Petition for Writ of Certiorari — Jerry v. UAW, Local 735

336 ;

sole

JOSE

SUPREME COURT OF THE UNITED "SPe#5s5——--_

Fee seals

October Term, 1987

FREDERICK L. JERRY,

Petitioner,

-VSe=

UAW, LOCAL 735 and

GMC, HYDRA=MATIC DIVISION,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

FREDERICK L. JERRY

Petitioner pro se

21331 Kipling Street

Oak Park, Mich 48237

Phone (313 544773

~~

1. Whether the District Court and the

Court of Appeals can deny and prohibit

plaintiff from establishing charges of

fraud, discrimination, and an existing

conspiracy, under 28 U.S.C. Section 1655

and 2870 and Rule 60(b), contrary to the

Supreme Court establish precedents, and

the privileges granted in the United

States Constitution, lst Amendment?

2. Whether the Appeals Court acted pro-

perly in denying Plaintiff-Appellant's

Motion To Set Aside Judgment Obtained by

rraudOn The Court,and Motion For Consid-

eration And ModificationOf Appeals Court's

Order May 20, 1987 pursuant to Federal

Rules of Civil Procedure Rules 6b) (3)(2)

and 56(c), up-holding the opinion fraud

and charges of an existing conspiracy are

insufficient grounds for cause of action,

in excercise of its sound discretion, con-

trary to Supreme Court's precedents?

pe

-3. Whether the APpeals Court andthe Trial

Court properly denied Plaintiff-Appellant's

Motion To S€t Aside Judgment Obtained By

Fraud On The Court, pursuant to Federal

Rules of Civil Procedure Rule 60(b)(3)(2)

under Title 28 U.S.C. Section 1655 and

Section 2870, uov-holding the opinion

fraud and charges of an existing conspir-

acy are insufficient grounds for cause to

antine. in exercise of their sound dis-

cretion, contrary to the establish pre-

cedents by the Supreme Court?

iii

TABLE OF CONTENTS

Page

Questions Presented weccecccsessvees i

Parties to the Proceeding in the

Court Of AppealS ceescvecsvssesecees i

Opinions and Order Below eeeceseves

nm NW

JULISAICTLON cocvecsecesveccsvcveee

Statutes Involved ceccccccccccccess 2

Statement of the CaSe€ ceccssesevecs 5

Reasons for Granting the Writ .. 14,16

I

The Court of Appeals Should Be Sum-

marily Reversed for Holding That

Fraud and an Conspiracy are insuf-=

ficient Grounds to Establish Cause

TOP ACTION cecvccvccsecsccesesecese Lt

II

The Supreme Court has Previously

Granted Certiorari on the Issue of

Lower Courts Decisions Contrary to

‘iv

Page

its Controlling Decision; the same

Reasons Compel Review in the Instant

CASO 2c bene ene so 06h d 06506009046 0068 5

COMCLUSION esccnvesvesevdnsevseere 18

APP=NDIX B Order denying Motion For

Reconsideration, July 6, 1987 .... 24

APPENDIX A-1, A-2, A-3 and A-4 Or-

der denying Motion To Set Aside

Judgment Obtained By Fraud On The

COUPES 664 sec eeenteseutsssaaen 20,214 ,22,23°

APPENDIX D-l; andD-3 (of the memo-

randun)Motion For Consideration And

Modidication Of Appeals Court's Or-

der May 20, 1987 ccccoce 28,29,30,31

\

‘

APPENDIX E-1, E=-2 page lof the memoran-

dum of “Brief In Opposition To Mo-

tionTo Set Aside Judgment .... be

Page

APPENDIX F-1, F-2, F-3, F-4, F=5

F-6, F-7 pages of the Motion To

Set Aside Judgment Obtained By

Fraud On Phe Court oosoecsuedss secs 295

APPENDIX G-1l Communication from

the Court of AppealS ceccccevcccccs #1

APPENDIX H-l, H-2 pages from Plain-

tiff's Suit For Recission And Dam-

GRO ancien aesbbsnnenbincheneene eek OR

APPENDIX I-1, I-2 page 1976 GM-UAW

Contract Settlement Agreement .....44,45

APPENDIX J-1, J-2 page from Plain-

tiff's Motion For Dismissal Of De-

fendants International Union, UAW'S

Opposition To Motion To Set Aside

46,47

Judgment eeeseeoeeveeeeereenrteesvsereeeeeeeeeee

vi

Page

Andy McBeath -vs- Inter-American

Citizens For Decency Committee, C.A.

5th, 1967, 37% Pi2Q 359 sesecevsces 8

Bankers Mortgage Company -v=- U-

nited States of Americs, 423 F.2d

7) coseescorsecsocsoussereucsaseiaee TERS

Cavalliotis -vs- Salomon., (1966)

2 Cite, 357 Fe2d 157 casessaseseven 25

Hadden -vs=- Ramsey Products, 196 F.

ZA OZ scccccsenscenessaseseeressees 7

Hazel-Atlas Co., -vs=- Hartford-Em-

pire Go., (1996) 322 U.S: 2 s<ks 17

Kenner -vs- Commissioner of Inter-

nal Revenue, C.A. 7th (1968) 387

P2208 669 sccvscccessacedevsvsseees Ot

Klapprott -vs- United States., (

1949) 335 U.S. G01 sevsccusecenncee “ERS

Marshall -vs- United States,(1959)

960 GS. FO cevivcdevsnondasseves 13

vii

Page

Marbury v. Madison, 1 Cranch 137,

21. BA. GOCLEGI) sccscdcvvcssseces 12

Richard Dale Martin -vs- United

States, (1968) 404 F.2d 640 .. 14,15,18

Radiant Burners Inc.,-vs— Peoples

Gas Light & Coke Inc., (1961) 364

U.S. 656 soscosessdvsessesssecese 18

Statutes

United States Code, Title 28 Sec.

L254(1) aovovecssusesesesaeeeeers 2a3

Un ted States Code, Title 28 Sec.

1655 cicevectdevecssdeereesenrenn 2,4

United States Code, Title 28 Sec.

ZBETO ciccdeceseessececeveevecesnes 3

United States Code, Title 29 Sec.

185 Labor= Management Act .eeeoee 5

Constitution Provision

United States Constitution, Amend-

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SUPR COURT ¢ THE UNIT STATES

FREDERICK L. JERRY,

UAW, LOCAL 735 and

GMC, HYDRA=MATIC DIVISION,

Respondents

UNITED STATES COURT OF APPISALS FOR

SIXTH CIRCUIT

The petitioner respectfully prays that

a writ of certiorari issue to review the

decision and opinion of the United States

}

Court of Avpeals for the Sixth Circuit en-

tered in this proceeding.

<2-

Opinions and Order Below.

The order of the Sixth Circuit Court

of Appeals denying the motion for recon-

Sideration, is annexed hereto as Appen-

dix B.

The decision and opinion of the Sixth

Circuit Court of Appeals is annexed here

to as Appendix A-1, A-2, A-3 and A-4.

Jurisdiction

The decision and opinion of the Sixth

Circuit Court of Appeals was entered on

July 14, 1987

The order denying the motion for recon-

Sideration was filed July 6, 1987.

Jurisdiction in this Court is invoked

pursuant to Title 28 U.S.C. Sec. 1254(1)

end to Rule 17.1.

Statutes Involved

1. Title 28 U.S.C. Sec 1655 provides:

Relief from judgment or order, USCS

sini

Rules of Civil Procedure, Rule 60. Judg-

ment for specific acts; USCS Rules Proced-~

ure, Rule 70.

United States Code, Title 28, Section

2870 Provides:

The power to vacate a judgment that

has been obtained by fraud upon the

court is inherent in courts. Indeed

even the strong statutory policy of

finality of judgments of the Tax

Court yields to this inherent power,

on the theory that "a decision pro-

duced by fraud on the court is not

in essence a decision at all, and

never become final."

Constitutional Provision Involved

United States Constitution Amendment I:

; or the rights of the people peaceably

to assemble, and petition the Govern-

ment for redress of grievances. (Unquotd

United States Constitution Amendment 14th

snor shall any State deprive any person

of life, liberty, or property, without

due process of law; nor deny to any per

son within its jurisdiction the equal

protection of the laws. (Unquote)

Rules Involved

Rules of the United States Supreme Court

Whe

Rule 17 2. (a) Provides:

(a) When a federal court of appeals

has rendered a decision in conflict

with the decision of another federal

court of appeals on the same matter;

or has decided a federal auestion in

a way in conflict with a state court

of last resort; or has so far depart

ed from the accepted and usual course

of judicial proceedings, or so far

Sanctioned such a departure bya low-

er court, as to call for an exercise

or this court's power of supervision.

Rules of the United States Suvreme Court,

Rule 17.1. (c) Provides:

(c) When a state court or a federal

court of appeals has decided an inm-

portant question of federal law which

has not been, but should be, settle

by this Court, or has decided a fed-

eral question in a way in conflict

with applicable decision of this Court.

Federal Rules of Civil Procedure Rule

60(b) that provides:

(b) This rule does not limit the pow-

er of a court to entertain an imo@en-

dent action to relieve a party from a

judgment, order, or proceedure or to

grant relief to a defendant not act-

ually personally notified as provided

in Pitle 28, U.S.C., Section 1655, or

to set aside a judgment for fraud upon

the court.

oo Sen

Statement of the Case

The original complaint was filed June

1980 and charged the UAW, Local 735 and

GMC, Hydra-Matic Division with fraud, dis-

crimination and violation of contractual

agreement under Labor-Management Act 301

Title 29 U.S.C. Section 185.

On January 5, 1981 attorney for UAW Lo-

cal 735, filed a motion for summary Judg-

ment, excluding UAW and the International

Union collectively; and obtained a Sum-

mary judgment, January 8, 1981, case No.

80-72246. That exclusion of UAW and the

International Union from charges as filed

meant the full cause was not before the

Court.

Plaintiff in pro se with the intent to

reopen case No. 80-72246 and establish

charges of an existing conspiracy, fraud

and to have the UAW and the Internation-

a

al Union heretofore excluded, establish

therein as charged. To accomplish those

Objectives, plantiff filed Motion To Set

Aside Judgment Obtained By Fraud On The

Court, filed August 4, 1985.

On August16, 1985, Defendants Interna-

tional Union, UA filed Entry Of Special

Appearance And Opposition To Motion To Set

Aside Judgment. Thereinthat motion, page

lof the Brief, Defendants stated “For the

purpose of this brief,the allegations set

forth in the plaintiff's motion will be

takenas true. (see Appendix E-1 lines 12

to 14).

Plaintiff filed Motion For Dismissal of

Defendant's opposition motion, on August

Throughout this petition Motion To Set

Aside Judgment Obtained By Fraud On The

Court, will be refered to as "Filed Mo-

tion of August 4, 1985."

i

30, 1985, addressed to the discretion of

the Court, and requested that MOtion To

Set Aside Judgment,be treatedas “the in-

stitution of an independent action" (see

Appendix J-1). Plaintiff used the case of

Bankers Mortgage Co. as relevant author-

ity. Inthat csse Plaintiff sought to have

review of his actionfrom adverse decision

of Federal Tax Court ina Federal District

Court under Federal Rules Of Civil Pro-

ure Rule 60(b)(1)(2)(3)s3 Suchrules to be

effective, motion must be made within the

one year limit. Nevertheless the Court in

its discretion, instituted Plaintiff's

cause under the saving: clause of Rule 60

(b) that provides that 60(b) does not limit

the power of the court to entertain such

an action, as an independent action. See

Bankers Mortgage Company -v=- United States

of America, 423 F.2d 73; also see Hadden

-vs- Ramsey Products, 196 F.2d 92.

wife

Plaintiff says in-his opinion

as a layman: The District Court and the

Court of Appeals should have applied the

Same principleof "Assumption of Innocent,"

the same as the Defendants. Granting plain-

tiff the privilege of an hearing, and op-

portunity to prove and devélop those charges

» because of their importance to the pub-

lic; by reason of the seriousness of any

threat to the functioning and integrity

of the very institution set-up as safe-

guard against such charges of fraud.

In a Similar situation, the Court in

its opinion stated;

“McBeath should have been allowed

to develop his evidence in a full

hearing on the merits where the is-

Sue of jurisdiction and the merits

are so closely tied together and in-

Separable. It was an error for the

court summarily to preclude him from

so doing.: See Andy McBeath -vs-

Inter-American Citizens For Decency

Committee f.A. 5th, 1967, 374 F.2d

359.

Also see Standard Oil Co. of New

mo

Jersey v. United States 221 U.S. 1. 31S

Ct. 502.

On August 25, 1986 the Distric* Court

denied Motion filed August 4, 1985, in

court order. Plaintiff filed Appeal Notice

September 22, 1986, that was given docket

No. 86-1873. Plaintiff filed Brief March

16, 1987. TheCourt entered its order May

20,1987 denying filed Motion of August 4,

1985, and Appeal No. 86-1873. Therein the

Court's opinionit stated Plaintiff's said

filed Motion August 4, 1985, TO Set Aside

Judgment, was filed to vacate Defendants

Judgments. Plaintiff object to that state-

ment by reason said filed motion was only

against UAW Local 735's judgnent (see cap=

tion Appendix F-1), and requested that it

be set aside (see Appendix F-6 lines 17

thru 18). Also see Appendix G-1 that was

filed in the Appeal Court, that factually

showedthe relating judgment case of General

-Ai0-

Motors Corporation No. 82-70212 was on ap-

peal September 24,1985, when motion again-

st UAW Local 735's judgment was filed

August 4, 1985.

Plaintiff-Appellant further object to

the mmtioning of UAW Local 735's judgment

and relating caseof General Motors Corp-

Oration No. 82-70212 (see Appendix A-l

lines 15 and16) inan suggestive and sanc-

tioning manner, not before the court in

its court erderof May 20, 1987. In Plain-

tiff's opinion: That action denying his mo-

tions as lacking substance for a cause of

action,merely restating matters previously

before the court (see Appendix A-4 lines

6,7,8and 16 and 17), without due consid-

eration of charges of fraud and an exist-

ing conspiracy that included both hereto-

fore not charged International Union and

the UAW cdllectively (see AppendixD=-3 lines

=;

9 thrul3);besides error in discretion,pre-

judiciali.y denying and prohibit future mtion

by plainviff to have grievances in those

judgements: addressed without preconceived

adverse cainion on establishcharges there-

in, withottre new evidence amd charges in

said motion filed August4, 1985, and mo-

tion for reconsideration, because of the

Appeals Ccurt's sanctioning the granting of

those judsments in its order of May 20,

1987 That action also deny plaintiff's

his constitutional privilegs granted by

the United States Constitution,lst Amend-

ment, that afford him tne right to bring

his grievances for redress t any Federal

Court, in accordwithnsaid Amendment, that

read in part;

sor the risnts of the people

peaceably to assemble, and Dét=

ition the Government for redress

of grievances. (Unquote)

Further Plaintiff being so privilege

ah tu

has the right to the protection of his

grievances under the law, enforced ac-

cording to the 14th Amendment, that read

in part;

;nor shall any state deprive

any person of life, liberty, or

property, without due processof

law;nor deny to any person with-

in its jurisdiction the equal

protection of the laws. (Unquote)

In further comment upon the wording

in the lst Amendment, where it read " and

petition tne Government for redress of

grievances;" Plaintiff exvressed his ob-

jections tothe fact UAW Local 735'sJuds-

ment was obtained without the UAW he in

the original complaint charged with fraud,

or the International Union, whom the com-

pany recognized as revresented collectively

in the persons of UAW- Local 735 (see Appen-

dix I-l lines 11 thru 15). Charges filed

in the original complaint, that in accord

with the lst Amendment cf the United States's

At

Constitution, must be heard, as a right

granted; with full protection of the law,

as establish by the United States Supreme

Court in acase wherein the Honorable Chief

Justice Marshall stated in the Court's

opinion:

"If, then, the courts are to

regard the constitution, and the

constitution is superior to any

ordinary act of the legislature,

the constitution,and not such or-

dinary act, must govern the case

to whichthey both apply. See Mar-

bury v. Madison,1l Cranchl37, 2L.

Ed. 60 (1803)

Plaintiff also pointed

out in said filed Motion of August 4, 1985

» ToSet Aside Judgment, contained provis-

jons charging the International Union with

fraud, and in an conspiracy, that hereto-

fore was uncharged (see Appendix D-3 lines

10 thru 14). Charges the Trial Court dis-

missed as restated charges without merits

for a cause of action, in denying Plain-

=

tiff's filed Motion of August 4, 1985.

Plaintiffalso findhis present situation

not unlike the case of a plaintiff in cer-

tiorari that felt his cause had been pre-

judice by outside influence, wherein the

U.S. Supreme Court stated in its opinion:

"The case is here on petition for

certiorari, * * * which we granted

because of doubts whether exvosure

of some of the jurors to the new-

paper article about the petitioner

was so prejudicial in the setting of

the case as to warrant the exercise

of our supervisory power to order a

new trial." See Marshall V. U.S, 366

U.S. 316.

Also see Montana «v= Kennedy,

1961 366 U.S. 308.

REASONS FOR GRANTING THE WRIT

I

The Court of Avpeals and the District

‘Court Should Be Summarily Reversed

for Holding That Fraud and an Con-

Spiracy are Insufficient Grounds to

Establish cause for Action

Supreme Court's Rule .1.(c) provides

=] 5~

that one reason a writ of certiorari may

pe srantedis thatacourt of appeals “has

decideda federal questionin a wayin cone

flict with applicable decisions of the Su-

preme Court, The first question present-

ed for reviewon the instant petition in-

volves avery opposing departure from Su-

preme Court vrecedent established in Richard

Dale Martin V. United States, C.A. 10th

(1968) 404 F.2d 640. Therein that case,

the same as the instant case, Rule 17 .1.

(a) and (c) is applicable because of the

oposing difference in the decision of the

Appeal Court and District Court holding

charges of fraud is insufficient ground

to cause for action; compared to the decis=

ion of the Court of Appeals for the 10th

circuit, in its opinion stated:

In the trial court defendants

a fa|

he |

upon the one vear period

c

Fo

applicable to grounds (3). Evi-

dently,the trial court did also

This, we hold, was error.

Also see Bankers Mortgage Company -vs-

United States of America, 423 F. 2d 73

Fraud is a very serious charse, that war-

rant full supvort of the Court. A fact

further reiteratedin Supreme Court decis-

ionin Klapprott V. United States 366 U.S.

942; also see Cavalliotis -vs- Salomon.,

(1966) 2 cir. 357 F.2d 157.

Tne Suoreme Court has Previously Granted

Certiorari on the Issue of Lower Court

Decisions Contrary to its Controlling

Decisions; the same Reason Compel Re-

view in the Instance Case

The precedents establish by the United

States Supreme Court that fraudor an con-

sDiracy to subvert the administration of

Justice, is an attack upon the whole ju-

Gicial system; and must be sought out at

all expense, until ail such threats have

peen removed and the records have been

oo] Fa

cleared of all such allegations of fraud.

Such precedents being so established by

the Supreme Court, has controlling influ-

ence an the discretion af the lower courts.

By reasons the Court of Appeals and the

District Court have failed t recognize in

the original complaint UAW and Local 735

was charged with fraud (see Appendix H-1

lines 8, 9, and 10); and too, said filed

Motionof August4, 1985,To Set Aside Judg-

ment, charged International Union and UAW

with fraud (see Appendix F=-3 lines17 thru

19). The filed Brief and Motion for con-

sideration, in the Appeals Court, all three

motions contained charges of fraud and ad-

dressed to the discretion of the Court;

both Courts in error of discretion, issued

orders denying full disclosure of all fraud

charges, contrary to Supreme Court's est-

ablish precedents. Such action bring into

~] Ba

action the Supreme Court's Rule 17 .1.(c),

by reason those orders are in opposition

to the controlling decisions of the Supreme

Court concerning charges of fraud. That in

such a case, stated in its opinion:

The Court said at 523, con-

cerning the facts that had come

to its attention "Not only jus-

tify the inquiry but impose uwodon

us the duty to make it, even if

no party to the original cause

Should be willing to cooperate,

to the end that the records of

the court might be vurged of frawd

if any should be found to exist.

Hazel-Atlas Co. -vs=- Hartford-

Papire Co., 322 U.S. 238.

Also see Ken-=

ner -vs=- Commissioner of Internal Reve-

nue, C.A. 7th, (1968), 387 F . 2d 689,

wherein the court's opinion it was stated

"Fraud upon the court is never closed un-

til all such charges of fraud, has been

laid to rest. Those decisions by the Su-

preme Court has already establishthe cri-

~19—

teria for prohibition, the lower courts

may not expand them. That fact was never

more explicitly noted than in Richard

Dale Martin 'vs- United States, C.A. 10th

(1968) 404 F. 2d 640., and reiterated in

a case wherein the Supreme Court granted

certiorari because its decision had been

invalidated by a lower court summarily.

The Court stated in its opinion:

"Because of petitioner's claim

that this holding is contrary to

controlling decisions of this

Court, we granted certiorari."

Radiant Burn rs Inc. V. Peoples

Gas Light & Coke Inc, 1961, 36/4

U.S. 656.

CONCLUSION

Frederick L. Jerry, Plaintiff do most

respectfully submit: The actions of the

United States Court of Appeals for the

Sixth Circuit,and the United States Dis-

trict Court for the Eastern District to

the attention of this most Honorable Court

-20-

in this petition, being such an opposing

departure from the established precedents

of this Court. For the foregoing reasons

a writ of certiorari should be granted,

and the granting of the first question

raised in this vetition.

Oak Park, Michigan 48237

Telephone: (313) 5447736

Date 9-8-87

Subscribed and sworn to

before me this 9th day of

vO. 1987 ,

f é

ee ee sere es

Notary public

My Commission Expires:

ARLENE S. FIRSHT

Notary Puptic. Qaldand County. Mi

ary FURS. Oakland County, Mich.

Acticn in QAKLAN SE County. Mich,

My Commission Expires Octoder 25, 1988

~ ,

APPENDIX A-l

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Frederick L. Jerry

Plaintiff-Appellant,

-VsSe-

UAW=-LOCAL 735 &

GMC-HYDRA-NMATIC DIV-

ISION,

Defendants=- Appellees.

)

)

)

)

)

)

)

)

)

BEFORE: KEITH and NORRIS, Circuit Judges;

PECK, Senior Circuit Judge.

The Plaintiff has appealed from the

order filed August 5, 1986, and entered

September 10, 1986, denying his Rule 60(

b), Federal Rules of Civil Procedure, mo

tions to vacate the summary judgements for

the defendants. Pending in this court are

plaintiff's motion to reconsider his mo-

tion to perpetuate testimony, motion for

leave to amend defective jurisdiction, mo-

tion against fraud upon the court and mo-

tion for a special determination on the

wo OnN Wir F&F WwW ND EF

Nn YF YP FPF FP YP PP BP BY BP pb

o . 2S OG NM FOU ON UR CS

-22-—

A-2

motion against fraud uponthe court. Briefs

have been filed by the parties. Pursuant

to Rule 9(a), Rules of the Sixth Circuit,

this appeal has been referred to a panel

of the court for consideration. Upon ex-

amination of the documents filed in this

court and the district court record, this

panel agree unanimously that oral argument

is not needed. Rule 34(a), Federal Ryles

of Appellate Procedure.

Plaintiff was discharged from employ-

ment after a series of disciplinary action

were taken by General MOtors against him.

Grievances were filed regarding the dis-

Cciplinary actions and his discharge. A

representative of the International UAW

settle all four grievances and plaintiff

was awarded reinstatement, back pay, and

amendment of the suspensions recorded in

his work record. Plaintiff failed to re-

—_- WwW AN

27. Oo — cr Aw

22 3-

A=3

port to work andvas eventually terminated

In the complaint filed in the district

court, plaintiff sought recision of the

settlement and an award of monetary re-

lief. Summary judgment were entered in

favor of the defendants after. determinig

that plaintiffhad failed to allege facts

sufficient to state a cause of action.

After receiving numerous motions over a

four year period,thedistrictcourt entered

anorder denying plaintiff's Rule 60(b),

Federal Rule ofcivil Procedure,motions to

vacate. Plaintiff avpealed from that order.

A ruling ma Rule 60(b), Federal Rules

of Civil Procedure, motion to vacate is

appealable but it does not pring under

review the final judgment. Peake V. First

National Bank & Trust Co., 717 F. 2d1016

(6th Cir. 1983). The abuse of discretion

standard of review is applied to an appeal

oOo On NWN | W ND FE

FPP BFP YP YP BP PP B

I~ nn FW DN FE O

-~2h.

A-l

from the denial of a Rule 60(b) motion.

Smith v. Secretary of Health and Human

Services, 776 F. 2d 1330 (6th Cir, 1985);

Jasany v. United States Postal Service,

755 F.2d 1244 (6th Cir. 1985). The Motims |

filed by plaintiff merely restated matters

which were before the district court at

the time the summary judgmentwere grant-

ed. This Court therefore concludes that

the district court did not err in deny-

the motion to vacate.

Accordingly, the plaintiff's motions

are denied and tne order of the district

court is affirmed under Rule 9(b)(5),

Rules of the Sixth Circuit, because the

issues are not substantial and do not

require oral argument.

Entered By Order Of

The Court

~ 25=

APPENDIX B

NO. 86-1873

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Frederick L. Jerry

FILED

Plaintiff-Appellant, July 6.1987

Ve

GMC-HYDRA-MATIC DIV-

)

)

UAW=LOCAL 735; ORDER

{SION,

)

Defendants-Appellees.

BEFORE: KEITH and NORRIS, Circuit Judgess

an PECK, Senior Circuit Judge.

This matter is before the court upm

consideration of the motion for reconsid-

eration of the court's decision.

This court having carefully reexam-

ined the record, finds that it misappre-

hended no questions of law or fact in May

20, 1987, decision.

It is ORDERED that motion for recor

Sideration be denied.

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APPENDIX D-1

UNITED STATES OF AMERICA

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

FREDERICK L. JERRY Appeals Court's No.

86-1873

Plaintiff-Apvpellant,

District Court No.

-vs- 80=72246

Appeal from the Or-

UAW, Local 735 and der-of the

GMC, Hydra-Matic Div-

ision,

Defendants-Appellees

JURISDICTION

The Jurisdiction of this Court is In-

‘“veked under Title 28 U.S.C.A. Sect 1291

MOTION FOR CONSIDERATION

AND MODIFICATION OF APPEALS

COURT"S ORDER May 20, 1987

TO The DISCRETION OF THE COURT

Plaintiff-Appellant Frederick L. Jerry,

bring this Motion For Consideration And

Modification Of Appeals Court's Order May

20, 1987; Pursuant to Fed. Riles Of Civ.

Pro. Rule 3 and 5, and 60(b),(2),(3), and

2%

APPENDIX D2

52(b), amd 56(c) and Constitutional Amend-

ment 1 and 14, and local Rules of FRAP

Rules 27(a) and 8(c) under U.S.C.A.

26 Section 1291; on the grounds to avoid

an mis-carriage of Justice;on the grounds

the material evidence demand that case No.

80-7226 be remand back to District Court;

on the grounds the Court erred in its

judgement that breached Fed. Rules Of Civ.

Fro. Rule 60(b); Plaintiff-Appellant

states as follows:

1. The Court in denying Plaintiff's lMo-

tion To Set Aside Judgment Cbtained By

Fraud On The Court, filed Aug 4, 1985 (

hereinafter= filed Aug 4, 1985 Motion)

erred in its judgment by claiming Appeal

No. 86-1873 was filedto vacate UAW Local

735's Judgment of Jan 8, 1981.

a

18

20

in ee

APPENDIX D-3

2.-Plaintiffdo hereby says: In the GMC

UAW's Agreement the company recognize theUAW

,»Local 735 collectively as representatives

ofthe International Union (seeExh. 3). By

reason of that inseparability of the In-

ternational Union,the UAW,the Local 735,

the Appeal court erredby denying plaintiff's

filed Aug4,1985 Motion, that sought to. in-

clude the heretofore excluded International

Union, the UAW, in the establishment of

acaseor fraud and an existing conspiracy

to subvert the administration of Justice.

A fact acknowledge in the UA’ Local 735

"This isa dutyof Bir representation case

asainst the Local Unim,only.The Internat-

ional was not namedas a party. (Unquote)

That exclusion of

the International Union, meant the full

cause,as charged wasnot before the Court,

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-29-

APPENDIX D=-4

therefore Plaintiff charge the Court of

Appeals erred in denying filed Aug. 4,

1985 Motion to establish those defendants

therein case No. 80-72246.

3. Plaintiffdo says the Appeals Court

preached Fed. Rulesof Civ. Pro. Rule 60(

b) by sanctioning District Court's decis-~

ion in granting UAW Local 735 judgment,

and passing its opinion on matters not be-

fore the court. By that action, without

argument from Plairtiff, has nullified all

such future actions by Plaintiff in the

Appeals Court.

4, The Appeals Courtin denying plaintiff

filed Avg 4,1985 Motion, erred by not ack-

nowledging the International Union(herein-

after-International),UAW fraud and mis-re-

presentation in its claims of Settlement

withdraw(Unquote) Further evidence of those

charges of fraud, is acknowledge on page

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_—.

APPENDIX ‘E-1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

FREDERICK L. JERRY, Case No. 80-72246

Hon. Anna Diggs

Plaintiff, Taylor

¥.

UAW, Local 735 and

GMC, Hydra-Matic Div-

ison,

Defendants.

/

BRIEF IN OPPOSITION TO MOTION TO SET ASIDE

JUDGMENT

Introduction

The plaintiff has filed a motion to set

aside judgment obtained by alieged fraud

on the Court. For the purpose of this

brief, the allegations set forth in the

plaintiff's motion will be taken as true.

Statement of Facts

This action was originally filed on or

about June 20, 1980 in this Court. Summary

judgment was granted in favorof the Union

~31.

APPENDIX R_»o

Defendants on January 8, 1981.

On or about August 1, 1985, the Plain-

tiff filed an untimely motion to have the

Original judgment set aside alleging that

such decision was based on fraud. The

plaintiff specifically filed his motion

under Rule 60(b) (2) and (3) of the Fed-

eral Rules of Civil Procedure. See Plain-

tiff's Motion. Such motion was filed ap-

proximately 56 months after the final

judgment was rendered.

at2=

APPENDIX F-l

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

FREDERICK L. JERRY, Case No. 80-72246

Plsintiff, Hon. Anna Diggs Tay-

lor

-VS=

Re: UAW Local 735's

UA, LOCAL 735 and Judgment of Jan-

GMC, HYDRA-MATIC DIV- vary 8, 1981

ISION,

Filet Aug 4,1987

Defendants.

#

Tne Jurisdiction of this Court is Invoked

under Title 28 U.S.C. Section 1331

MOTION TO SET ASIDE JUDGMENT

OBTAINED BY FRAUD ON TH COURT

TO TH= DISCRETION OF THE COURT

NOW COMES Plaintiff, Frederick L.

Jerry, and bring this Motion To Set Aside

Judgment Obtained By Fraud On Tne Court,

and moves this Court pursuant to Federal

Rules of Civil Procedure Rule 60(b)(3) and

(2), Rule 5(b), Rule 15(a) under Title 28

U.S.C. Section 1655 and 2870, and under

(continue annexed page F-1)

-33 =

APPENDIX F-2

Title 28 U.S.C. Section1653; on the ground

the judgment of Defendant UAW Local 735

of 1981 and GMC, Hydra-Matic Division's

Judgment of January 28, 1981 in case No.

80-72246 and companion case NO. 82=70212

should be invalidated because of ekda il-

licit conspiracy; and states as follows:

1. Plaintiff charge: UAW and GHC's con-

tractual agreement settlement of January

19, 1979 is the fraudulent constructed in-

strument used in their conspiracy to de-

ceive the Court with malic in breach of

the grievance procedure,to obstruct just-

ice.

2. Plaintiff charge UAW and its Local

735 and GMC, Hydra-Matic Division blatanly

breached their contractual sgreement with

intent to impose financial and mental

hardship upon Plaintiff;—

- w

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-34-

APPENDIX F-3

4, Plaintiff charge: UAW and its Local

735 with breach of GMC-UAW Contract Agree-

ment's grievance procedure, and breachof

Duty and Trust in deceiving Plaintiff it

had negotiated grievance of March15,1978

» progressively through Grievance procedure.

5. Plaintiff chargeY UAW and its Local

735 bargain in bad faith by fraudulently

presenting contractual inactive grievances

of March 15, and March 29, and May 22,

1978 to the International to be pvrogress-

ively promoted from step 3, to the final

step four of the Grievance procedure;

thereby obtained an fraudulent Settlenmt

of January 19, 1979.

6. Plaintiff charge: Internation Union

(hereinafter International), UAW with

Fraud and misrepresentationinits claim

7+ Plaintiff charge: International, UAW

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-35~—

APPENDIX F-4

andits Local 735 and GMC, Hydra-Matic with

breach of UAW-GMC Contract Agreement.

8. Plaintiff charge: UN, Local 735 and

GMC, Hydra-Matic Division conspired to

deny grievances of March 15, March 29,ad

May 22, 1978 proper union representation,

to get Plaintiff discharged through GMC's

penal system.

9. Plaintiff charge: UAW and its Local

735 and GMC, Hydra-Matic Division withan

illicit conspiracy to deceive the Court

by the use of their fraudulent obtained

Settlement of January, 1979 and did there-

by obtained an judgments in case No. 80-

72246 and companion case No. 82=70212 a-

gainst Plaintiff.

10. Plaintiff charge: The Court being

deceived by the defendants illicit con-

spiracy to obstruct justice, caused itto

error in the granting of Judgment incase

-36-

APPENDIX F-5

No. 80-72246 and companion case No. 82-

70212, and both cases should be invali-

—- W wm

dated because of that illicit conspiracy.

11. Plaintiff charge: The controversy

concerning terms therein settled, and tre

S OW WN

validity or invalidity of the Settle-

=37=

APPENDIX F-6

ment of Januaryl19, 1979,render it invalid.

12. That this motion is based upon the

pleading herein, the Affidavit of Fred-

erick L. Jerry submitted herewith, and all

the pleadings in this case No. 80-7 246

and case NO. 82-70212. ,

13. That this Motion is supported by its

Brief In Support Of Motion To Set Aside

Judgment Obtained By Fraud On The Court.

14. That this Motion is based upon the case

of Root Refining Co, -v tmniversal Oil Prod-

ucts Co. American Safety Table -vs- Singer

Sewing Machine Co. (1948) 169 F.2d 514.

WHEREFORE, Plaintiff, FrederickL. Jerry

prays that this Honorable Court grant tre

MOtion To Set Aside Judgment Obtained By

Fraud On The Court; and set aside Judg-

ment of UAW Local 735 of January 8, 1981;

Grant entry of Motion To Additional Or

Amend Findings And Judgment, and Change

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_ *

APPENDIX F-7

Relief. & opinion (docket No. 43); Grant

leave to file MOtion For Leave To Amend

Defective Jurisdiction, hereto attached

as Exhibit G; and Grant an expeditious

rehearing of all charges of illicit con-

Spiracy and full disclosure ofall charges

of fraud in case No. 80-7226.

-39=

APPENDIX G-l

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

U.S. Post Office & Courthouse Building

Cincinnati, Ohio 45202

September 24, 1985

John P. Hehman

Clerk

Frederick L. Jerry

21331 Kipling

Oak Park, Michigan 48237

RE: 85-1562 Frederick L. Jerry

v. General Motors Corpora-

tion D.C. #82-70212/Taylor

Dear Mr. Jerry:

Enclosed please find a copy of the

order which was entered today in the

above-styled appeal.

Yours very truly,

JOHN P. HSHMAN, CLERK

Tom Bennignus, Deputy

Enclose

XC: Mark R. Flora

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21

my,

Appendix H-1

(5l)in Settlementof 1-17-49 or there-about,.

4, Plaintiff charge: UAW-Local 735 in

Breach offairrepresentation and Breachof

Collective Bargaining Agreement's paragraph

(5) and GMC-Hydra-Matic Division with

Aiding and Abeting.

5. Plaintiff charge: UAiw-Local 735 in

Breach of Duty in fair representation,

Fraud and Breach of Trust in unlawful use

of Grievance Procedure, in Settlement of

1-17-79 or there-about, Aid and Abet by

GMC_Hydra-Matic Division.

6. Plaintiff charge UAW-Local 735 in

Breach of Duty and Breach of Trust in

Grievance Procedure.

7. Plaintiff base this plead upon case

"VACA ET AL. -ve- SIPES ADMINISTRATOR, 386

U.S. 171, S, CT. 903, 17 L. Ed. 2d 842

8. This suit is supported by Plaintiff

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-41 .

APPENDIX H=2

brief in support of its Suit for Fecissim

and Damages.

WHEREFORE, Plaintiff, pray that the

Court will grant Recission of written

Settlement of 1-17-79 or thereabout and

order Defendants UAW-Local 735 to paythe

Plaintiff Punitive Damages in amount of

$700,000 and GMC-Hydra-Matic Division be

ordered to vay Plaintiff Punitive Damages

in amount of 3500,000, for cruel and un-

usual emotional trauma.

( continue page 4)

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~42-

APPENDIX I-1

1976 GM-UAW

CONTRACT SETTLEMENT

AGREEMENT

the Union, provided that each such employe

executes or has executed the following "

Authorization for Check-Off of Dues" from;

‘provided further however, that the Corpo-

ration will continue to deduct monthly

membership dues from the pay of each em-

ploye for whom it has on file an unrevoked

Authorization for Check-Off of Dues form.

"AUTHORIZATION FOR CHECK-OFF OF DUES

To: General Motors Corporation

"I hereby assign to Local Union No. .

International Union, United Automobile,

Aerospace and Agricultural Implement Workes

of America(UA'), from any wages earned or

to be earned by me as your employee, or

from any Regular Benefits to be paid to me

under the Supplemental Unemployment Bene-

fit Plan (in my present or in any future

emoloyment by you), such sums as the Fin-

ancial Offer of said Local Union iyNo.---_

may certify as due and owing from me as

membership dues, including an initiation

or reinstatement fee and monthly dues in

such sums as may be establish from timeto

time as union dues in accordance with the

Constitution of the International Union,

UAW. I authorize and direct you or the

Trustee of the GM-UAY Supplemental Unem-

ployment Benefit Plan Fund, as the case

may be, to deduct such amounts from mypay

or from any Regular Benefits and to remit

same to the Union at such time and insuch.

ah 3

APPENDIX I-2

manner as may be agreed upon between you

and the Union at any time while this au-

thorization is in effect.

"This assignment, uthorization and di-

rection shall be irrevocable ir the period

of one (1) year from the date of delivery

hereof to you, or until the termination of

the collective agreement between the Com-

pany and the Union which is in force at

the time of delivery of this authorization

and direction shall be automatically re-

newed, and shall be irrevocable for suces-

Sive period of one (1) year each or for the

period of each succeeding applicahle col-

lective agreement between the Company and

the Union, whichever be shorter, unless

written notice is given by me to the Com-

pany and the Union not more that twenty (

20) days and not less than ten (10) days

peior to the expiration of each period of

one (l1)year,or of each applicable collec-

tive agreement between the Company and the

Union whichever occurs sooner.

— Ah

APPENDIX J-l

to entertain an independent action

a party from a judgment, order, or

proceeding, or grant relief to a

defendant not actually personally

notified as provided in Title 28

U.S.C. Section 1655, or to set ae: -

Side a judgment for fraud upon the

court.

In Andy W. McBeath -vs- Inter-American

Citizens For Decency Committee, the Fifth

Circuit Court of Appeals, wherein the

Court stated:

"MicBeath should have been allowed

to develop this evidence in a full

hearing on the merits where the is-

sue of jurisdiction and the merits

are so closely tied together and in-

separable. It was error for the

court to preclude him from so doing.

"See Andy W. McBeath -vs=- Inter-

American Citizens For Decency Com-

mittee, C.A. 5th, 1967, 374 F.2d

359.

For all reasons stated in McBeath case,

Defendants motion must be dismissed.

IV. CONCLUSION

For all the reasons stated above, Plain

tiff Frederick L. Jerry respectfully re-

quest and prays that tnis Honorable Court

-45-

APPENDIX J=2

| grant his Motion For Dismissal Of Defend-

ants Opposition Motion (docket entry No.

88); and grant Plaintiff's Motion To Set

Aside Judgment Obtained By Fraud On The

Court (docket entry No. 87), and treat

Same as the institution of an independ-

ent action.

Address 21331 Kipli

Oak Park, Michigan 48237

Phone: (313) 5447736