# Petition — Falkowski v. Perry > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1012%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 819 ## Text 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 V. 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 nt 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 Golub, 25 EPD 431,488 (1981)...la APPENDIX B District Court Opinion Falkowski v. (Lowell Perry, unpublished.82a APPENDIX C District Court Opinion Permitting Voluntary Dismissal, Perry Vv.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 t- 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: 3 "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 te 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)]. yy .+ nflict with prevailing sta- e, the Court P (D 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 4 — 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- 2 duct by Petitioner, including claim that Wnile confused and disassociated from re- was her gional Director, Robert J hr = ~ 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. 6 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 ES overnment to near ef 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 8 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. 9 In 1955, she received threats onh W e 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 pe — 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- — U i, 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- 12 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? i3 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 t 2 o 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). " a Be 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 eS 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]. 16 Petitioner was preoccupied with efforts to Stay her own transfer the same day in 1975, Perry won an injunction. To stop her trans- r 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, O r 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. ty 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- 17 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. 18 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 Ly 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. 20 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. ed EOC Petitions District Court Again: On November 7, 1977, EEOC filed petitions with the Court seeking to fire Bertram Perry Oo BJ 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- 22 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 e © ¢ O UY. ca) ra) yy 4 eg 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 ig 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 n 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: ml 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' S fee appeal, after naving opposed her petition S 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- S 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. I 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. 27 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." 25 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." 29 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. 30 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 $i elected not to do. Similarly, her conten- tion that "the charges against her were never substantiated" is Simply a repitition m 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 a 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. a 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. 34 (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- 35 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." 36 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- 38 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 39 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 40 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). 41 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 ry the record. EEOC lawyers and managers are 42 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. 43 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). 44 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 45 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 46 (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. 47 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: 48 "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, 49 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, 50 (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 51 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 52 “© ae + ee — —_ _— - i ‘ , P 2 “* : ¢ m= > * - 62 # os ot @uUY US. SAVINGS BONOS FEGULAALY ON THE PATSOLL. SAVINGS PLAN aa vo r. * 2 ° _ Sees | cme ee ee o . e tieS nave filed grievances with the union and more ‘than 150 days have elapsed since ory act had oc- 8 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 r 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. 55 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 ry O = n t ”™ O + 1 in the doorway, near Ms. Fal n” ny WY) t rv O = ” val be 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 hd case aS Ms. Falkowski directed. While was in the doorway talki 09 ct oO pie @ ry Me ~” ~y @m a 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=. Beas-ey, “=. Ber: ana ser + an Feszy chat sre administration. « Falkow2zt: : hate oe | 2 lel J eg a4 f oo at 63 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. e ae - oes eee: ‘ u } 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. ct k ams HY In sum, the Court finds th is the prevailing party and a © 5 o ~ © i 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 2 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- O os ct 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 c 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 Z 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 > J 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 ~ } ts 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 bs 5° the Court has meade no such fin fo 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 3 Bhd f 1 mn u aoe ken. The class= 39a a 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 OF pleainciz©® in i975. 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 tJ 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 7 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 CO 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 4a 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 © val od =) 09 ct =f wo determination, the following been considered: First, the Court is personally familiar 4th the customary fee rates charged Dy attorneys in civil rights cases in this 63a area during the period of time involved in the present case. The $75 rate requested by plaintiff's attorney is not only “eason- able but is conservative on the low side for a lawyer of national renown, which he is. This Court has in other civil rights cases been presented with evidence and arguments from attorneys of no greater skill and experi- ence than plaintirr's attorney in support of $100 hourly rates. Second, all the evidence before the Court in this fee petition proceeding substantiates the reasonableness of the $75 fee rate. Hon- orable Oscar W. Adams, Jr., formerly a lead- ing civil rights attorney in this City and now Justice of the State Supreme Court, stated in his affidavit (filed prior to his appoint- ment to the Supreme Court) that the requested hourly rates "are reasonable and are the cus- tomary rate for the representation of a plain- tiff---." R. Lawrence Ashe, Jr. of the Atlanta. bar states that the requested rates "are less than my firm charges clients in the Birmingham area for work done by comparably experienced attorneys" and points out that he received a fee award in 1977 based on an $80 rate in a case in the Northern District of Georgia in which he represented an EEOC employee in a Suit against the agency. "In no event --- snould warded a fee greater than he is bound to pay, if indeed the atto contracted as to amount" (488 F spot defendants argue that plaintiff attorney took this case on a pro bono basis and that the requested fee should accordingly be reduced. As has been true of so many of the argu- ments advanced by defendants during tne course of this litigation, the argument shows e ingenuity of defendants' counsel. Starting with the premise that an award should not exceed the amount contracted for, they reason that the sunt here contracted for was free pro bono legal services. Carried to its logical conclusion, the argument would mean that no fee at all should be awarded, but defendants do not take the argument to that conclusion and instead rely on this point for the argument that the requested fee should be reduced. The conclusive answer to the argument is that there was not an agreement bdetween plaintiff and his attorney that the repre- 65a Sentation would be pro bono in the sense of any understanding that counsel would receive no compensation through a fee award. It was pro bono only in the sense that counsel agreed he would represent plaintiff without charging plaintiff a fee and instead would Seek compensation through a fee award. Specifically, the circumstances were that plaintiff's attorney agreed to accept the representation without charging plaintiff a fee, the understanding having been that he instead would seek a fee award from defen- dants. That is the normal and customary contingent fee method of plaintiff repre= sentation in civil rights cases, and defen- dants' pro bono argument is accordingly inapplicable. (7) Time limitations imposed by the client or circumstances: The circumstances of this case imposed Significant time constraints on plaintiff's attorney in several respects, as illustrated by the preparation of the initial pleadings and discovery in the face of the deadline set for plaintiff's reassignment, the pre- paration of briefs in response to the num- erous positions taken by defendants, and responding to the numerous petitions and motions filed by defendants. 66a (8) Amount involved and result obtained: Defendants suggest that this is a rela- tively unimportant case, since it entailed no monetary recovery or class-wide relief, and that the amount of rhe requested award is disproportionate to the importance of the case. The Court thoroughly disagrees With defendants' view of the importance of the case. First, defendants' argument impresses the Court as implicitly conveying the message that this was nothing more than an internal employment dispute unworthy of a substantial fee award. The argument is in this respect a reappearance of the position, taken at the outset of the case, that the Courts have no right to "interfere" with the way a Govern- ment agency handles personnel actions with its employees. The fact that plaintiff was able to overcome that initial defense raised by defendants reflects, in the Court's opin- ion, one aspect of the importance of the case in contributing to the consideration, expressed by Judge Goldberg in Porter v. Califano, Supra, that "In recent years, Congress and the courts have come a long way in expanding and fortifying those Ceonstitutional and statutory] rights and 67a in conferring on public employees citizen- Ship of the first class." Second, the result acheived by this liti- gation saved the career of a senior civil Servant who had served the Government with distinction and high praise. This Saving of his career has an importance which far trans- cends the significance of the result to plain- tiff himself, because, by retaining the ser- vices of a dedicated and efficient EEOC mana- ger, it as well benefitted the citizens for whose protection Congress created the EEOC. Third, the Court is convinced that this litigation will produce the immeasurable benefit of protecting other Government em-: Ployees from the high-handed treatment | accorded this plaintiff. It is with con- Siderable reluctance that the Court comments on defendants' actions in this case, because the Court is all too well aware that the Court's 1975 decision had the effect, not of inducing defendants to reconsider their attitude toward plaintiff, 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 generata still another flare-up of defendants! attitude and therefore is con- 68a Strained to use mild terms in describing de- fendents' actions. Even characterized in mild terms, it must be said that this lawsuit has produced the significant benefit of re- vealing retaliatory and discriminatory treat- ment 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 civil rights and their Constitutional rights. (9) Experience, reputation, ability of the attorneys: No disagreement is expressed by defendants with regard to this factor. Plaintiff's lead counsel has been a member of the bar since 1959, specializing in labor law, is a member of EEO law committees, is the author of law review articles on Title VII law, and has been a speaker at numerous EEO seminars. He is nationally recognized as one of the best EFO, lawyers in the United States. (10)?! Undesirability of the case: This was not an attractive case for coun- sel to take. It has been undisputed from the outset that prominent civil rights plain- tiffs' attorneys could not take the case because of concern that to do so might jeo- pardize their relationship with EEOC. It 69a is further undisputed that an Atlanta manage- ment attorney turned down the case, in part Decause of the unattractive financial nature of the representation. (11) Nature and length of the professional relationship with the client: This case is the only occasion on which plaintiff's attorney has represented plain- art, | (12) Awared in similar cases: Defendants place considerable reliance on their citation of civil rights cases basing awards on rates from $30 to $50 and argue that "The hourly rate requested by plaintiff is excessive when compared to awards by district courts in this Circuit and, thus, Should be lowered." The Court does not believe there is any rule or prevailing opinion among the District Courts in the Fifth Circuit to the effect that awards should necessarily be based on a $30 to $50 rate range. It may be noted, for example, that defendants' citation of cases omitted Judge Moye's decision in the Northern District of Georgia rendering an award based on an $80 partner rate to an EEOC employee who had sued the agency for alleged employment discrimination.. See also Neely v. City of Grenada, 624 F.2d 547 70a (5th Cir. 1980) ("we hold that a fee based on $100 per hour is reasonable."). Similarly, by having considered fee peti- tions in other cases, the Court is aware that decisions awarding fees on the basis of rates above the $30-50 range are equally available for citation No useful .vrpose would be served by ex- tended consideration of the subject. Suffice it to say that the Court considers the re- quested fee to be well in line with awards in civil rights cases and an entirely reasonable fee for the services performed in this parti- cular and unique case. B. REASONS FOR THE COURT'S DECISION AS TO FEE AMOUNT: Having analyzed the case in light of the Johnson factors, it is now incumbent on the Court to articulate the reasons for its deci- sion as to the amount of a fair and reason- able fee award. Coover Liquor, Inc. Vv. Adolph Coors Co., 624 F.2d (Fifth Cir. 1980). In conformity with the views there expressed by the Court of Appeals, the Court pays special attention to factors, 1 (time and labor required), 5 (customary fee), 8 (amount involved and result obtained, and 9 (experi- ence, reputation, and ability of the attor- 7la neys). The Court starts with the lodestar method, consisting of an objective measurement based On the number of reasonably-incurred hours (factor 1) multiplied by a reasonable and Customary hourly rate (factor 5). The Courts finds that the amount of time incurred by Dlaintiffs' attorneys was reasonable and nec= essarily incurred for the representation of Plaintiff in the significant and demanding circumstances of this case. The Court simi- larly finds that the amount of the hourly pate requested is customary and, with respect to plaintiff's counsel, on the conservative Side. It is therefore decided that the lod- estar method restuls in a reasonable fee in the amount sought by plaintiff. The lodestar fee is then to be adiusted upward or downward in accordance with the Other factors in the Johnson compilation, with particular emphasis on factors 8 and 9. Cooper Liquor, Inc. v. Adlph Coors CO. , Supra. In this case, the Court finds that on the one hand, none of the other factors would call for a downward adjustment of the lode- Star fee. With particular reference to fac- tor 8 (amount payed and result obtained), this lawsuit not only saved plaintiff's 72a distinguished career but as well achieved the significant result of preventing defen- dants from mistreating a public servant who had the courage of his convictions to act on the belief that a black citizen can cri- ticize a Government agency ar shite offi- ,»clals. With particular refer.:e to factor 9 (experience, reputatior., ability of the attorneys), the Court finds that for a com- parably skilled handling of a case for a paying client, plaintiff's attorney could have commanded an equal or even higher fee than here requested. However, since plaintiff has not requested any amount in excess of the lodestar fee, 0 tne Court will not make any upward adjust- ment. The fact that the fee requested is less than it justifiably could be by upward adjustment provides additional support for the Court's conclusion that the amount of the requested fee is entirely reasonable. CONCLUSION On the basis of the facts and authorities which have been set forth in this Opinion, the Court concludes as follows: 1. Plaintiff is entitled to an award of costs, including attorneys' fees, under Sec- tion 706(k) of Title VII of the Civil Rights Act of 1964, as amended [42 U.S.C. §$20C0e- yh yp ~w@ wl ne aino t ” . a ber 24, ees rs Vem a ae - ie Cs Q S s sv Dp V ,e ’ nrougn “on es 4ee4n Vila ~- Ua f 5 v O af 3 { 1 > OL reasonable. mount Y a a re) will be en 4 +9» case * — Stead ‘alKOowsk th - 4 ~- + } Nn *- . ~ 5 OY nvelyn costs _ one * 4n@ Court @ ie « who was ") oe wt Nd bo ded oe ~ lo + 74a (before 1970) in this case and as plaintiff in a lawsuit she filed against the EEOC. Her petition is appropriately to be resolved separately and in the context of her lawsuit rather than in this case to which she has not been a party since 1976. 2. It should be noted that the Court's 1975 Opinion in no way found any improper conduct on her part. The references in the Opinion to which she objected were simply based on the undisputed testimony of her then agency Superior as to what he had concluded. More- over, the Court was careful to point out that: "It snould be noted that the Court is not passing on the propriety or impropriety of the District Director's actions.--- Nothing said in this case should preclude the District Director from contending or attempting to show that the Regional Dir- ector's findings were in error." (400 F. Supp. at S11). 3. Her notice of appeal, filed on Feb- ruary 14, 1977, stated in full text as rollows: "Notice is hereby given that the Defen- dant Evelyn Falkowski hereby appeais to the United States Court of Appeals for the Fifth mArHAA — ~ANR +, ~~ am a 7 n 7s Ke \a OUvLON uO rec nisi ger ws oy wh che tat Sik he Sali 41QV was } “ = TAY 4G * “F ” nr Yur wm) | la an n been overruled on 14 January 1977). ' ~ ~ T oF i \ : i | ~ 7 | / y ~ 4. LE VOU fF VPLNloO se in 1976 and that the from the November 23, 1y her as a defendant. 5. Will be certain cont logicaliy to be considered with analysis of the 12 factors set f ¢ -« or Johnson v. Georgia Hizhway Express, 488 F.2d 714 (5th Cir. 1974) for evaluation of the amount of free awards. Oo. It is undisputed that tne appeal from the Order dropping Ms. Falkowski as a defen- dant did Ger of November dq O not bring before the Court of Appea nt unappealed Or y e 76. Ease... 26 U.S.C. » Suttle’, 540 F.2d 206 (Sth Cir. 1976 3 man Motors v. Chrysler Corp., 567 F. 2d e (3rd Cir. 1977); Symons v. Mueller Co. ft 2 7 } a es . 4% Should be r e of clarity that in fact the dismissal was in is iterated in the interest 76a her case, not in this case. 8. Section 706(k), 42 U.S.C. §$2000e-5(k), provides that: "In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be li- able for costs the same as a private person." 9. The 1976 statute provides as follows: "In any action or proceeding to enforce a provision of sections i961, 1982, 1983, 1985, and 1966 of this titie, titie ix ef Pubiic Law 92-318, or in any civil action or pro- ceeding, by or on behalf of the United States of America, to enforce, or charging a viola- tion of, a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." Since this case filed in 1975 was pending when the Civil Rights Attorneys Fees Awards Act was enacted in 1976, the Act applies re- troactively to the inception of the case. Miser We Carson, 363 F.24 741 (Sth Cire 77a 1977): Gore ve Turner, 563 F.24 159 (5th Cir. 1977); Rainey v. Jackson State College, aos Pe 2a G72 (Sth Cis. 1977). 10. A footnote in defendants' original Opposition to the fee petition suggested that an award under the 1976 Act: (but not under Title VII) would be barred. by the sgov- ereign immunity of the Federal Government. The suggestion was evidently dropped, as it went unmentioned in all succeeding phases of the proceeding. In any event, the point is | not of material significance in this case, because the only defendant here which could claim the protection of sovereign immunity would be the EEOC, The other defendants, sued in their individual capacities, could not do so. ll. 42 UeS.Ce $2000e-5(k) and 42 U.S.C. §198e. bas Thess hours were through November 24, 1980. EFlaintiff's attorney stated at the hearing that he was not asking for any fee for the day of the hearing on Nov- ember 26, 1980. a Expenses in the amount of $2,681.90 are also sought. There is no dispute with any of the expense items requested. The total amount sought is computed as follows: 78a 1094 partner hours x S75 = $82,050 276 associate hours x $40 = 11,040 178 law student hours x$20 = 3,560 Total fee requested 96,650 Expenses 2,681.90 Total $99,331.90 14. For example, the Senate Report on the Civil Rights Attorneys Fees Awards Act re- ferred to in the Fifth Circuit's decision in Johnson as setting forth the appropriate standards to be applied in the evaluation of fee requests. Senate Report No. 94-1011, 5 U.e.S.~-Code Cong. and Adm. News, 94th Cong., 2d Sess. (1976), page 5913. See also Hameed v. International Association of Bridge, Struc- tural & Ornamental Iron Workers, 24 FEP 352 (6th Cire i88@) (*fhis Court remande this case to the district court so that attorney's fees may be determined in accordance with the guidelines set forth by the Fifth Circuit in Johnson ve Georgia Highway Express, Ince, 466 7, 24 7id, Titeid (Sth Cis 1974) 6” Loe A breakdown of services by subject matter, prepared by plaintiff and introduced at the hearing, shows that the work relating to Ms. Falkowski is as follows: Depositions - 31 partner hours and 10-1/2 associate hours. 79a Discusssions with her attorney - 2-1/4 partner hours. Brief and oral argument in the Fifth Circuit - 126 partner hours. This resuits in a total of 159-1/4 partner hours and 10-1/2 associate hours. Defendants: also contend that 15 hours in reviewing affi- davits and documents in August and September : 1975 "generally dealt with matters raised by defendant Falkowski" but there is no evidence before the Court to that effect. 16. Plaintiff's exhibit breaking down the hours by subject ma [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1012%3A1. Public record. Not legal advice.