Voluminous evidence, which

because of mootness decisions, is not before

che Courts, is in EB&0C files.

Petitioner is not heard on the issues, be-

cause EEOC tells her they are moot. Appeals

have been pending on that for years, while

EEOC lawyers tell Courts she is a wrongdoer,

and committed actions she never committed

with which she has never been charged.

Monroe v. United Air Lines, Inc., 31 EPD

$33,329, US DC Ik (1982) at note 2, says

that an employer may not leave to the Courts

that for which it is responsible:

"United would therefore also know Judge

Flaum's decision was an erroneous one

because based on incomplete information

fully available to United."

One might assume that civil tights agen-

cies would not leave an individual accused

in history, with neither trial or publication

that published accusations were mistaken.

But prejudice and refusal to scrutinize past

actions for error has caused greater wrong.

Alfred Dreyfus, a jew, was left on Devil's

Island for years. Meanwhile, the real cul-

prit was tried and found "innocent" of trea-

son. Not until Emile Zola's J'Accuse did the

French government uncover error caused by

prejudice and fear, and free Dieyfus.

Captain Dreyfus by Nicholas Halanz.

EEOC's asking this Court to deny Petition-

er's request for certiorari because findings

were vacated to spawn no consequences, and

then using the vacated findings against Peti-

tioner in Courts, should be reviewed.

Bertram Perry's lies about Petitioner's

case processing, upon which preliminary

relief to him was based, should be reviewed.

Reiteration of stigma by a.Court, both

after a case was mooted without trial and

after it was vacated, and contrary to record

evidence, should be reviewed.

4. APPELLATE NULLIFICATION WITHOUT PUBLI-

CATION, OF FALSELY STIGMATIZING PUBLISHED

DECISIONS, DEPRIVES OF DUE PROCES

This Court has held that the Executive

Branch cannot place the name of a civil ser-

vant on an “Attorney General's List" as sus-

pect without a hearing, Joint Anti Fascist

Refugee Committee v. McGrath, 341 U.S. 123,

168 (1951). Petitioner's name has been pub-

lished as having been reported to a U. S.

Attorney as suspect, without any hearing.

False findings against her made at the time

a preliminary injunction was granted to her

Deputy have been nullified? by Opinions of

an Appellate Court, which are unpublished.

5Except by interpretation of the Perry Court

that he may hear any attempt to act against

Perry by treating his prior pleadings as a

new complaint. (Tr. 59-93).

During oral argument on the first appeals,

a member of the Fifth Circuit Panel asked

Perry's counsel about findings adverse to

Petitioner. This counsel responded that a

footnote in Perry v. Golub explained that

the Court had not found Petitioner guilty of

anything. The appellate judge remarked that

"the footnote giveth, but the Opinion taketh

away."

Petitioner's counsel was then asked if her

reputation wouldn't be taken care of if the

Opinons below were vacated to spawn no conse-

quences? That is wnat was done.

Mootness was affirmed, injunctive protect-—

ion to Bertram Perry was nullified, and

underlying proceedings were vacated to

spawn no consequences. (App. D, 133a). How-

ever, the decision was stamped, "Do Not Pub-

lish" and reported "Affirmed and Vacated."

It was not reported by Shepards, and it would

have clarified nothing if it were, since what

was affirmed and what was vacated was not

explained in the Federal Reporter.

The second appeals, on the 1978 District

Court Opinion in 464 F.S. 1016, were pending.

Because of a comprehensive record, Petitioner

hoped for reversal. Instead, the 1978 opinion

was vacated as beyond the Court's jurisdiction

by another unpublished Opinon. Petitioner

unsuccessfully appealed to this Court, No.

79-1244.

Opinions on fees have been based upon

findings vacated by the Fifth Circuit. The

Eleventh Circuit affirmed, except Perry v.

Golub, affirmed in part. Which part is af-

firmed is not published. This leaves Peti-

tioner's reputation unfairly under cloud.

Where a published opinion is affirmed or

vacated entirely, lack of publication does

not mislead. Affirmance of a damaging Opin-

ion "In Part" continues the damage and does

not conform to local rules.

Rule 21 of the Fifth Circuit provides for

affirmance without opinion, and that the

Court may enter either: "Affirmed. See Local

Rule 21," or "Enforced. See Local Rule 21."

Rule 25.1 requires publication of establish-

ment of a new rule of law...or a factual or

legal issue of significant public interest.

Rule 25, Eleventh Circuit provides for affir-

mance without Opinion, but not for affirmance

in part without Opinion.

The correction of potentially false and

scandalous material found in a lower Court

Opinion should be considered by an Appellate

Court when it is deciding whether to stamp an

Opinion with the words "Do Not Publish".

Board of Regents v. Roth, 408 U. S. 564

(1972) teaches:

".eewhere [an individual's] 'good name,

reputation, honor, or integrity is at

Stake,' or 'the State ...imposed...a

stigma that foreclosed his freedom to

take advantage of other employment op-

portunities,'...he may claim a depriva-

tion of 'liberty' under the due process

clause...".

See, regarding false stigma, Codd v Velger,

429 U. S. 624 (1977), and stigma without

hearing, Wisconsin v. Constantineau, 400 US

mas (1971).

Relief won by Petitioner because her auth-

Ority was restored was by unpublished Opinion

affirmed by unpublished opinion. She had

been falsely stigmatized in her profession

aS an EEOC leader by the open and published

removal of her authority. This removal was

without hearing or grounds ever sustained.

Published incorrect findings against

Petitioner contained in four Perry v. Golub

Opinions have been nullified by unpublished

appellate opinions. However, the findings

are reiterated in published opinions which

are now further appealed. Petitioner has

never had a day in Court on findings attack-

ing her integrity. The result is Shocking

to conscience and unconstitutional.

This Court found Congress to be subject to

action under the Constitution in Davis v.

Passman, 442 U.S. 288 (1979). Likewise,

Courts are not exempt from constitutional

Strictures. Rodgers v. United States Steel

Corp. (Rodgers 1), S08 F. 24 SZ, 163 (3e

Cir.), cert. denied, 423 wu. oS. G32 €i97S).

This Court through its Supervisory power

Should require Appellate. Courts to assure

due process in deciding whether or not to

publish an Opinion.

59. WHERE FEE DECISIONS FIND ON THE MERITS

OF OF UNTRIED CASES, AND RECORD SHOWS BIAS,

THIS COURT SHOULD VACATE AFFIRMANCE AND ‘ORDER

REMAND FOR DECISIONS BY AN IMPARTIAL TRIBUNAL

Petitioner has standing in this consoli-

dated case because of her interest in a non-

discriminatory work environment, Rogers v.

EEOC, 454 F2d 234, (CA-5 1971), cert.denied

(1972): Trafficante vw, Metropolitan Life

Insurance Co., 409 U. S. 205 (1972); her

"liberty" interest, Southern Mutual Help

Association v. Califano, 574 F2d 518 (CA DC

1977); and property interest, Arizona v.

California, 103 SCt 1382 (1983).

When Perry's attorney was awarded fees for

170 hours for matters raised by Petitioner,

the District Court said:

"eeeBy 1976, it had become apparent that

her presence as a defendant in the case

was unnecessary, and in retrospect, that

She need not have been joined as a defen-

dant to begin with. However, that which

Was apparent in 1976 is not determinative

of the appropriateness of her joinder at

the outset of the case in 1975 when the

full range of facts had yet to he

developed."

The monetary cost of false accusations to

Petitioner has been more than $100,000.00.

These accusations and her pursuit of relief

have deprived her of promotion Opportunities,

credibility, and friends in EEOC.

More important, Petitioner is a wife, who

did not dishonor a name she chose; a mother,

whose example is falsely published. She is

a lawyer, falsely written in legal history

as a person of doubtful integrity.

The fee Opinion in Perry v. Golub begins

with citations of prior Opinions which had

been vacated to spawn no consequences. The

Opinion contains many findings on merits,

1.@.: App.A, Sa, 9a, isa, 18a, 20a, 24a, and

29a, and concludes with:

litigation will produce the immeasurable

benefit of protecting other Government

employees from the high-handed treatment

accorded this plaintiff. It is with con-

Siderable reluctance that the Court com-

ments on defendants' actions in this case,

because the Court is all too well aware

that the Court's 1975 decisions had the

effect, not of inducing defendants to re=-

consider their attitude toward piaintifr.

but rather of adding fuel to the flames of

their efforts to silence and punish him.

The Court is concerned that any comments

in this Opinion might g~enerate still another

flare-up of defendants' attitude and there-

fore is constrained to use mild terms in

describing defendants' actions. Even

characterized in mild terms, it must be

Said that this lawsuit has produced the

Significant benefit of revealing retali-

atory and discriminatory treatment of a

Government officer and of Serving notice

that Government employees may not be

treated as chattels to be removed or moved

because of their exercise of their ClVii

rights and their Constitutional Fights."

United States v. Hamburg-American S.S.

Co., 239 U. S. 466, 478 (1915) teaches

that equity is to be done in moot cases.

University of Texas v. Camenisch, 101

S. Ct. 1830 (1981) restates settled law

that findings reached in a preliminary

injunction hearing not noticed as a trial

on the merits may not be final findings.

The Court erred in Overlooking that Peti-

tioner's appeal:

(1) Resulted in findings favorable

_ to Perry and adverse to her being vacated.

(2) Resulted in injunctive protection

which had prevented discipline to Perry

for his treatment of her being vacated,

(3) Resulted in her prevailing to the same

degree as Perry as of the time mootness was

decided, and

(4) Resulted in Petitioner, as Only appel-

lant substantially prevailing by findings ad-

verse to her being vacated, while Bertram

Perry lost favorable findings and Court pro-

tection from discipline.

The Court, in awarding one-tenth the fees

to Petitioner as to Perry (who was not sued

whereas he sued Petitioner twice) again erred

by finding (App. B, 105a), that EEOC had had

grounds to discharge Petitioner. The Court

based the finding on a vacated decision. Not

Only was this procedurally incorrect by de-

nying Petitioner a trial on the "grounds" for

discharge, but the finding is contrary to

applicable substantive law (App. I, 142a).

The “whistle blower" Opinions, reiterated

despite cases having been mooted without

trial, are published history. Equity cries

out that this published history be super-

seded.

Because of the importance of the manage-

ment of a Federal Civil Rights agency, the

-problem of false signals being given to EEOC

employees as to what constitutes acceptable

behavior in office, the rights of Federal

Supervisors who are sued; the injustice of

violations of due process, and questions of

bias and of fraud upon Courts, Petitioner

prays that that this Court grant certiorari.

CONCLUSION

She asks this Court, pursuant to Rule 17

(a) to exercise its power of Supervision

because of departures from the accepted and

uSual course of judicial proceedings. At a

minimum, she asks this Court to vacate and:

(1) remand for fee Opinions by an impartial

tribunal, and

(2) cause published clarfication that these

cases were administratively resolved, and

that all questions concerning Petitioner's

character and competence referred to by the

Perry v. Golub Court have been withdrawn by

EEOC, and that Bertram Perry voluntarily with-

drew two lawsuits against Petitioner.

“a ie i submitted,

Libs Falkowski, Pro Se*

2501 N. Kenilworth St.

Arlington, Virginia 22207

(703) 534-4270

OF COUNSEL:

Owen Perry, Esq-, 3000 Town Center, Suite

2121, Southfield, Mich. 48075

Edward Owen Falkowski, Esq., Fe O. Box 18,

Fayetteville, Tennessee, 37334

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Enclosed plcase find a narrative and doscuarniery support

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tieS nave filed grievances with the union

and more ‘than 150 days have elapsed since

ory act had oc-

the alledged discriminat

curred. She loo

expression and b

alter ego?" [Jf Said, "Alter ego means one

Side of ones self and se self." She

Said, "Well then, if you e my alter ego

I must be Schizophrenic." I commented

that maybe she was. She Seemed not to be

in contact with the question that I posed.

I attempted to tell her why I was asking

about the procedure and she began to cry.

She said in a weird manner, "What's hap-

pening to me? She asked me had I seen

the pictures of her grandbaby. I replied,

"No". She said that she went to Huntsv-

ville on the 2nd of February to see her

grandbaby. She told me that her daughter’

had delivered the baby on a farm in Tenn-

essee and was living in a commune. She

Said she believed her daughter was crazy

and is running her Crazy. She began to

i 38

cry harder and sob louder. She said to

me, "What am I going to do?" At this in-

Stance her private telephone

Cried to gain her composure, picked up

the telephone and said "Hello". She asked

me if I would please leave her office and

ciose the door. As I closed the door she

Said, "Ethel".

The remainder of the day, Ms. Falkows!|

nad little to say to me. She never called

me back on the case about the union. M

Pugh asked several times during the day

if I had gotten information on office p

icy on the case. I assured him I would have

it by close of business, as soon as Ms.

Falkowski got back to me.

MS. Falkowski was in and out of the

office all during the day. She had several

conferences with Aaron Nelson. Between

conferences with Mr. Nelson, about 2:30,

I approached Ms. Falkowski about Mr.Pugh's

problem. She told me she had no time to

deal with me about the matter. However,

she was just sitting at her desk staring

when I knocked on her door. At approxima-

tely 4.29, I went to Ms. Falkowski's office

concerning the long hair/facial hair oro-=

blem as it pertained to the right-to-sue.

This problem was emanating from Mr. Davis.

Mr. Davis said he needed to know what

the policy was on the issuance of the

notice of right-to-sue since Ms. Falkow-

Ski's policy issued in my absence on

February 3, 1977, on the notice of right-

to-sue is contrary and conflicting to Mr.

Muse's memo of August 20, 1976 on the

handling of long hair/facial hair cases.

Mr. Davis became involved and concerned

about the procedure when the District

Counsel, who supervises this compliance

function, had returned a right-to-sue

forwarded to him by Mr. Davis with in-

structions to send him a written request

before the right-to-sue could be issued.

Immediately upon my getting Ms. Falkow-

Ski's approval to speak with her, I no-

ticed a young Caucasian female sitting in

Ms. Falkowski's office with her feet res-

ting in another chair in Ms.Falkowski's

office. She said that the lady's name was

Ms. Addie Steele, a personal friend of

hers. She told Ms. Steele that I was Mr.

Jeffrey. My mouth flew open when she

called me Mr. Jeffrey, but I did not make

any comment. I nodded my head and asked

permission to speak about the business

problem. She told me to tell Mr. Davis

process the case the same as he would any

Ootner rignt-to-sue.

WaS Sure these were th

wanted me to give Mr. Davis.

Wer} i Tey! M &N riewaeioe Ad ~~

why certainly". Mr. Davis was Standing

t 4

”™

in the doorway, near Ms. Fal

n”

WY)

”

val

fice. I gave Mr. Davis M Ss

instructions and he said that he did not

Oelieve I was serious. He said,

to be kidding." I told him to proc

case aS Ms. Falkowski directed. While

was in the doorway talki

pie

~”

a <r ay

referred to me several time

be al .

irst I though

frey. At

to be funny and then I began t

that she in fact thought I

Ms. Falkowski told me before I conclu-

ded my conversation with her that s

would settle policy concerning the sup=

reme court's decision on tolling the

tatue when a grievance was filed with

the union as the first order of business

on February 17, 1977. This is the pro-

blem that Mr. Pugh raised. At approxima-

tely 5:30 a.m. on 2/17, Mr. Pugh asked me

if I had gotten the decision from Ms.Fal-

kowsSki on the problem that he had raised

the day before. I told him no, but I

would discuss the problem with her momen-

tarily. When I went to Ms. Falkowski's

office at about 8:20, I asked Ms. Word

wrere was Ms. Falkowski. Ms. Word stated

that Ms. Falkowski left with another wo-

man a few minutes earlier. When I turned

to leave Ms. Word's desk, I saw Ms. Fal-

kowski and the same Caucasian female she

introduced to me as Ms. Steele on February

16 standing by the elevator. Ms. Falkow-

ski appeared to be leaving the office. I

opened the glass door and asked Ms. Fal-

kowski was she leaving for the day because

if she was I had some important business

to discuss. Ms. Falkowski stated that she

was not leaving for the day and if I wanted

to see her I could wait for her in her of-

fice. I went back to my office, picked up

the memo on the notice of right-to-sue and

started down the hall to see Mr. Davis.

In the meantime I saw Ms. Falkowski and Mr.

Nelson standing in the hall talking to one

another. As I looked into Mr. Davis's

office, he was not there. I returned to

my office in route Ms. Falkowski and the

same Caucasian female were standing in the

hall talking. The elevator came and the

Caucasian female, Ms. Steele, got in the

elevator. I went to my office and picked

up Ms. Falkowski's memorandum and went to

her office. She was not there. She ar-

het 13 hy } and +) :

tneir compliance problems and that I wa

nswer them because I did not

ot Know what procedure she

follow. She said. let me dis-

Ss S's problem first. She said, "I

told you yesterday what my position was on

t and I'm not going to discuss it any-

more." I said, very well, it makes no

difference to me if you want to give out

conflicting and erroneous instructions to

the supervisors." I turned to go out the

door and she said, "Just a minute. Giv

me Muse's memo." I said I de not have it.

She said "you have it in your hand.

order you to give me Muse's memo." She

Jumped up from behind her desk in an angry

manner and glared at me as if she could

kill me and she ran toa typewriter in her

office and typed something on a piece of

Paper, she jumped up and held the paper

over her face. I asked, "Is that all Ms.

Falkowski?" and as I turned to Leave she

had the paper over her face. She there-

upon threw the paper on my body and I

threw it back at her and asked what on

earth she was doing. Ms. Falkowski was

shaking and seemed to be out of control

of herself and grabbed her coat and ran

out of the office.

I have had no further contact with Ms.

Falkowski.

There are other matters that are of

importance in this matter that rieed to be

stated here. Ms. Falkowski, Ms. Walsh

and Mr. Alvin Golub are in constant com-

munication with each other. Ms. Falkowski

has stated that they must accomplish my

removal before Ms. Walsh and Mr. Golub

loose power with the change of administra-

tion. Ms. Falkowski stated to Mr. Jeffrey

in the presence of Mr. Beasley, Mr. Bert

and Bertram Perry that she would not let

bygones be bygones. "T will die and go to

hell before I let Bertram Perry get away

with ruining my reputation." Ms. Falkowski

went into a rage. Mr. Jeffrey dismissed

the meeting because of her rage.

It is my firm belief that Ms. Falkowski

starts these flare-ups first, because of

her intense racial problems, second, be-

eause of her gross incompetence in the

compliance and management areas, and third,

the deep hate and jealousy of me.

Abou A329 a.m. AN Faberruy 16, 1977, I wert te aL. Tol hewsni's

Ofisee to oak Ree waih se were Jotag to do about. setting us

Wwe wininiutrative p-sesdure fo: handling custs whessia the:

Cnucsjing Parties Nave Ciled grievances with che triou end morse

them LOO days Nave slaused sisc> the elledge Ci serininuory

av’. Rec o¢eursod. Sis Jooknit ct ne with a bli. enor -esiacs

and olurted auc, "hhas is an alte- ego?" I said, “Wier ego

Pewiit One sic Of ones seif and second selsf.* Sise suid, “tel

then, if you ase wy alter ego I cus: ve schizopluenic."* I

covsivnated that mavoe she was. She S2em=<d not to be in comtsect

with the question that I posed. 1 actematse to tell her why

Twas asking about the procedure and slie began to cry. She said

in a weird manner, “wnat's happening to me?" She asked me bad

ZI sees the pictur2s of het: granstaby. 1 replied, "No*. She

said that she went to Huntsville on the 2nd of Pebzuary to see

her granchaby. She told me that her daughter had delivered the

Baby on a farm in Tennessee and was living in a comauna. She

said she believed that her daushter was Crazy and is runrirg her

crazy. She began to cry harcer and sob louder. She said to m2,

"Wnat am I goinc to do?* At this instance her private telentsne

Tang. She tried to gain her composure, Picked up the telephone

and said "Hello". She asked ma if I would Please leave her office

and close the door. As I closed the door she said, “Ethel".

The remaincer of the day, Ms. Falkowski had little to say to me.

She never called ma back on the case about the union. Mr. Puch

asked several times during the day if I had gotten informatica

on office policy on the case. I assured him I would have it by

close of business, as soon as Ms. Falkowski got back to me.

Ms. Falxowski was in and out of the office all during the day.

Sns had several conferences with Aaron Nelson. Between con-

ferences with Mr. Nelson, about 2:39, 2 approached Ms. Palkowski

about Mr. Pugh's problem. She told me she had no tire to deal

with the matter. However, she was just sittins at har desk

stasing when I knocked on her door. at aporoximately 4:29, rx

went to Ms. Faikowski's office concerning the long hair/facial

hair problem as it pertained to the right-to-sue. This prodtlem

‘was emanating fromMr. Davis. Mr. Devis said he needed to know

what the policy was on the issuarce of the notice of right-to-

sue since Ms. Falxowski's policy issued in my absence on

Pebruary 3, 1977, on the notice of right-to-sue is contrary and

conflicting to M=. Muse's maemo of Ausust 20, 1976 on the handlins

of long hair/facial hair cases. Mr. Davis became involved and

269

conascne! sbout the pricesacn whan the Nistrict Cows.sst, wae

brineeViews Wie estat iares Zunstisoa Thad resnensd uw rignuii-to-aas

Jovwaorded te hia by Mr. Mavis wich instructic:.s to send hia a

written vecuest befory the rignc-to-3ue could bt issued.

Invindistedy upon my gutting ts. Palluwski's enavervsl to sprak

with Naz, I nociecd a young Coucasian Cumule sittin, in

| Pulkowski's office witht her feet vesting in esocher chair

in Bs. Falkowshki's o.fies. Sho said that thn Jaiy'’s name was

Ms. Addie Steele, a pezsonal fricas of hers. kes Could Bs. Steele

tuck I wes tr. Jefirsw, My meuth flivww open uhon she celled mz

Lod

-, Sofficey, bus I dia not make any crument. I uodcec my head

THe asnsrc permission to talk. about the business I was there io

Giscuss. tis. Paliowski gave ac peimiscsica to speak avout tie

business problem. She told ne to tell fir. Devis to process the

cuse the same as he would any other right-to-su2. I asked her

if she was sure these were the instructions she wantec me to give

Mr. Davis. She said why certainly". Mr. Davis was standing

in the docrvey, near Ms. Falxowski's office. I gave Mr. Davis

Ms. Falkowski's instructions and he said that he did not believe

I was serious. He said. “You cot to be kidding.” I told hin

to process the case as Ms, Palkcwski cirectad. While I was in

the dsorway talcing to her, she referred to me severzl time as

Mz. Jeffrey. first I though she was trying to be funny anc

then I_ bagan to realize? cas sre in cact thous:t I was Mz. Jeffrey.

Ms. Falkowski told me before I concluded my conversation with

her that she would set=le policy concerning the supreme court's

decision on tolling the statue when a grievance was filed with

the union as the first order of business on February 17, 1977.

This is the problem Mr. Pugh raisec. At approximately 8:3Q@-m. on afm:

Mr. Pugh asked me if I had gotten the decision fram Ms. Palkowski

or the proble=s that he had raised the cay before. I tole hin

no, but I would discuss the problem with her momentarily. When

I went to Ms. Falkowski's office at about 8:20, I asked Hs. Word

where was Ms. Falxowski. Ms. Word stated that Ms. Palxowski

left with another woman a few minutes earlier. When I turned

to leave Ms. Word's desx, I saw Ms. Falxowski and the same Cauca-

sian female she introduced to ma as Ms. Steele on February 16

standing by the elevator. As. Falkowsxi apoeared to be leaving

tne office. I opened the glass door and asked Ms. Falkowsxi

was she leaving for the day because if she was I had soma important

business to discuss. Ms. Falkowski stated that she was not

--*

‘

ar ia

lewinry for the duy und if I wanted so see hur I could writ

fms hes in her office. 1 wen: Beck co My Offisi:, Pieced up

th. cenmo on th: notice of righs-ts-su: und Statted Cowen the helt

to ese Mz. Davis. Tm tas mesetimn I Sx 4s. Faullowsha ancl

hte. Salsoan stending ia the huls baling to ons ansthes. As 7

isalied into Mr. Davis's elfiez, ho uas noe the.c. I returned

to my Office is route Ms. Falliswski ead the same Curcasic: fenule

wese standing in tie hall taltiing. Tus elevator came and the

Caccasian tomate, Ms. Steels, got in the clevator. I went ts

my office and pickad GO Ms. Palxows!ii's memorandum asd went to

hez office. She was not thess. She arrivec in a faw minutes,

went in her ofzice and asked ne what gid I want that was so im

stant. I told ber that Mr. Davis and tr. Push had beon to me

this morning about their comsliarce problems and that I was

unable to answer then becaus2 I did mot know and do’ noe Imow

what procadure she wants us to follow. She said let me discuss

Davis's problem first: She said, “I tola you yesterday what my

position was on chat and I'm not going to discuss it anymore.* °

I said, “Very well, it makes no ditfererce to me if you want 3

to give out confi icting and errcreous instructions to the super~-

wisors.° I turned to go cut the door and she said, "Just a ;

minute. Give me Muse's memo." I said I do not have it. She

said*you have it in your hand. I order you tq give me itise’s

meso. “ } Sumped us f=s- imaimer desk in an ans-w marse=

and clared at me as 34 she cnt ti)? me ANS sm@ ran to a type

writes in ner ofi:ce and typed something sa a pieca of paper, she

Jumped up and held the paver over her face. I asked. "Is that

all Ms. Falxowski?” and as I turned to leave she had the paper

over her face. 2 thereuson threv the pacer s- my Sodv_ a-

s J threw it back ar ber anc ans: as =e 23S? y23 dasa

v. 3G So 43S _ shaxins and seersa ts be ont of cons rel of

ersel= ans scassed ser csat ana Tan cut of the office.

I have had no further contact with Ms. Falkowski.

There are other matters that are of importance in this matta-

that neec to be stated here. tis. Falkowski. Ms. Walsh and

Mz. Alvin Colub are in constant communication with each othe-.

Ms. Falkowski has stated that Shey must accomplish my: removal

, before Ms. Walsh and Mz. Colub icose power with the chanse cof

stacec t5 Mr. Jesérry in she

presence <5 >. Beas-ey, “=. Ber: ana ser + an Feszy chat sre

administration. « Falkow2zt: :

hate oe |

2 lel

a4 f oo at

wetted not hetctrreonss bem: tones. --*T will dic aml oo £3 pet 7d

Bee em § deve sleeve att 7 hinge, GI NCCE Sen are, G6 fete. ne

Te CULAO eek WENO ast we Fae tte sake WE LATCY house ces~ while

moeting because of her rag‘. :

Zs is my firm belicf that Hs. Selkowshi stuzts thoec Slasceuns

first, because of her intense rzrial prosics. secsrs. because

of her gross incomoetcnce in the coupliance ard mansgutcnt areas,

and@ third, the deep hate and jcalorsy of ms.

ae -

oes eee:

‘

}

UNITED STATES GOVERNMENT SQUAL EMPLOYMENT OPPORTUNITY COMMISSION

2121 STH AVENUE, NORTH

Memo ran dum BIRMINGHAM, ALABAMA rciecnene

TO ; Evelyn Falkowski ; ie

District Director DATE: 7/10/78

() da reply refer to: ;

FROM : Bertram N, Perry Prk ee 7] ene Fe

__.__ Deputy _Director .___ .___..-_---.-- -.-

—— mn ce ce A et A OF a Te dial

A Oe A

SUBJECT: Answer to Evelyn Falkowski's Memorandum to B. N. Perry

Dated June 7, 1978

I agree that the control unit has to be improved. If

you will recall, you started a destruction mission of re

the control unit en you rst came to s office

and your mission appears now successtul. <Atter

completely destroying the unit you now would like to

put the blame on me. It you Will recall, u have signed

-_geveral documents llegi ir ne

supervisor © é control unit. You have assigned and

reassigned every person in the unit at some point and

time. You have removed two ople from the unit, never

ft hose of us'who were familiar with

Director to let mé supervise the unit. May 1 remind

you that a conversation the control unit

occurred on June 30, 1978, when I told you for the |

third time that Ms. Foote was going on ieave and asked

at_ arrangements were Going tO be made. You statec

that you aia not want to tell Ms. Washington about your

plans because she would surely not report to work on the _

3rd_and she would blow up. You made several other

statements that I will discuss later. There is little

doubt in anyone's mind as to who destro the control

unit, and who causes the confusion in s office.

1. I informed you fully that Ms. Foote was t three

-weeks leave, Id me to get Ms. Ann Washinc on

functions. d you th - Washington

no longer worked in that unit and that I foresaw a lot

of problems if I went directly to Ms. Was n

as x ell anyone an ut perfo tasks

in the unit. You told me that you would handle the

om,

matter. I obtained Ms. Mim's promise that she would

HOt go on leave until after the 4th of July to help

“+ —-—et -the.work -out -in the-control unit. --Z find no -merit-

and no health in your accusations in Paragraph l.

2. It is a fact that when 1 discovered Ms. Foote :

was destroying EEOC files pursuant to your written 2

instructions, I asked her to cease. I had to obtain

the permission from the Region to do so. Permission.

to have Ms. Poote stop

Mr. Beasley. Apparentl

for the destruction o

attention. Now

if I had s

wh Bia ;

3. left your office because yor

a_staple machine at me when I faTz

report to the United states Attorney any further des-

tructions of the files in the indiscriminate manner you

had outlined because I knew it would be a violation oL

the law to indiscriminately destroy Agency documents.

by ¢

I assure you that your will not c

ic chai eave

your office a:J inmeaiateIy call Mr. Jeffrey and report

another one of your filthy tricks.

4. It is amazing how any question that is asked of you

when you don’t know the answer, and usually do not

know the answer, amounts to insubordination. n

Mr. Davis talks to you it amounts to insu nation.

You_have : apitalized on_beine a white female by screaming

engaging in the use of_racial epita and

Se evs Cos fA Ok ne “hac eee

‘

‘ ‘

-3-

questions it amounts to sound judgement. I find it

.. . «— ixyonic that Mr. Nelson ijis_your star witness for all

of the petty skirmishes you engage in. I find it in-

credible that pega ae Le Popeye agp eo according £e agency

ming. it pes =O be confirmed Tie Of...

who spends a great deal of her time soliciting help

rom Supervisory § f, or any other willing

participant, to get rid of me can be interested in the

efficiency of this operatioh.

5. Paragraph 5 deserves little attention but might

I bring it to your attention that vi

in the office caused me to have to :

It appears to me that you

Notes Regarding Exhibit E from Evelyn Falkowski ,

(Notes - July 1978)

Perry's memo of 7/7/78 contains numerous false statements and

distortions. It is not possible to show the pronegn merely by

underlining what sometimes is represented as —— S perception.

~ ce - * “es

I deny Perry's accouut, and have underlined where/is giving e

false account. Eycept for my word, I can offer no dence on

some points, but will gladly submit an affidavit and undergo

enectlenion’

e 2 he characterizes my actions as completely

pestle ess and my analysis of situations as totally

ridiculous. Is this e tolerable resnonse to direction?

3 In alluding to Charles Devis he alludes to a conversation :

in which he and Davis incorrectly said I was violating

regulations.

Notes Regarding Exhibit F from Evelyn Falkowski

False statements or distor#tions are umiiexx underlined.

Note Perry says I started a destryction mission of the control unit,

removed two people from the unit who bid out » destroyed the

control unit, cause confusion.

Note that on page 2, —— saying I tried to cause him to destory

govermment property, Perry says:

Rou a meee ebtes’ Se nepe $6 as if

ve me the instruct te Follow the

pea oe Sous’ Be 8. be a

fear bat ween For

*e-e

ANSWER TO SPECIFICATION 124 (CONTINUED) ’

I knew you would heve heard much about me which wasn't good, but since I believed

in your good faith, I thought communication was the answer,

I tried to giva you tine, but problems wece wucemitting and impossible to ignore,

Perry eccelerated his verbal war against me. I explained to you by telephone

and sometimas by cemorandum that Perry's charges of malfeasance, incompetence,

and sexual misconduct against me were similar to those he made against my prede-

cessor once he became eligible to be Director, My predecessor also was forced to

seek to remove Perry. My predecessor is Black, and I had successfully directed an

integrated office, so Perry's charges of racism against me certainly would seem to m

ay relationships with our subordinates. ty we

be spurious, but those charges chill

*# district director in.the location of his choice, but Perry's

predecessor is now

accusations which can be proven or disproven in many instances have not been .

specifically ruled upon on the basis of all the evidence.

had evasively

could be

At a tim, two weeks ago approximately, when Perry supposedly could barely move

and the uniog

steward, Party suddenly got out of his chair, dropped to his knees, and crawled

over to look under my desk, saying he was looking for‘atape recorder. There was

mo sign of any problem with his back. ae

and to

;

I do, but he distorts the context and degree, and I do not utter racial slurs.

More important, where Perry claims I deliberately failed conciliatica imprope

I cam show proposals declined by Respondent without counter prcsost's. Where

‘ oye 1 suppressed & determination, I can chow I reversed recommendation of those

| mot responsible to determine, Where he says I maintained an improper accusation

ageinst « Respondent, I can show otherwise. Where be caused an agency official

to swear that I issued « determination before I received the file, I can show he 3

misled the agency official and cantshow how. Where he says I changed a determi-

nation after pressure from a private attorney, I can show my change was adverse

to that attorney's interest.

Last month, on my own motion, based on supplemental information I accepted from

Respondent, and the supervisor's recommendation, I withdrew

and a “no cause” determination, Seon Perry, whoa lieve

leave and uninvolved, was saying that his protests, which if there were any

didn’t even know about, led to a determination I issued being rescindod.

: I have tried to communicate the truth, in ave bp dost te ae is

' victims. I cannot believe that facts will not be faced, but I see ao :

for me but co continue to try te set as responsibly as possible, and te contiqus

te try te perceive and tell the truth, ee ;'

of them, I vant to further ansver them ia writing and erally, , ~~

{© *“"""“RANSCRIPT OF PROCEEDINGS FOR PRELIMINARY INJUNCTION |

: Foot. he , ) ‘Perry v. Golub, et al. : | ;

ove "© SCN MO. 75-6-1476-8 filed October 1, 1975 _ aa

Testimony by Donald L. Hollowell ge

Cross-examinati

io Not just that, sir. There was a history

15 which I relate in my statement and in my affidavit

16 which gave me to believe that that was an office .

' which Mrs, Falkowski could not handle, even when she

came, but I had a responsibility to support her in

waas i anihd Sa oecnahun saecasetel 4a cae |

SSOSESSES

APPENDIX A

(Reported 25 EPD 431,488)

IN THE UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Filed and Entered

BERTRAM N. PERRY

Dec 16, 1980

)

Flaintirr, )

Vs. )

) CIVIL ACTION

)

ALVIN GOLUB, et als

NO. 75-G-1476-S

Defendants

MEMORANDUM OPINION ON PLAINTIFF'S PETITION

AWARD OF COSTS AND ATTORNEYS' FEE

This case, which originated in 1975, has

been both long and complicated, has raised

important issues, and has involved a total of

12 hearing days before the Court. The Court

now has before it plaintiff's petition for an

award of costs and attorneys' fee, which

came on for hearing before the Court on

November 26, 1980, at which all parties

were represented by counsel.1t

Plaintiff bases his statutory entitlement

to a fee award on Section 706(k) of Title VII

of the Civil Rights Act, as amended [42

U.S.C.§$1000e-5(k)] and the Civil Rights At-

torneys' Fees Awards Act of 1976 [42 U.S.C.

$1988]. Defendants deny that plaintiff is

entitled to any award and alternatively dis-

pute the amount of fee sought. This Memo-

randum Opinion will set forth the Court's

findings of fact and conclusions of law re-

lative to plaintiff's entitlement to a fee

award and the amount of the fee.

HISTORY OF THE LITIGATION

In order to analyze the contentions

advanced by defendants in opposing plaintiff's

entitlement to a fee award and in disputing

the amount of the fee sought, it is initially

necessary to review, as briefly as possible,

the tangled and complicated history of this

case, although it should be recognized at

the outset that no one who has not lived

through the proceeding will be able without

the utmost concentration to fully follow all

the twists and turns the road has taken.

The case started when plaintiff, who was

then Deputy Director of the Equal Employment

Opportunity Commission (EEOC) District Office

in Birmingham filed his complaint on August

18, 1975. The gravamen of the complaint was

that by means of a "detail", plaintiff was

to be permanently removed from his position

and assigned to another position elsewhere

and that this action was being taken because

he had "blown the whistle" on allegedly im-

proper activities in the agency and because

of his race (black). The complaint alleged

that defendants' actions were violative of,

inter alia, his First Amendment right of

free speech and of 42 U.S.C. $1985.

The Court held a hearing on plaintiff's

motion for preliminary injunctive relief

against the pending "detail" reassignment

and on the basis of the evidence presented

at the hearing, the Court held the plaintiff

had satisfied the requirements for the issu-

ance of preliminary injunction relief and

that he was accordingly entitled to a pre-

liminary injunction. Perry v. Golub, 400

PP. Supp. 409 (N. D. Ala. 1975).

The next event of major significance came

in 1976 when plaintiff filed a motion to

amend his complaint to include Title VII as

a jurisdictional basis. He had filed an ad-

ministrative charge under Title VII, but

at the time the lawsuit was filed in 1975,

the charge had not been pending in the

administrative procedure for the requisite

time, and the motion for leave to amend was

filed upon the expiration of the time re-

quired for administrative handling. The

Court granted the motion for leave to amend,

and plaintiff filed his amended complaint

on May 7, 1976. The case thereafter pro-

ceeded on the original grounds carried

forward by the amended complaint (which

included the First Amendment claim and the

42 U.S.C. §1985 claim) as well as under

Title VII.

Then, in November of 1976, the Court

entered two Orders, and to comprehend the

Confusion which Subsequently ensued, it is

necessary to recognize that there were two

Separte and different Orders, only one of

which was appealed to the Court of Appeals.

The first of those Orders was entered on

November 23, 1976. In that Order, the Court

granted plaintiff's motion to Substitute a

defendant (a point not contested) and to

drop defendant Evelyn Falkowski. The second

Order was entered on November 30. 1976,

That Order was concerned primarily with the

imposing of a sanction on defendants under

Rule 37(b), F.R.C.P., for failure to comply

with a discovery order previously entered

by the Court. During the hearing and meet-

ings of counsel with the Court in connection

with the discovery dispute, the Court was

advised that the 1975 "detail" reassignment

had been withdrawn and that there was then

no presently existing effort to remove

Plaintiff from his position. Therefore,

the Order entered on November 36, 1976 also

dissolved the preliminary injunction but

retained jurisdiction and provided for re-

view by the Court of any effort by defen-

dants to remove plaintiff from his position.

This latter provision of the Order was in-

cluded because it was apparent to the Court

that there was a high probability of a re-

newed effort to remove plaintiff, that being

a prediction which proved to be accurate.

This Order entered on November 30. i976 is

reported as Perry v. Golub, 74 F.R.D. 360

(N.D. Ala. 1976).

The next stage of the proceeding came in

the Court of Appeals. As a preface to dis-

cussion of the events transpiring in the Court

of Appeals, it is necessary to explain the

reason for consideration here of the appel-

late action. The comments to come are not

intended to imply any critical attitude.

The sole and single reason for them is that

defendants are relying on the appellate ac-

tion as a ground for opposing plaintiff's

fee petition, and it is essential to analysis

of defendants' arguments to understand what

happened at the appellate level.

The first step in consideration of the

appellate proceeding requires that we re-

turn to the Order entered on November 23,

1976 which dismissed Ms. Falkowski as a

defendant. (The November 23, 1976 Order was

not part of the November 30, 1976 Order and

is unreported). It is uncommon for a de-

fendant who has been let out of a case to

insist on being put back in as a defendant,

but that was the case here, as Ms. Falkowski

challenged this Order dropping her as a

defendant.

The practical reason behind this effort

to return to the case as a defendant was that

She wanted to have opportunity to take the

witness stand and testify in rebuttal to tes-

timony at the 1975 hearing relative to her.

She had been present during the hearing in

1975, with her own counsel, but had not testi-

fied. Having elected not to testify at the

1975 hearing, she challenged her dismissal

as a defendant in 1976 on the ground that

She should be allowed to remain in the case

So as to testify as a party defendant at any

trial on the merits. Therefore, in pursuit

of that result, she filed a notice of appeal

from the Order entered on November 23, 1976

dropping her as a defendant.

That was the one and only appeal taken

from any Order in this case in 1976. No one

other than Ms. Falkowski appealed the Order

entered on November 23, 1976, and there was

no appeal by anyone (including Ms. Falkowski)

from the Order entered on November 30, 1976.3

The outcome of her appeal from the November

23, 1976 Order was a decision by the Court

of Appeals on the November 30, 1976 Order,

which had not been appealed by anyone. But

to keep the sequence of events in chronologi-

cal order, it is first appropriate to continue

with a summary of the proceedings which took

place in this Court before the Court of

Appeals’ decision in 1979.

During the pendency of the Falkowski appeal

from the November 23, 1976 Order dropping her

as a defendant, defendant EEOC filed a peti-

tion with the Court in 1977 for approval of

@ proposed "adverse action", consisting of

the proposed discharge of plaintiff, which

was subsequently modified to a proposal to

transfer him to Washington, D. C. Plaintirr

alleged that this effort to remove him con-

Stituted a continuation of the previous re-

taliation and discrimination against him.

The issue thus joined was heard by the Court

on a total of nine trial days at various

times, whenever time could be made on the

Court's schedule, between January 1978 and

June 1978. On November 21, 1978, the Court

entered a Memorandum Opinion sustaining the

plaintiff's position. Perry v. Golub, 464

F. Supp. 1016 (N.D. Ala. 1978).

The next chapter in the sequence of

events came on April 25, 1979 when the Court

of Appeals handed down its decision on the

appeal taken by Ms. Falkowski. The appeal

was from the November 23, 1976 Order dropping

her as a defendant, but that Order was not

addressed by the Court of Appeals’ decision.

Instead, the Court addressed itself to the

November 30, 1976 Order (which was not ap-

pealed) and held that this Order had correct-

ly dismissed on account of mootness, that the

effect of such dismissal was to vacate the

underlying proceedings "so as to spawn no

consequences", and that it was beyond this

Court's authority to have entered the provi-

sion of the November 30, 1976 Order requiring

judicial review of proposed adverse action

against plaintiff because the case was moot.

It is necessary to point out further that

the Court of Appeals' characterization of

the Order in this case as a "dismissal" of

the action was not correct. The only dis-

missal aspect of the 1976 Order in this. case

wes a dismissal of a petition filed by de-

fendants as a Rule 37(b) sanction. The Court

would not have dismissed this case in 1976

because it was abundantly clear from all that

was said to the Court in the 1976 hearing

on the Rule 37(b) sanction that defendants

were not by any means through with their

plans relative to plaintiff. It may be pre-

Sumed that the Court of Appeals' characteri-

zation of the Order as a "dismissal" of this

action was generated by the fact that since

the Order had not been appealed and was not

before the Court of Appeals, it was not the

subject of any detailed briefing by couns i,

whose primary focus would have been ont e

November 23, 1976 Order, which was 2 «nly

appealed Order.

Finally, while it is not given to a Dis-

trict Judge to rationalize appellate actions,

the Court believes it understands the

circumstances which resulted in the Court

of Appeals’ action in vacating an Order which

no one had appealed. The Falkowski appeal

from the Order dropping her as a defendant

in this case was consolidated by the Court

of Appeals with another appeal taken by her

from an Order in another case (Civil Action

No. 76-G-545-S) in which she was the plain-

tiff, and in which the plaintiff in the

present case was not a party. This Court

had enterered an Order in her case on Nov-

ember 30, 1976 dismissing her complaint on

account of mootness. That Order in her case

Was based on factual grounds different from

those in the present case. In the present

Case, the Court found in its November 30,

10a

1976 Order that "The records before the

Court demonstrate that there are reasonable

grounds to apprehend a resumption of acts

of alleged retaliation. This being so, the

Court will in the exercise of its discretion

retain jurisdiction of this case for the

purpose of resolving any claims or issues

regarding a recurrence of allegedly retalia-

tory actions against the plaintiff." In

contrast, the Order in her case pointed out

that "there is no suggestion of any reason-

able grounds to apprehend a resumption of

the acts of which the plaintiff complained

in her complaint---." But since the Orders

in both cases had been entered on the same

day, and the Court of Appeals consolidated

the appeals, the impression evidently was

created that the Court had before it appeals

from companion dismissal orders, although

in fact the Order entered in this case on

November 30, 1976 was not a dismissal and

Was not before the Court of Appeals because

it had not been appealed by anyone.

It is now necessary to return to this

Court's holding in 1978 that defendant's

proposed removal or transfer of plaintiff

was in violation of plaintiff's rights.

That Order was appealed by all defendants.

The Court of Appeals decided that appeal

lla

on July 25, 1979, holding that since the

Court of Appeals had held on the appeal

decided in April 1979 that the action was

correctly dismissed on account of mootness,

this Court was without jurisdiction to have

provided for judicial review of proposed

adverse action against plaintiff, and the

1978 Order was accordingly vacated. To

place this ruling in perspective, it should

be remembered that the Court of Appeals’

April 1979 decision, on which its July 1979

decision was based, was addressed to the

November 30, 1976 Order, which had not been

appealed. 4

We may now turn to a happier chapter in

this case. Plaintiff remains employed in

the EEOC Birmingham office, where he is

presently holding the position of Compliance

Manager. The evidence introduced at the

November 26, 1980 hearing included plain-

tiff's employee appraisals for the years

1979 and 1980. To the Court, and indeed to

all who have a sincere interest in the ef-

ficient operation of the agency created by

Congress to assure equal treatment of

citizens in employment, it is a source of

Satisfaction that plaintiff's 1979 and 1980

appraisals reflect a high level of perform-

ance on his part. Both appraisals reflect

l2a

the highest level of performance in practi-

cally all categories. His 1979 appraisal

includes the statements that "He strongly

Supports and enforces the law and agency

policies.---His whole performance during

this period has been excellent and borders

on brilliance." His 1980 appraisal simi-

larly includes the statements that he "is

the most knowledgeable of Title VII of any

that I have ever supervised" and that he

"has consistently performed high-level

management responsibilities (in the posit-

ions of Acting Deputy Director and Compliance

Manager) with exceptional professional skill

and ability---."

With the background of this necessarily

abbreviated history of the case, it is now

in order to consider plaintiff's entitle-

ment to a fee award and, if so, the amount

of the fee.

ANALYSIS OF FEE ENTITLEMENT AND ARGUMENTS

ADDRESSED TO BOTH ENTITLEMENT AND AMOUNT

To a substantial extent, the contentions

asserted by defendants argue that plaintiff

is not enti:led to any award at all and that

if he is, he is not entitled to compensaton

for his attorney's services throughout the

entire history of the litigation. Rather

13a

than first discussing these arguments in the

context of fee entitlement and then again

discussing them in the context of fee amount,

all of these contentions will be analyzed

in this sction.°

A. DO THE COURT OF APPEALS' DECISIONS PRE-

CLUDE A FEE AWARD?

The initial contention urged by defen-

dants is that since the Court of Appeals

Stated in its April 1979 decision that the

effect of the "dismissal" in 1976 on account

of mootness was to vacate the underlying pro-

ceedings "so as to spawn no consequences",

@ fee award is precluded altogether. The

Court cannot accept this view for the

following seperate and several reasons.

First, the undisputed facts are that the

April 1979 decision was based on an Order

which was not before the Court since it had

not been appealed by anyone and that the

Order in this case was not a dismissal of

the action. For defendants to argue that

the Court of Appeals nullified the proceed-

ings in this Court necessarily must disre-

gard the fact, which all parties concede,

that the decision was based on a resolution

of an Order never appealed and on a treat-

ment of that unappealed Order as a dismissal

although it was not a dismissal. ®

14a

Second, the contention that defendants

became the prevailing parties in the Court

of Appeals is not an accurate assessment of

the situation. For one thing, the Court of

Appeals' decision in April 1979 came on an

appeal taken only by Ms. Falkowski, and the

July 1979 decision was based on the April

1979 decision. No attorney's fee award is

sought against her, since she has not been

@ defendant in this case for more than four

years. Moreover, she could not logically

be regarded as the prevailing party in the

Court of Appeals. She appealed the November

23, 1976 Order dropping her as a defendant

in order to be returned to the case so as

to testify. What ensued from her appeal was

no decision on the Order which she appealed

and instead a holding that the case was co-

rrectly dismissed as moot./ Purthermore,

the Court of Appeals' decisions were based

On mootness, and "the holding of mootness

is not a judgment on the merits." DeVolld

v. Bailar, 568 F.2d 1162 (Sth Cir.1978).

See also Johnson v. State of Mississippi,

606 F.2d 635 (Sth Cir. 1979), holding that

plaintiffs were entitled to attorneys' fees

for an appeal which became moot.

Third, the Court of Appeals’ action in

ruling that the "mootness" of the case

15a

meant there should have been no further pro-

ceedings after 1976 cannot accurately be

taken as precluding an award of attorneys’

fees. On the contrary it is settled law

that "a determination of mootness neither

precludes nor is precluded by an award of

attorneys' fees." Doe v. Marshall, 622 F.

2d 118 (5th Cir.1980). See also Rainey v.

Jackson State College, 551 F. 2d 672 (5th

Cir. 1977) and Iranian Students Ass'n v.

Edwards, 604 F.2d 352 k(5th Cir. 1979).

The standard to be applied, as the Fifth

Circuit said in Doe v. Marshall, supra, is

not whether the case is moot, but rather

"The attorneys' fees question turns instead

on a wholly independent consideration:

whether plaintiff is a 'prevailing party'."

In this case, it is undisputed that

plaintiff was the prevailing party in ob-

taining the preliminary injunction in 1975

enjoining the "detail" reassignment from

his position in the EEOC Birmingham Office.

It has never been contended that the Court

of Appeals' decisions had any arguable

effect on this Court's 1975 decision, and

that phase of the case is plainly governed

by the principle that "Even preliminary

relief may serve to make a plaintiff a

"prevailing party' under the statute; the

l6a

lawsuit need not proceed to completion."

Doe v. Marshall, supra.

If that were all which was accomplished

by the lawsuit, cefendants could say that

plaintiff's stat as the prevailing party

expired with thi surt's dissolution of

the preliminary i: junction in 1976. But

there is mucn more in this case. If

every Order entered by the Court in the

five year course of the lawsuit is dis-

regarded, the Court is nevertheless firmly

of the opinion that plaintiff is and has

been the prevailing party from the insti-

tution of this lawsuit until today by

achieving the goal of his lawsuit.

Here again, it is settled law that a

plaintiff is a prevailing party with re-

Spect to attorneys' fee entitlement where

the lawsuit has acted as a catalyst to

the achievement of the sought-for-relief,

even if no court order has been entered.

E.g-, Robinson v. Kimbrough, 620 F.2d

468 (Sth Cir. 1980) ("Even though plain-

tiffs obtained no formal judicial relief

their lawsuit was a significant catalyst

in achieving their primary objective---.");

Dayan v. Board of Regents, 620 F.2d 107

(Sth Cir. 1980) ("the district court found

that the plaintiffs obtained substantial

17a

voluntary relief as a direct result of their

lawsuit. Consequently, the award of attor-

neys'fees was proper."); Williams v. Miller,

620 F. 2d 199 (8th Cir. 1980) ("the fact

that a suit is mooted by voluntary actions

of the defendants is not enough to prevent

plaintiffs from being prevailing parties

within the meaning of §1988."); Donaldson

ve O'Connor, 454 F.Supp. 311 (N.D. Fla.

1978) ("In the case at hand, plaintiff was

released from Florida State Hospital shortly

after this court set a hearing on his peti-

tion for habeas corpus. His release alone

would qualify plaintiff as a 'prevailing

party' and should lead to an award of

attorney's fees."); Buckton v. National

Collegiate Athletic Association, 436 F.Supp.

1258 (D. Mass. 1977) ("The clear intent of

Congress was to award fees to parties who

have effectively succeeded via litigation

even though there may not be any formal

docket entry signifying such success.").

It is necessary, in applying this prin-

ciple, to be satisfied that the lawsuit in

fact was the causal impetus in the achieve-

ment of the sought-for result, because

without such a showing, fee awards could

unjustifiably be obtained on the basis of

acticns which would have been taken regard-

18a

less of the lawsuit. The present case

abundantly satisfies the standard of the

Sought-for relief being achieved as a

"ect and proximate consequence of plain-

.°'s lawsuit. This fact would appear to

oO: undisputed. Nevertheless, in order that

there will be no doubt on the subject, the

Court hereby finds as a fact that plaintiff

achieved through the filing and pendency of

this lawsuit the goal which he sought, that

being to continue his employment in the EEOC

Birmingham office. The Court further finds

that had it not been for this lawsuit, he

vould no longer be employed with the EEOC

and at the very least would have relegated

to a position not commensurate with the

high degree of skill and abilities he has

brought to bear in the peformance of the

positions he has held in the EEOC Birmingham

Office. The Court accordingly finds that

plaintiff is the prevailing party by virtue

of having achieved through the lawsuit the

relief which he sought.

B. IS PLAINTIFF ENTITLED TO AN AWARD COVER-

ING SERVICES SINCE NOVEMBER 30, 1976?

It is appropriate, while the subject of

the Court of Appeals decisions is under

discussion, to consider defendants' related

contention (addressed to the amount of the

19a

fee award) that plaintiff is not entitled

to any fee covering the period subsequent

to November 30, 1976 because, under the

Court of A :als' decisions, there should

have been’. further proceedings in the case

Subsequent :o the entry of this Court's Order

on November 30, 1976. The argument dis-

regards the facts that defendants accepted

the Court's November 30, 1976 Order without

any appeal and that all of the ensuing pro-

ceedings in this case were occasioned by

defendants' actions in this Court.

If defendants had thought this Court

erred in providing in the November 30, 1976

Order for judicial review of proposed adverse

action against plaintiff, in order to protect

him against a continuation of the mistreat-

ment revealed by the evidence in the 1975

hearing, they should have asserted that

position by appealing the Order. The fact

is that no one appealed the Order. The

reason that defendants did not challenge

the Order is of no legal consequence, but

it may be in order to comment that the Court

would like to think that responsible persons

on defendants' side of the case were as

Shocked as this Court was by the "evidentiary

record [at the 1975 hearing] which reveals

&@ regrettably high handed and improper

20a

treatment of [plaintiff's] rights and of

the outstanding reputation which he has

established as an able and dedicated career

officer with the EEOC."

The further facts are that defendants

thereafter initiated proceedings in this

case in 1977 by petitioning for judicial

review of the proposed adverse action a-

gainst plaintiff, resulting in the nine

hearing days and this Court's decision in

1978. On these facts, the Court cannot

agree that plaintiff should be denied com-

pensation for his attorney's services in

responding to defendants' actions in the

case following the entry of the unappealed

November 30, 1976 Order.

C. IS PLAINTIFF ENTITLED TO A FEE AWARD

UNDER SECTION 706(k) OF TITLE VII?

The Court will consider in order each

of the arguments advanced by defendants

in opposing an attorneys' fee award under

Section 706(k), the attorneys' fee provi-

sion of Title V1I.8

(1) That the case was not based on Title

VII until the amended complaint was filed

in 1976:

This contention (which is addressed to

the amount of the fee rather than to fee

entitlement) argues that Title VII came

ela

into this case with the filing of the amended

complaint in May 1976 and that plaintiff is

therefore not entitled to any award under

Section 706(k) for the period before then.

The Court cannot agree. The addition of

Title VII in the amended complaint was not

based on any new or different transactions

or occurrences but simply added another

Jurisdictional ground to the case and accor-

dingly related back to the filing of the

Original complaint under F.R.C.P., Rule 15(c).

E. G., 3 Moore's Federal Practice 415.15(3)

(2nd ed. 1978) ("An amendment which changes

only the legal theory of the action, or adds

another claim arising out of the same trans-

action or occurrence, will relate back. An

amendment which changes the jurisdictional

basis of an action will also relate back,

the factual sitaution alleged otherwise

remaining unaltered."). Compare Harkless

ve. Sweeny Independent School District,

554 F. 2d 1353 (Sth Cir. 1977), cert.

denied, 434 U.S. 966 (1977), in which the

Court held that plaintiffs snould have been

given leave to amend to add further civil

rights statutes to the case and observed in

So holding that:

"The purpose of [Rule 15(c)] is accomp-

lished if the initial complaint gives

22a

the defendant fair notice that litiga-

tion is arising out of a Specific factua?

Situation.' Longbottom v. Swaby, 397

" #020 95, 48 (Sth Cir. 1968). Such is

precisely the situation here."

(2) That this Court dismissed the Title

VII aspects of the case in 1976:

Defendants next argue that the Order en-

tered by the Court on November 30, 1976 dis-

missed plaintiff's Title VII allegations. The

argument is factually erroneous. The only

dismissal aspect of the Order consisted of

the dismissal] of a petition filed by defen-

dants, such dismissal being a Rule 37(b)

Sanction for defendants' failure to comply

with a discovery order which the Court had

entered. The Court can only assume that

defendants' erroneous characterization of

the Order as a "dismissal" of plaintiff's

Title VII claim, when it Plainly was nothing

of the sort, is based on the Court of Appeals’

reference to the November 30, 1976 Orders in

this case and the Falkowski case having been

dismissals, but the undisputed facts are that

the Order in this case was not a dismissal

and was not before the Court Of Appeals.

(3)That this Court's Opinions were not

based on Title VII:

23a

The next contention advanced by defendants

in opposing an award under Section 706(k)

Of Title Vil is that this Court's Opinions

in 1975 and 19765 were based on infringements

Of plaintiff's Constitutional rights, thus

Snowing, b¥ implication, that his Title VII

rights had not been violated. The argument

cannot be accepted.

The reason the Court's 1975 Opinion con-

tained no reference to Title VII was because

Title VII was not in the case at that time.

(The discussion in the preceding section has

analyzed the relation-back effect of the

amended complaint adding Title VII to the

ease in 1976). It should further be said,

for complete analysis, that it is inaccurate

to say the Court's 1975 Opinion was based

only on a Constitutional right ground. That

was one ground, but the Court also found from

the evidence that there was a substantial

likelihood that plaintiff would prevail on

the 1985(1) ground.

Turning to consideration of defendants'

argument that this Court's 1978 decision

established the inapplicability of Title VII

to the case, it should be noted, as a preface

to consideration of this point, that the

argument raises a conceptual problem, arising

from defendants' position on the one hand

Qua

that the decision was nullified by the Court

Of Appeals and should not be considered and

by defendants' position on the other hand

that the decision should be considered. For

purposes of evaluating defendants' present

contention, the decision must be and is

therefore considered.

There is no doubt that this Court's 1978

decision was in substantial part based on

defendants' violations of plaintiff's Con-

Stitutional rights, as illustrated by the

passage - here relied on by defendants -

that "The evidence is overwhelming that the

proposed adverse action against Mr. Perry

is in retaliation for the exercise of his

first amendment rights." (464 F. Supp. at

1020). But to take that as an inferred

holding that plaintiff's Title VII rights

had not been violated would not be correct.

To begin with, when any Court concludes

in any case that a party is right on one

ground, that conclusion does not operate as

a sub silentio determination that the party

is wrong on other grounds. pemiariy. if

the Court had concluded plaintiff had no

case under Title VII, it would have said so,

and there is nothing in any of the Court's

Opinions expressing any such conclusion.

25a

Furthermore, the 1978 Opinion reflects

the Court's conclusion that plaintiff's

Title VII right to non-racial treatment in

employment had been transgressed. Among

the Court's findings from the evidence was

that a defendant (who is white) had stated

"that Mr. Perry was ‘aggressive or forward

ror a black man.'*" (4&6!

Fe SUPP. a€t 1021).

There would have been no occasionfor the

inclusion of this finding if the decision

had been based solely on the ground that

plaintiff was being subjected to retaliation

for having exercised his First Amendment

right to criticize the agency. The inclu-

Sion of this finding based on racial animus

adequately shows, without any need for

retrospective explanation by the Court,

tht plaintiff's Title VII rights were

very much in the case.

Still further, it is in this case un-—

disputed that both the constitutional and

Statutory grounds on which plaintiff's

case is based arose out of the same set of

facts. Compare Southeast Legal Defense

Group v. Adams, 436 F. Supp. 891 (D.Ore.

1977), holding that the Civil Rights Attor-

neyS Fees Awards Act "provides for an award

Where both fee and non-fee claims are al-

2ba

leged, and plaintiff prevails on the non-free

Claim" when the claims arise out of ug common

nucleus of operative facts.

Finally, when this case is viewed in terms

of the overall result achieved DY Elaintirr,

the criticai inquiry is not what this Court

held at any given time during the history of

the litigation, but rather

had a Title VII claim whicn contributed as a

Catalyst to his becoming the prevailing party,

not by Court decision, out by

goal he sougnt from the first of retaining

his position in tne EEOC Birmingham o

Viewed in that iight, the Court is satisfied

that plantiff is the Prevailing party under

Section 700(k). It is certain that a party

Should not be entitled to an award under

Section 700(k) when he achieves the sought-

for result without his Title VII claim having

contributed to the achievement of that sO

But in this case, the Court is convineed

Chat plaintiff had a substantial 746.0 Vit

Claim which contributed as a Catalyst to

the result which he Sought and achieved.

(4) Repetition of the 1976 arzuments in

Opposition to plaintiff's motion for leave

to amend:

Defendants also argue that plaintiff was

27a

mot entitled to add Title VII to his com-

plaint by the 1976 amendment because the

administrative handling had not been com-

pleted and because defendants were allegedly

prejudiced by the amendment. These argu-

ments were exhaustively briefed by the

parties and resolved by the Court when the

Question was before it in 1976 on plaintiff's

motion for leave to amend the complaint, and

defendants' repitition of those arguments

need not be again decided by the Court.

There have been many complexities in this

case, and deciding the same issue twic

Should not be added to the list of compli-

cations.

bt |]

ams

In sum, the Court finds th

is the prevailing party and

a ©

5 o

Co an attorneys' fee award und

TeG(k) of Title ¥I7,

D. IS PLAINTIFF ENTITLED TO A FEE

AWARD UNDER THE CIVIL RIGHTS ATTORNEYS

FEES AWARDS ACT?

It should initially be noted that since

the Court finds plaintiff to be entitled to

a fee award under Section 706(k) of Title

VII, it is unnecessary to decide fee en-

titlement under any other statute. Never-

theless, in the interest of complete

resolution of all the issues and contentions

raised in the attorney fee proceeding, wne

Court will resolve the question of attorneys '

fee entitlement under the Civil Rights Attor-

neys Fees Awards Act of 1976 (42 U.S.C.$1988) .

This 1976 statute, enacted in response

to Alyeska Pipeline Service Co. Vv. Wilderness

Society, 421 U. S. 240 (1975), authorizes

fee awards in, inter alia, actions to enforce

Reconstruction ere civil rights statutes.-

The following is an analysis of eacn of

arguments advanced by dcefrenaants in opposirny

an award under the Civil Rights Attorneys

Fees Awards Act:

(1) That the case is not based on any

statute referred to the Ac

The position originally taken ty defen-

dants in opposition to the fee petition was

that this case is based on an infringement

of plaintiff's Constitutional rights and

not on any of the civil rights statutes

refered to in the Civil Rights Attorneys

Fees Awards Act.

It is anamolous that the Act authorizes

awards for proceedings to enforce civil

rights under the statutes referred to in

the Act while not making provision for pro-

re)

ceedings to enforce the even more fundam

to the exten e)

are allegedly carried out under color of

State law so as to be within the coverage of

42 U.S.C. $1983. This anomoly is illustrated

by derendants' argument that the "only viola-

tions" were of plaintiff's due process rights

under the Fifth Amendment and his free speech

rights under the First Amendment. However, it

is unnecessary to dwell on this point.

the conclusive fact is that this case is

based on a statute referred to in the Civi

Rights Attorneys Fees Awards Act. The statutes

on which this lawsuit is based include 42

U.S.C. $1985, which is among the statutory

proceedings for which the Civil Rights At-

torneys Fees Awards Act authorizes fee awards.

The complaint (amended and original) alleged

violations by defendants of 42 U.S.C. $1985.

Similarly, in concluding from the evidence

at the 1975 hearing that there was a substan-

tial liklihood plaintiff would prevail on

the merits, the Court relied on, inter alia,

the finding - based on the $1985 ground -

"that the 'permanent reassignment' consti-

tuted an attempt to prevent him from

discharging the duties of his office or to

injure him in his person or property on

30a

account of the lawful discharge of the

duties of his office." (400 F. Supp. at 417).

It is thus apparent that this case is an

action to enforce rights provided by 42 U.S.C

$1985, bringing it within the categories of

cases for which fee awards are authorized by

t ivil Rights Attorneys Fees Awards Act.

)

e VII provides the exclusive

The argument principally relied upon by

defendants is that plaintiff, as a Federal

employee, has no enforceable rights under

§1985 because Title VII provides the exclusive

and preemptive statutory remedy for Federal

employees.

It is true that to the extent a Federal

employee is suing to redress acts or conduct

proscribed by Title VII, then Title VII is

the exclusive source of his statutory rights.

The Supreme Court established this principle

in holding in Brown v. General Services Admi-

nistration, 425 U.S. 820 (1976) that Section

717 of Title Vil is “an exclusive, preée-

emptive administrative and judicial scheme

for the redress of federal employment discri-

mination." It follows that while $1981 was

among the statues invoked by plaintiff's

complaint filed in 1975 prior to the Supreme

Court's decision in the Brown case, he

3la

cannot now be regarded as having an enforce-

able $1981 discrimination claim.

However, the result sought by defendants

goes much further than that, because defend-

ants would have the Court hold that under the

Supreme Court's decision in Brown, any and

all rights Federal employees have under each

and all of the Reconstruction civil rights

law have been preempted by Title Vil.

The Court considers that to be a wholly

unjustified expansion of the Broyn holding.

The rationale of Brown is that when Congress

amended Title VII in 1972 by adding to the

Statute $717 of Title VII, bringing Federal

employment within the coverage of the statute,

it intended $717 to be the exclusive remedy

for causes of action based on rights provided

by Title VII, and since racial discrimination

in employment is proscribed both oy Title Vil

and by $1981, there is no longer a $1981 cause

of action in Federal employment for racial

discrimination. To proceed from this proposi-

tion to the conclusion that there is no cause

of action in Federal employment to enforce the

rights guaranteed by every other civil rights

law would be an illogical and disastrously

far-reaching result.

Nevertheless, defendants argue that this

result is mandated by the Fifth Circuit's

32a

decision in Newbold v. United States Postal

Service, 614 F.2d 46 (5th Cir. 1980), in which

the Court held that the plaintiff could not

sue under Title VII because he had not followed

the administrative steps required for suit

under that statute and that he could sue under

§1981 because Title VII is exclusive "for

redress of federal employment discrimination."

The Court then stated, in the passage of the

opinion relied on by defendants, that:

"There is no union or individual defendant

in Brown, so it does not squarely control

with respect to suits under §:981, 1983 or

1985 against Moore and APWU. However, the

Brown court's broad language on preemption

and exclusivity suggests that there is no

cause of action against individuals under

§1981, et seq."

This Court is firmly convinced that the

Fifth Circuit's comment in Newbold was not

intended and should not be taken to establish

any rule of law for this Circuit that Federal

employees must find their statutory civil

rights in Title VII or else have none.

To begin with, the comment should be read

in the context of the case before the Court

of Appeals. The plaintiff there alleged

discrimination and a conspiracy to discrim-

inate, so it was clear, under Brown, that he

33a

had no discrimination cause of action under

$1981 There was no allegation of a cause of

action based on rizhts guaranteed by any other

Similarly, Newbold was a brief per curiam

Opinion containing unmistakable indications

of the Court's conclusion that the pro se

complaint there was frivolous, and this Court

cannot believe the Court of Appeals intended

its disposition of such a case to create the

far-reaching and significant impacy of limit-

ing the statutory civil rights of Federal

employees to Title VII alone.

Moreover, the argument that such was thi:

Court's intention in Newbold is at odds with

the detailed and exhaustive consideration

which the Court gave to the civil rights of

Federal employees in Porter v. Califano, 592

F.cad 770 (5th Cir. 1979). Porter was a rever~

Sal of this Court, and this Court considers

it to have been an entirely correct reversal.

When the case was before this Court, the plain-

tiff disclaimed reliance on the claim asserted

in her complaint alleging her First Amendment

right of free speech was violated because she

received a disciplinary suspension in retalia-

tion for making protected speech. Since she

disclaimed reliance on this claim, this Court,

ith misgivings, did not consider the merits

ark

34a

of it. When the case reached the Court of

Appeals, the First Amendment claim was re-

activated. The Court held she was entitled

to a trial on the merits of her First Amend-

ment claim, that being precisely the result

this Court would have reached if she had not

disclaimed reliance on the claim when the

ease was in this Court. The tenor of Judge

Goldberg's opinion for the Court of Appeals

in the case reflects an unmistakable deter-

mination to establish that Federal employees

not to be relegated to second class citizen-

ship in the enforcment of their civil rights,

as illustrated by the following passage from

the opinion:

"This case involves the constitutional

and statutory rights of a federal employee

punished for speaking. In recent years,

Congress and the courts have come a long way

in expanding and fortifying those rights and

in conferring on public employees citizenship

of the first class. This decision is another

episode in that journey."

it is thus this Court's opinion that Forter

and not Newbold provides the accurate guide

to the way in which the District Courts in

the Fif'th Circuit sould view the assertion of

civil rights claims by Federal employees.

35a

Furthermore, the argument that Newbold

limited the statutory civil rights of Fed-

eral employees to Title VII alone is addi-

tionally at odds with the Supreme Court's

decision in Davis v. Passman, 442 U.S. 228

(1979). In that case in which the plaintif?¢

Sued on a Constitutional tort theory alleg-

ing sex discrimination n employment, the

defendant argued that Brown limited her to

Title VII and that since she had been a

coverage

Congressional employee outside the,

of Title VII, she had no cause of action.

The Court rejected the argument and held

that "$717 [of Title VII] leaves undisturbed

whatever remedies petitioner might otherwise

possess."

So also here, this Court concludes that

encactmentof $717 bringing Federal employ-

ment within Title VII did not deprive the

plaintiff in this case of the statutory

civil rights guaranteed by $1985.

(3) That $1985 does not allow relief

against Federal officials:

The next contention advanced by defend-

ants in opposing plaintiff's entitlement

to an award under the Civil Rights Attorneys

Fees Awards Act is that "Section 1985 does

not allow relief against the actions of

36a

federal officers acting under color of

federal law."

Tne conclusive answer to the argument is

that it is contrary to the Supreme Court's

decision in Butz v. Ecoriomou, 438 U.S. 478

(1978)... In that lawsuit by a FedGerai employee

alleging that officials of the Department of

Agricuiture had retaiiated against him because

of his criticism of the department, it was

argued on behaif of the defencants that they

were protected by immunity. The Court ex-

pressed its rejection of the argument as

lollows:

"The single submission by the United

States on behalf of petitioners is that all

of the federal officials sued in this case

are absolutedly immune from any liability

for damages even if in the course of enfrorc-

ing the relevant statutes they infringed

respondent's constitutional rights and even

if the violation was Knowing and dcliverate.

Although the position is earnestiy and ably

e United States, we are quite

* ) ' em,

presenteu by tn >

sure that it is unsound and consequently

reject it.”

With the Supreme Court having estadlished

that Federul officals are not immune from

’

37a

liability for damages in these circumstances,

this Court is satisfied that the defendants

in the present case cannot claim immunity in.

Similar circumstances. By the same token,

this Court does not consider the application.

of Butz to be confined to Constitutional tort

cases and is. of the opinion that is it equally

applicable to cases alleging a violation of

the rights guaranteed to citizens by §1985.

Compare Stith v. Barnwell, 447 F. Supp. 970

(M.D.N.C. 1978), which was a suit alleging a

conspiracy by Federal officials against plain-

tiff (a former empoyee) because of his efforts

to increase minority participation and racial

equality in Housing & Urban Development pro-:

grams. The Court stated that:

"That Court notes that there is nothing in

the language of §$1985(1) to preclude its

application to defendents who were acting as

federal employees, given an otherwise appro-

Priate set of circumstances.---There would

appear to be no constitutional infirmity with

construing $1985(1) to include defendants who

were acting as federal employees. The Court:

is of the opinion that §1985(¢1) would apply ;

where defendants who were acting as federal

employees were participating in a conspiracy

otherwise proscribed by the subsection."

28a

a 7

(4) That a cause of action under $1965

requires a showing of class—biased animus:

The next contention advanced by defendan

}

in opposing to an award under the Civil Rights

Attorneys Fees Awards Act is that there can

be no maintainable claim under $1985 unless

defendants' actions were based on a racial

or other class-based animus, and, according

to defendants' view, “Plaintifit has ciearly

‘animus an

‘4,000S ai

made no allegation of class-based

5°

the Court has meade no such fin

The arguement is not well-

based animus reauirement ws establis":ed

Griffin v. Breckenridge, 403 U.S. 88 (1971)

with reference to $1985(3), which proscribe

a conspiracy to deprive a person or class o

persons of the «equal protection of the iaws

The defendants' argument assumes that class-

based animus is an essential element of $1985

(1) as well as $1965(3), but that is not an

acceptable assumption. On the contrary, to

engraft the class-based animus requirement

into $1985(1) wculd virtually negate the

operation of thet provision by preciuding

its applicability to all situations except

those in which tnere is a class-wide animus

against citizens in the performance of the

@uties of public office.

Furthermore, :ven if it is assumed

Bhd f

1 mn u aoe

ken. The class=

39a

ass—baseu animus

arguendao that the cl

requirement of §1985(3) is applicable to

1985(1), the Court is convinced that this

requirement is satisfied in the present

case in two alternative respects.

It is firgt of all satisfied by allega-

Cion, proof, and finding of fact that defend-

ants' actions were motivated in part Dy ani-

mus against plaintirf because of his race, he

being a black person who spoke out in criti-

cism of his white Superior in the agency and

Obtained a preliminary injunction which was

conceded by defendants to be an "embarass-

ment" to the white official of the agency

who orirginated the "detaii" reassignment

So also, the Court concludes that if the

class-based animus requirement is part or a

§1985(1) case, it is further satisfied by

proof that defendants' actions revealed

animus toward agency employees other than

plaintiff who have functioned as "whistle

blowers" in speaking out in opposition to

agency actions. The evidence before the

Court included uncontroverted proof that

an agency employee who criticized one of

the defendants in this action was trans-

ferred and has not been promoted since

then. It similarly included undisputed

40a

proof that another employee who had

icsm of the agency nas

received unfavorable treatment. That,

in the Court's judgement, would amply

establish class-based animus if it is an

element of a $1985(1) case. Compare Britt

v. Suckle, 453 F. Supp. 987 (E.D. Tex. 1975),

in which the Court held that if class-based

animus is an element of a $1985(2) case, it

was satisfied by the allegation that employees

were "harrassed and prevented from vindicating

their right to workmens'compensation benefits

in the state courts."

The above constitute all the arguments

asserted by defendants in opposition to fee

entitlement under the Civil Rights Attorney

Awards Fees Act.1° The Court cannot agree

with the arguments and finds that plaintiff

is a prevailing party entitled to an attorneys'

fees under the Civil Rights Attorneys Fees

Awards Act.

E. WAS THE FEE PETITION TIMELY FILED?

The fee petition was filed on December 26, —

1978. Defendants' position that this was not

a timely filing is based on the following

contentions:

(1) That the fee petition should be treated

as a Rule 59(e) motion to alter or amend judge-

ment:

This contention is based on this Court's

November 30, 1974 Order having ineluded a

provision that "The question of costs is

S d for future determination by the

Court.«* pia: 5 OF

{ F.R.D. 369). The theory con-

November 30, 1976

structed oy defendants on the basis of this

O on or the 1976 Crder is that the term

"costs", as used in such provision, did not

ttorneys' fee, that the fee

hus in effect a motion to alter

on Of the Order, and taat

under F.R.C.P. Rule 59E(e), it was required

thin ten days following

ate

to have been filed w

€

z t does credit to the ingenuity

of defendants’ able counsel, but it is unsound,

because the term "costs" as used in this pro-

vision of the Crder was intended to encompass

attorneys' fees. Moreover, the statutes under

which a fee award is requested define the

term “costs" as including attorneys' fees.

tion- 706(k) of Title VII and the Civil

rneys fees Awards Act refer to "a

(2) That a motion for costs must be filed

within 5 days:

Defendants' alternative argument that "Rule

42a

54 provides that a motion for costs should be

filed within 5 days" is not correct. The

provision of Rule 54 cited by defendants is

Rule 54(d), which provides that "Costs may be

taxed by the clerk on one day's notice. On

motion served within 5 days thereafter, the

action of the clerk may be reviewed by the

court."" This provision is totally without

application here because the petition is not

before the Court on review from any taxing of

costs by the Clerk. The princicple which is

applicable here is that "Rule 54(d) contains

no specific provision as to time for taxation

of costs---." 6 Moore's Federal Practice

™548.77(9) (2nd ed. 1976). A petition for a

fee award should be filed within a reasonable

period of time following the conclusion of a

case or a stage of a case, and that was done

in the present case since the petition was

filed within a month following the Court's

decision in.November 1978, which was the

last stage in proceedins on the merits in

this Court.

F. SUMMARY OF DECISION AS TO FEE ENTITLEMENT:

Based on the facts and points set forth

above, the Court finds that the fee petition

was timely filed and that plaintiff is enti-

tled to a fee award as the prevailing party

43a

under either Section 706(k) of Title VII or

the Civil Rights Attorneys Fees Award Act,

Or both.

It is therefore in order to turn to con-

sideration of the appropriate amount of the

fee to be awarded.

DETERMINATION OF A FAIR AND REASONABLE

FEE AMOUNT

The amount of the fee award requested by

plaintiff at the hearing on November 26,

1980 is based on the amount of time, with-

out any premi'm or bonus add-on. Plaintiff's

lead counsel I.2s 1,094 hours in the case,

associates in .is law firm have 276 hours,

and law «tud Ss employed by his firm have

178 hours./° At the requested hourly rates

of $75 for ead counsel, $40 for associates,

and $20 f law stucents, the fee award

sought is 96,650.13

A. ANALYSiS IN LIGHT OF THE JOHNSON FACTORS:

Our Court of Appeals' opinion in Johnson

v. Georgia Highway. Express, 488 F. 2d 714

(5th Cir. 1974) is the leading decision, not

only in this Circuit but throughout the

Nation, on the evaluation of attorney fee

requests in civil rights cases.t4 The follow-

ing sections will evaluate the reasonableness

of the request in light of the l2 factors

which the Court expressed in Johnson as guide-

lines for the assessment of fair attorneys'

fees.

(1) Time and labor required:

Analysis of this factor will start with

defendants’ arguments relative to certain

parts of attorney time which defendants say

should be disallowed or reduced.

The contention that all work subsequent to

November 30, 1976 should be disallowed has al-

ready been analyzed and rejected. It is enough

to rei.erate that defendants did not appeal or

contest the November 30, 1976 Order and that

all of «he work done by plaintiffs' attorneys

there er relative to the merits of the case

was asioned by defendants' renewal of the

pro. .edings in this Court.

efendants also argue that the time spent

by viaintiff's attorney in work relating to

former defendant Evelyn Falkowski ought to be

disallowed because the present defendants

should not be responsible for work relating

to her. The time which defendants ask the

Court to disallow on this theory consists of

work in connection with the Falkowski appeal

from the November 23, 1976 Order dropping her

as a defendant, depositions of plaintiff and

other EEOC personnel noticed by her during

45a

the period she was in the case, and discus-

sions with her counsel.19

The proposition relied on by defendants

is that an award should be apportioned among

multiple defendants and that one defendant

should not be liable for work done with re-

Spect to other defendants. This proposition

is sound in theory but without application

to the facts of this case. No separate or

different claim was asserted with respect

to her. The allegation instead was that she

was among those persons who have acted adver-

sely to plaintiff. By 1976, it had become

apparent that her presence as a defendant

in the case was unnecessary and, in retro-

Spect, that she need not have been joined

as a defendant to begin with. However, that

Which was apparent in 1976 is not determina-

tive of the appropriateness of her joinder

at the outset of the case in 1975 when the

full range of facts had yet to be developed.

In these circumstance, her presence in

the case from 1975 to 1976 cannot accurately

be divided into a separate and independent

compartment and is accurately to be tre wed

as an integral part of the case. For

example, the Court has no doubt that defen-

dants's attorneys reviewed plaintiff's depo-

46a

‘Sition noticed by Ms. Falkowski. Similarly,

Witnesses called by defendants at the 1978

hearings included persons whose depositions

were taken by Ms. Falkowski during the time

she had been in this case.

It is next contended that the amount of

time spent in legal research for the pre-

paration of the complaint in 1975 and the

preparation of the complaint should be

reduced by. one-half.

Initially, it must be noted that while

defendants say plaintiff's lead counsel

had 24 hours in that work, the fact is that

complaint preparation was only part of that

24 hours. The time in question consisted

of the attorney's meeting with plaintiff,

preparation of the complaint, preparation

of plaintiff's first set of interrogatories

to defendants, and preparation of plaintiff's

first request for production of documents.

The Court is satisfied that 24 hours was

entirely reasonable for that work, parti-

cularly since the complaint was not a run-

of-the mill pleading and since a review of

the Court shows the interrogatoiies and

document production request to have been

extensive and the product of obviously

painstaking work.

47a

The contention advanced by defendants

appears to be addressed primarily to 5l

associate hours in legal research relative

to the complaint and the preliminary in-

Junction motion in 1975. It is certain that

this associate time should be disallowed or

at least sharply reduced if the institution

of this lawsuit in 1975 has been guided by

relatively settled precedent or if there

had been no significant legal problems to

be considered at the outset. But that was

most assuredly not the situation.

The Court recalls the arguments of counsel

in 1975 relative to significant legal ques-

tions relative to the maintainablility of the

case, such as defendants' insistence that

plaintiff was obligated to use internal ad-

mistrative remedies and defendants' additional

contention that only in extraordinary circum-

Stances may a Court look behind personnel

actions taken by the Government. So also,

briefs were filed with the Court by both plain-

tiff and defendants at the outset of the case,

and without the legal research at that time,

1is lawsuit might have stumbled in leaving

the starting blocks and fallen behind in the

wake of the legal arguments presented by de-

fendants. In the particular circumstances

48a

of this case, the Court finds that this legal

research time was reasonable.

It is next contended that time spent by

associates in legal research relative to tne

legality and admissibility of a surreptitious

tape recording should be reduced by one-half.

“The amount of time in that legal research

(128 associate hours and 21 law student hours)

is unquestionably high, but that research time

must be viewed in the context of the unusual

and complex questions on the subject. It

entailed research into such questions as the

effects of the defendants' attempted use of

a tape recording made in violation of an EEOC

Order and the admissibility vel non of the

tape under the Omnibus Crime Control & Safe

Street Act. A considerable amount of time

and attention was given by the parties to this

subject during the 1978 hearings, and the re-

search done on the subject is reasonably to

be regarded as having made a signivicant con-

tribution to the logic and appealof plaintiff's

arguments, with which the Court agreed. The

Court will therefore allow the associate and

law student time spent in this legal research.

Defendants next argue that plaintiff's lead

counsel spent too much time in trial preparation

for the 1978 hearings and that this trial pre-

49a

paration time should be reduced. 16 The Court

has given careful consideration to the diffi-

cult task of passing judgement on the reasona-

bleness of an attorneys' trial preparation

time and concludes that in the particular

circumstances of the present case; the time

devoted to such preparation was reasonable.

The following points lead to this conlusion.

First, there is no suggestion that any of

the time recorded by plaintiff's attorney might

have been in the least inflated. On the con-

trary, it is undisputed that plaintiff's lead

counsél actually had more time in the case

than that which he recorded and for which

compensation is requested, since he does not

record time of less than 15 minutes a day.

Second, it was the Court's own experience

as a trial lawyer that the thoroughness of

trial preparation usually bore a direct rela-

tionship to the quality of performance in the

courtroom. There is a genuine truth in the

familiar adage that "you can overtry your case,

but you can't overprepare it." In the present

case, lead counsel was faced in 1978 with the

task of saving the plaintiff's career from

defendants' efforts to terminate his employ-

ment or (at a subesequent stage in the hearings)

to transfer him to a position in Washington

50a

ment of one of the individual deferdants.

That counsel was able to save plaintiff from

these results was in no way att ibutable to

any failure of proof on the part of defen-

dants' attorneys, who ably and forcefully

presented evidence in support of defendants'

position. It was instead attributable to

the ability of plaintiff's attorney, obvious-

ly based on thorough trial preparation, to

prove through the evidence that the personnel

actions proposed by defendants were motivated

by unlawful considerations.

The point may be illustrated by specific

example. The evidence showing mistreatment

of plaintiff was for the most part obtained

by cross-examination of defendants' witnesses,

and the success of that cross-examination in

obtaining admissions from defendants' witnesses

damaging to defendants' position was in sub-

stantial measure the product of counsel's

obviously detailed knowlege of the contents

of voluminous documents which were used in

Cross-examination to elicit reluctantly-given

testimony from witnesses.?/ Similarly, dis-

parate treatment of plaintiff was proven

through the introduction of exhibits, prepared

by his attorney from documents obtained from

5la

defendants' files through discovery.

Having observed first-hand the performance

of plaintiff's attorney at the 1978 hearings,

the Court entertains not the slightest doubt

that the quality of his representation of his

plaintiff in the courtroom was attributable

to the thoroughness of his trial preparation.

The Court does not believe it would be fair

or right to downgrade the amount of time he

put into that thorough and productive trial

preparation.

Third, there is another adage of legal

folklore which has application in evaluating

the reasonableness of trial preparation time.

As the saying goes, "The secret of being a

succesSful trial lawyer is simple. All you

have to do is work on your case for five

minutes longer than the lawyer on the other

side.” in this case, plaintiff's‘ attorney

faced formidable and capable counsel on the

other side of the case. It was evident to

the Court during the many days of the 1978

hearings that defendants' attorneys had

devoted substantial attention and time to

their trial preparation, and they: too were

outstanding advocates in the courtroom.

Moreover, it should be noted that plaintiff's

attorney tried the 1978 hearings by himself

52a

(accompanied at times Dy a law student em-

ployed by nis firm who, no

to the bar, did not participate in the exan-—

ination of witnesses), while defendants were

represented Dy two lawyers throughout the

hearings.

tT: is aiso in order

work performed by plaintiff's counsel in 1978

was made necessary by the action taken by

defendants in filing a petition with the

Court's decision in 1975 on the preliminary

injunction issue, entered at a very early

stage in this case, included the following

comments:

"Having reviewed tne complaint before the

hearing, the Court carried the initial impres-

sion into the courtroom that me. Ff

nave a difficult burden of proort to justify

the issuance of a preliminary injunction

against the ‘reassignment of an official of

an administrative agency. By the end of the

day long hearing, the Court was firmly con-

vineed that the evidence had overwhelmingly

shown a flagrant mistreatment of a public

servant of whose dedication and insistence

upon quality workmanship were conceded even

by the defendants ana who clearly deserved

commendation and not punisnment for having

53a

the courage of his convictions to speak

out~——." (400 PF. Supp. at 420).

That was spoken in the context of the

evidence presented at the preliminary injunc-

tion hearing and therefore was subject to

being changed in light of additional or

different evidence, but it nonetheless cer-

tainly gave notice of the reaction this Court

had to the evidence establishing the flagrant

mistreatment of a Government employee. The

case could and should have been resolved

internally at that point, with only a minimum

expenditure of time by plaintiff's attorney.

But. as the evidence at the 1978 hearings con-

Vincingly showed, defendants instead pursued

a course of continuing mistreatment of plain-

tiff, culminating in the issues which became

the subject of the 1978 hearings. Indeed,

the facts are that defendants reacted in an

extremely negative fashion to the 1975 Opinion

and treated it as an "embarassment" to be

rectified by renewed efforts to remove the

plaintiff because of his role in having

initiated the lawsuit. In sum, the Court is

not’ sympathetic with defendants' argument that

plaintiff's attorney overprepared for the 1978

hearings when the plain fact of the matter is

that none of this time would have been neces-

54a

Sary if defendants had not continued to mis-

treat the plaintiff. One of the most

counter-productive of human emotions is a

desire for revenge, and having indu’sed them-

selves in that emotion, defendants fairly

be required to pay the price.

The final contention advanced by <efendants

relative to the time factor is that the time

spent by lead counsel in collecting, reviewing,

and indexing documentary materials in prepar-

ation for the hearings should be compensated

at the lower $40 associate rate, the theory

being that he should have delegated these

tasks to associates or law students.18 In

urging this argument, defendants rely in part-

icular on the explanation in lead counsel's

affidavit that he prepared for examination of

defendants' witnesses at the 1978 hearings by

preparing a notebook indexing his two file

drawers of documents and reviewing the note-

book at every available opportunity "to try

to memorize the documentary evidence and its

source so relevant documents could be located

as quickly as possible during the trial."

It is true enough that the task of merely

collecting and indexing do

cal function which should n

55a

and the Court should not be understood as

establishing any precedent for compensation

at attorney rates for the performance of cler-

ical functions. But in the context of the

circumstances of this case, the Court believes

defendants' argument misses the point of the

documentary work performed by Hleintifi's

attorney. It was not the performance of a

clerical function. Given the burden of proof

faced by plaintiff's attorney during the 1978

Nhearings, it was essential for counsel to be

able to elicit proof of mistreatment of the

plaintiff through defendants' witnesses and

defendants' documents. The achievement of

this task was due in substantial measure to

ene ability of plaintiff's attorney to ob-=

tain testimony damaging to defendants' case

by referring, with Only minimal delay time,

to relevant portions of documents. Anyone

could:have indexed, reviewed, and memorized

the contents of the massive amount of docu-

ments in the courtoom during the hearings,

but the Court is satisfied that the achieved

goal of eliciting so much testimony from

adverse witnesses could never have been

realized had plaintiff's attorney not taken

the time to decome so familiar with the

documents.

56a

Turning now from consideration of defend-

ants' arguments to the Court's own evaluation

of the time and labor factor, the Court finds

that the total amount of time for which com-

pensation is sought is in this case reasonable.

There are several considerations which deserve

mention in this regard.

First, the time spent by lead counsel is

without dispute less than his actual time,

both because of the non-recording of time less

than 15 minutes a day and because of the non-

recording of discussions and conferences with

Other attorneys in his firm.

Second, this was an unusual case, contain-

ing a multitude of complexities and novel

issues, which necessitated the preparation

of briefs on these issues. Without counting

the briefs filed by Ms. Falkowski, who was

also getting in licks in opposition to plain-

tiff's position, this Court received a total

of 13 briefs and memoranda from defendants

and 7 from plaintiff.

Third, there should be a Peter Principle

rule that the amount of work done by one

attorney increases in relation to the amount

of opposition emanating from the other side

of the case. In the present case, in ingen-

uity and energy of defendants' counsel

57a

asserted every conceivable procedur

Substantive argument which could have been

raised, and that in turn generated consid-

@rable work by plaintiff's e

mounting those ob

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