Petitioners Reply Brief — Falkowski v. Perry

IN THE

SUPREME COURT OF THE UNITED STATES

October, 1982

82-1914

No.

EVELYN FALKOWSKI,

Petitioner

Vv.

BERTRAM N. PERRY,

Respondent

and

LOWELL W. PERRY, etc. ef al.,

(Equal Employment Opportunity Commission),

Respondent

REPLY TO OPPOSITION OR WAIVER

OF OPPOSITION FROM COUNSEL FOR

BERTRAM PERRY IN PERRY V. GOLUB

Evelyn Falkowski. Pro se

2501 N. Kenilworth St.

Arlington, Virginia 22207

Of Counsel: (703) 534-4270

Owen Perry. Esq.

3000 Town Center

Suite 2121

Southfield, Mich. 48075

Edward Owen Falkowski, Esq.

P.O. Box 18

Fayetteville, Tenn. 37334

i

QUESTIONS PRESENTED FOR REVIEW

1. Where failure of government 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 merits of untried cases, and

record shows bias, should this Court vacate

affirmance and order remand for decisions

by an impartial tribmal?

a

(i)

TABLE OF CONTENTS

Table of Authorieies

Questions Presented for Review

Opposition or Waiver of Opposition

to Petition

Reply

ii

(13)

TABLE OF AUTHORITIES

BUSH V. LUCAS, No. 81-469 SPOR) keccc cu.

HAZEL-ATLAS GLASS co. V. HARTFORD-

EMPIRE CO., 322 U.S. 238 (1944)

KLAPROTT V. UNITED STATES,

335 U. S. 601 eo ee oe Sa

PICKERING V. BOARD OF EDUCATION,

391 U. S. 563 (1968)

RODGERS V.- UNITED STATES STEEL

CORP., 508 F. 2q i52, Cert.

Denied, 423 U.S. 832 (1975)

etd tee we ence al

WOOD V. GEORGIA, 370 U. Ss. ore (1961)......6

MOORE'S FEDERAL PRACTICE 7, 507-513

(neodseeel

5

REPLY

Statement that there is "nothing in the

petition for certiorari or Supporting brief

addressing our entitlement to attorneys' fees

in such case" (Case No. 81-7278, Bertram

Perry v. Alvin Golub, et al.) is refuted by

the petition itself as follows:

REFUTATION IN PETITION

The Petition asserts:

(1) that the District Court departed from

the law of the case in a published decision

by assessing fees against EEOC to Bertram

Perry as a whistle blower against his super-

Visor, Petitioner Falkowski. That the

Eleventh Circuit published only "affirmed in

Part," without clarifying that the District

Court lacked record, trial on the merits, or

Jurisdiction on which to base such findings

and fees (pp. 2, 3).

(2) The petition, p. 4, points out that

Bertram Perry received free legal defense

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

6

known as a critic of EEOC "fishing expe-

ditions" who defends employers charged

before the .0ffice where Perry works.

(3) The petition, pp. 6,7 urges that the

fee opinions violate due process and law

pertaining to moot cases.

(4) At p. 15 the petition cites fee Opinion

(25 EPD 731,488) as "here appealed"

(5) At p. 24 it points out the impact of

vacated decisions. Heading 10 on that page

is “Appeal of Fee Opinions:" P. 26 points

out that the published decisions find on the

merits of untried issues.

(6) The petition at p. 29 points out that

"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, pp 30,

31 of the Petition cite Wood v. Georgia,

370 U.S. 375 (1981) as support for vacating

7

the Opinions because of conflicts of interest

of Counsel which should have been appropriate-

iy addressed by the District Court.

(8) P.32 mentions existence of evidence

that screams against the findings in the fee

awards. On that page is raised questions of

Fraud upon the Courts which pertain to the

fee award to Mr. Gardner; Moore's Federal

Practice 7, pps. 507-513 is cited.

(9) P.39 urges lack of basis for the sub-

Stantial award by the District Court to

Bertram Perry's attorney, and contrasts this

With lack of credible support for the Court's

reiterating, after mootness decisions his 1975

finding "there was a suggestion that Petitio-

ner might be slanting cases for the benefit

of certain private attorneys who were her

personal friends."

(10) P. 40 relates that the transcript of

hearing on fees shows the Court asked Perry's

lawyer to prepare a decision but that request

to this lawyer on Petitioner's behalf for

8

any proposed decision was not answered. Page

41 relates to the foregoing, in discussion

of Fraud Upon the Court.

(11) P. 47 asks that affirmance be vacated

and fee decisions be remanded for decisions

by an impartial tribunal.

(12) P. 51 asks this Court, pursuant to

Rule 17 (a) to exercise its power of supervi-

sion because of departures from the accepted

and usual course of judicial proceedings,

and concludes:

"At a minimum, she asks this Court to

vacate and:

(1) remand for fee Opinions by an im-

partial tribunal, and

(2) cause published clarification that

these cases were administratively resolved,

and that all questions concerning Petitio-

ner's character and competence referred to

by the Perry v. Golub Court have been with-

drawn by EEOC, and that Bertram Perry

voluntarily withdrew two lawsuits against

Petitioner."

SUPPLEMENT TO PETITION

Petitioner asked for the foregoing as a

Minimum. Reversal and remand for trial is

Justified under Klaprott v. United States,

335 U. S. 601 (1949), Hazel-Atlas Glass Co.

Vv. Hartford-Empire Co., 322 U.S. 238 (1944),

and Rodgers v. United States Steel Corp.,

508 F. 2d 152, 163, cert. denied, 423 U.S.

832 (1975) which holds that Courts are not

exempt from Constitutional strictures.

Bertram Perry sought out a powerful law

firm and a Title VII defendant lawyer known

as a critic of EEOC. He presented a fraudu-

lent case, the possibility of which actually

became manifest quickly. But "mootness"

decisions blocked Falkowski's proof. Praise

to Perry as a black man, in the face of grave

questions, was sheep's clothing, and also

reinforced his improper behavior.

10

Under the standards of Pickering v. Board

of Education, 391 U. S. 563 (1968) Bertram

Perry could not have prevailed against EEOC.

The record shows malicious, false, and ob-

Scene remarks by him to and about his super-

visor, and not violation of his rights.

Further, this Court's decision in Bush v.

Lucas, No. 81-469 (June 13, 1983), is reason

for reversal of the judgment below. Perry's

award for fees through May 3, 1976 was for

claims this Court decided should be resolved

by the Civil Service Commission.

Respectrully submitted,

’

L

E cae. wSki, Esq. Pro Se

2501 N. Kenilworth St.

Arlington, Virginia 22207

OF COUNSEL:

Owen Perry, Esq.

3000 Town Center Edward Owen Falkowski, Esq.

Suite 2121 FP. O. Box 18

Southfield, Mich. Fayetteville, Tenn. 37334