Petition for Writ of Certiorari — Edwards v. Reed

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IN THE SUPREME COURT OF THE UNITED STATES

October 1975 Term cdsindea aaah

No.

DANIEL L. EDWARDS, JR., PETITIONER

THOMAS C. REED, SEC’TY OF THE AIR FORCE, ET AL.,

PETITION FOR WRIT OF CERTRIORARI TO

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

WILLIAM J. DAVIS

COUNSEL FOR

PETITIONER

855 EAST LONG STREET

COLUMBUS, OHIO 43203

(614) 253-8503

AND

JOSIAH BLACKMORE

CAPITAL UNIVERSITY

LAW SCHOOL

2199 EAST MAIN STREET

COLUMBUS, OHIO 43209

(614) 236-6395

FLEE? THROUGH

INDEX

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Femmes for Girerting Writ 5 i ec wean 3-4

Ne a ek oe Unik n Gal warn wale mia ee eee 5

Appendix A

Order & Opinion of U.S. Court of Appeals

RP ieee On LE ane arte eae 6-7

Order & Opinion on Petition for Rehearing .......... 8

Judgment Entry of U.S. District Court .............. 9

Opinion & Judgment Order of U.S. District Court 10-14

Appendix B

am OS. TO wk Ft OD nas so ks ecco evan ns 15

TABLE OF CASES

Austin vs Reynolds Metal Co, 327 F Supp. 1145 .......... 4

Beckum vs Tennessee Hotel, 341 F Supp. 991,

SO Ne oo wh bare ead 4

Harris vs Walgreen's Distribution Center,

ee ar I NS Ss dc wa ex cua ek caw ear ES 4

-|

a

ogy —

| N DE X (Con't)

TABLE OF CASES PAGE

Houston vs General Motors Corp., 477 F 2d 1003

ee Gee Wan bdle e:6 #Gs 00.8 6 ad 4

McQueen vs E.M.C. Plastic Co., 302 F Supp. 881

ra eta ale bd a pla allel ekg # 4c0-4.4 6 9-829 006 89 4

Pace vs Super Value Store, Inc. 55F RD187............. 4

Prescod vs Ludwig Industries, 325 F Supp. 414,

NIRS a ha a ee a 4

i i - - Tex “

ee ae a eb ike wack WS. 6a es eee 5

STATUTES

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42 U.S.C. Section 2000 (e)- 16 (c) ................ 2,3, 4,5

IN THE SUPREME COURT OF THE UNITED STATES

October 1975 Term

No.

DANIEL L. EDWARDS, JR., Petitioner,

V

THOMAS C. REED, SEC’TY OF THE AIR FORCE, ET AL.,

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

To the Honorable, the Chief Justice and Associate Justices of

the Supreme Court of the United States:

Daniel L. Edwards, Jr., the petitioner herein, prays that

a writ of certiorari issue to review the judgment of the United

States Court of Appeals, Sixth Circuit of Ohio, entered in the

above-entitled case on November 25, 1975.

OPINION L

The Order and Opinion of the United States Court of

Appeals, Sixth Circuit is unreported and is set forth in

Appendix A, hereto, infra, pages 6 and 7. The Judgment of the

United States Court of Appeals, which is appealed from is set

forth in Appendix A hereto, infra, page 8. The Judgment and

Opinion of the United States District Court, Southern District

of Ohio, which was sustained by the Court of Appeals is set

forth in Appendix A hereto, infra, pages 9 through 13.

FLrPEO THROILIGH

JURISDICTI

The Judgment of the United States Court of Appeals,

Sixth Circuit, was entered on October 6, 1975. A timely

Petition for Rehearing was denied on November 25, 1975,

Appendix A, page 8. The Judgment of the Supreme Court of

the United States of America is invoked under 28 U.S.C.

Section 1254 (1), 42 U.S.C. Section 1984, and 42 USC.

Section 2000 (e)-16 (c).

QUESTI P

I. Whether the District Court lacked jurisdiction in the

subject matter under 42 U.S.C. Section 2000 (e)-16 (c).

2. Whether the action was time-barred by delay in filing

under 42 U.S.C. Section 2000 (e)-16 (c).

STATUTES

42 U.S.C. 2000 (e)-16 (c), Civil Action by Party

Aaggrieved,

Within thirty days of receipt of notice of final action

taken by a department, agency, or unit referred to in

subsection 717 (a) (subsec. (a) of this section), or by the

Civil Service Commission upon an appeal from a

decision or order of such department, agency, or unit on

a complaint of discrimination based on race, color,

religion, sex or national origin, brought pursuant to

subsection (a) of this section, Executive Order 11478,

or any succeeding Executive orders, or after one

hundred and eighty days from the filing of the initial

charge with the department, agency, or unit until such

time as final action may be taken by a department,

agency or unit, an employee or applicant for

employment, if aggrieved by the final disposition of his

complaint, or by the failure to take final action on his

complaint, may file a civil action as provided in Section

706 (42 USC 2000e-5), in which civil action the head of

the department, agency, or unit, as appropriate, shall be

the defendant.

PLEE™ THROUGH

STATEMENT OF TH

This case arose by reason of an appeal of the petitioner

of his removal from a permanent civil service position with the

United States Government. On May 17, 1973, the petitioner

received a letter from the Civil Service Commission informing

him of a Decision adverse to him and advising him of a

Statutory right to file a civil action within the 30 day period.

The petitioner who did not have funds at that time to hire an

attorney, wrote a letter to the Clerk of United States District

Court, Southern District of Ohio, dated June 14, 1973,

requesting that his case be filed and that he be appointed

counsel and that Court fees be waived as provided by statute.

The Clerk assigned a case number upon receipt of the

petitioner's letter and on July 13, 1973 the Court denied the

petitioner’s request to proceed in forma pauperis. The Order of

denial contained the assigned case number. Thereafter the

petitioner, using the charity of his relatives, hired his present

attorney who filed a formal complaint under the previously

assigned case number on Sept. 20, 1973. The United States

District Court dismissed petitioner's complaint on the grounds

that it lacked jurisdiction over the suit under their doctrine of

sovereign immunity and also on the grounds that the action was

time - barred under 42 U.S.C. Section 2000 (e).

REASON FOR GRANTING WRIT

The problems peculiar to this case will arise in many

instances where the petitioner, who was formerly a GS-12, loses

his job and is in such heavy debt that he could not obtain an

attorney within thirty days after the time he had exhausted his

administrative appeal. There is an inherent conflict between

Title VII's thirty day stautory limit for filing a civil action after

receiving notice of a right to sue and its provision giving a

complainant the statutory right to request a Court appointed

attorney and the waiver of fees. See Houston vs General Motors

Corp., 477 F 2d 1003 (8th Cir 1973); Harris vs Walgreen's

Distribution Center, 456 F 2d 588 (6th Cir 1972); Prescod vs

Ludwig Industries, 325 F Supp. 414 (ND II! 1971); Beckum vs

Tennessee Hotel, 341 F Supp. 991 (WD Tenn 1971 , Austin vs

Reynolds Metal Co., 327 F Supp. 1145 (ED vs 1970); McQueen

vs E.M.C. Plastic Co., 302 F Supp 881 (DC Tex 1969); Pace vs

Super Value Stores, Inc, 55 FRD 187 (1972), Reyes vs

Missouri - Kansas - Texas RR Co., 53 FRD 293 (1971). In this

instance the petitioner wrote a letter to the Clerk of the District

Court within thirty days of receipt of the Civil Service

Commission's Decision.

It is the Petitioner's contention that this Court ought to

clearly set forth that any alleged indigent who takes action

under 42 U.S.C. 2000 (e)-16 (c) has satisfied the thirty day

statutory limit for filing a civil action under Title VII and

especially where the Court’s Order assigning counsel and

waiving fees, or denying for the alleged indigent, as in this case

indicates a file number assigned to the letter of complaint.

Alleged indigents ought not to be required to file formal

pleadings if they make a request to the Court as did the

petitioner within the thirty day period. The petitioner can find

no case in this Court clearly delineating the rights of alleged

indigents proceeding under 42 U S C 2000 (e).

CONCLUSI

For the foregoing reasons, this petition for writ of

certiorari should be granted.

Respectfully submitted,

William J. Davis

Counsel for Petitioner

855 East Long Street

Columbus, Ohio 43203

(614) 253-8503

CERTIFICATE OF SERVICE

| certify that a copy of the foregoing document was served by

U. S. mail postage prepaid, this 23rd day of February 1976

upon Robert Bork, Solicitor General, Department of Justice,

Room 5612, Washington D.C. 20530.

William J. Davis

FLEE? THROUGH

No. 75-1160

FILED

UNITED STATES COURT OF APPEALS OCT6-1975

JOHN P. HEHMAN, Clerk

FOR THE SIXTH CIRCUIT

DANIEL L. EDWARDS, JR.,

Plaintiff-Appellant,

vs.

ROBERT SEAMANS, Secretary of

The Air Force,

Defendant-Appellee.

Before: EDWARDS, CELEBREZZE and LIVELY, Circuit

Judges.

)

)

)

ORDER

)

)

)

)

On receipt and consideration of an appeal in the

above-styled case, and

Noting from the briefs, records and oral argument that

the District Court dismissed this cause of action on pleadings on

the grounds 1) that the court lacked jurisdiction and 2) that the

action was time - barred by delay in the filing of same; and

Noting further that plaintiff was discharged on April 23,

1962; that he was rehired and again discharged in December of

1971; and

Further noting that his Civil Service complaints were

finally denied on May 4, 1973, and that on that date he was

notified that he had a right to file a complaint in the United

States District Court within thirty days; and

“APPENDIX A”

PLEE 2 THROUGH

JOHN P. HEHMAN, Clerk

POS: A A RI LET Et

Further noting that his complaint was actually filed

September 20, 1973, four and one-half months after final

administrative denial and a year and a half after the effective

date of the 1972 amendments to the Equal Employment

Opportunity Act (March 24, 1972),

Now, therefore, the judgment of the District Court is

affirmed for the second of the two reasons relied upon by the

District Judge. See 42 U.S.C. 2000e - 16 (c).

Entered by order of the Court

Clerk

“APPENDIX A”

PLEE® THROUGH

No. 75-1160

FILED

UNITED STATES COURT OF APPEALS NOV 25 - 1975

FOR THE SIXTHCIRCCUIT jou p. HEMMAN, Clerk |

DANIEL L. EDWARDS,

Plaintiff-Appellant,

” ORDER

ROBERT SEAMANS, et al.,

Defendants-Appellees.

— ee ee ee eee eee ee ee Se

BEFORE: EDWARDS, CELEBREZZE and LIVELY, Circuit

Judges.

On receipt and consideration of a petition for rehearing

in the above - styled case; and

Noting all petitioner’s arguments concerning the facts in

the case and preceiving no fact which would serve to toll the

statutory limitation beyond a point of 30 days after July 12,

1973,

Now, therefore, said petition for rehearing is hereby

denied.

Entered by order of the Court

Clerk

“APPENDIX A”

“APPENDIX 1”

UNITED STATES DISTRICT COURT i

SOUTHERN DISTRICT OF OHIO FILED

WESTERN DIVISION

OCT 30 - 1974

DANIEL L. EDWARDS, JOHN D. LYTER, Clerk ©

,

Plaintiff,

V. Ms

ROBERT SEAMANS, et al., Civil No. 4475

Defendants.

JUDGMENT

This action came on before the Court, the Honorable

Car! B. Rubin, United States District Judge, presiding, upon the

motion of Defendants for dismissal under Rule 12(b), Fed. R.

Civ. P., by asserting that the Court has no subject matter

jurisdiction over this action, and a decision by the Court

thereon having been filed on July 22, 1974, now therefore, in

accordance therewith,

IT 1S ORDERED AND ADJUDGED that the plaintiff

herein take nothing, that this action is DISMISSED and that the

defendants, Robert Seamans, et al., recover of the plaintiff,

Daniel L. Edwards, their costs of action.

Done at Dayton, Ohio July 22, 1974

JOHN D. LYTER, CLERK

Rebecca J. Ellis

“APPENDIX A”

FPLEE? THROUGH

“APPENDIX Il"

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

FILED

DANIEL L. EOWARDS, OCT 30 - 1974

JOHN d. LYTER, Clerk

Plaintiff,

v. Civil No. 4475

ROBERT SEAMANS, et al.,

Defendants

OPINION AND

JUDGMENT ORDER

This is a civil action in which plaintiff, Daniel L.

Edwards, seeks declaratory and injunctive relief against the

Secretary of the Air Force Equal Employment Opportunity

Counselor, and other Air Force Officers.

Edwards, a Caucasian, claims that in the course of his

civilian employment at Wright-Patterson Air Force Base, he was

discriminated against on the basis of race and religion,

culminating in his dismissal from two separate jobs. He also

alleges that the procedure followed in processing his intra -

agency discrimination complaints violated his First, Fifth, and

Ninth Amendment rights entitling him to reinstatement to his

former position, back pay, and attendant retirement benefits.

Jurisdiction is invoked under the First, Fifth, and Ninth

Amendments to the United States Constitution, 5 U.S.C.

702-706, 28 U.S.C. 1331, 1343 (4), 1391 (e) and 2201 et seq.,

as well as 42 U.S.C. 2000e.

The defendants have moved for dismissal under Rule

12(b), Fed. R. Civ. P., by asserting that the Court has no subject

matter jurisdiction over this action. A consideration of the

history of this dispute is necessary for the disposition of the

Government's motion.

“APPENDIX A”

-10-

PLEESD THROUGH

From 1942 until 1961, plaintiff apparently performed

his duties as a GS-12 satisfactorily and without strife with his

superiors. In June and September of 1961, plaintiff claims that

his military supervisors asked him to donate money to church

fund drives. Because of retaliations which flowed from his

refusal to donate, and the denial of a requested hearing to

investigate discrimination against black job applicants, plaintiff

filed several complaints with the Air Force Logistics Command

Inspector General. He was denied hearings on these complaints,

and was discharged in April of 1962. Subsequently, he secured a

lesser position at the Base but was again discharged in 1971.

Plaintiff continued to file complaints with the Chief Equal

Employment Opportunity Counselor concerning the misdeeds

committed against him up until 1973. All of these complaints

were dismissed without hearing. Plaintiff took three separate

appeals to the Civil Service Commission Board of Appeals and

Review. Their final decision upheld the Equal Employment

Opportunity Officer’s rejection of plaintiff's last complaint

under the authority of 5 CFR 713.215 and 713.231 (b) and

advised the plaintiff of his right to file a civil action under 42

U.S.C. 2000e-16 within thirty days of receipt of their opinion.

s 713.215 states in part as follows:

The head of the agency or his designee may reject a

complaint which was not timely filed and shall reject those

allegations in a complaint which. . .set forth identical matters as

contained in a previous complaint filed by the same

complainant which. . .has been decided by the agency.

s 713.215 (b) states in pertinent part:

A complainant may not appeal to the Commission when

the issue of discrimination giving rise to the complaint is being

considered, or has been considered, in connection with any

other appeal by the complainant to the Commission.

“APPENDIX A”

et.

FLEE? THROUGH

DebALR Gtk nh a

A copy of the final decision of the Board, dated May 4, 3

1973 accompanied a request by plaintiff filed June 15, 1973 to i

proceed in forma pauperis in this action (the request was denied f

July 12, 1973); the complaint initiating this suit was filed ,

September 20, 1973. i

We need not and do not reach the merits of the |

plaintiff's charges, for it is clear from the facts of his complaint

that this Court lacks subject matter jurisdiction over this suit

under the doctrine of sovereign immunity. A basic axiom of

federal judicial review is that the United States, either as a party

or through its officers, cannot be sued unless it has consented to

be sued. Larson v. Domestic & Foreign Commerce Corp., 337

U.S. 682 (1949). A suit is against the sovereign if:

. . .'the judgment sought would expend itself on the

public treasury or domain, or interfere with the public

administration’. . .or if the effect of the judgment would

be ‘to restrain the Government from acting, or to

compel it to act.’

Dugan v. Rank, 372 U.S. 609, 620 (1963).

Such is the case here where Plaintiff seeks declaratory and

injunctive relief including a money judgment.

The enabling provisions contained in the Equal

Employment Opportunity Act of 1972 do allow for the relief

sought against the Air Force, but plaintiff has not met the

statute’s mandates. The language of 42 U.S.C. s 2000 (e) - 16

clearly provides that:

within thirty days of receipt of notice of final action

taken by a department agency, or unit. . .or by the Civil

Service Commission upon an appeal from a decision or

order of such department, agency, or unit. . .an

employee . . .may file a civil action. . .

Interpreting identical time limits contained elsewhere in the

Act, the Sixth Circuit has held that:

The permissive word ‘may’ refers to the option of the

aggrieved party to bring a lawsuit, not to a discretion in

“APPENDIX A”

. 92.

SPE IS. ALOE LS EGLO EE ARES PTI REE IE EEE SS ET NET eS

PLEE? THROUGH

RR ROS OANA NT, Aen RTE 1s a pe Dense

the Court to receive the case following expiration of the

30 days.

Goodman v. City Pr t rporation nF i

Div., 425 F. 2d 702, 703 (6th Cit. 1970).

Even accepting the averments of the complaint as true

plaintiff's claims must be rejected. Such allegations are

primarily directed at events which transpired in 1962 and the

relief sought would involve reinstatement to the GS-12 position

which plaintiff held at that time. Under the authority of Place

v. Weinberger, 42 U.S.L.W. 2595 (6th Cir. 1974), 42 USC.

2000 (e)-16 is only prospective in nature, having no application

to activities occurring before its passage.

It being apparent that this suit is barred under 42 U.S.C.

2000 (e), plaintiff's complaint as it now stands leaves him

without a remedy against the Government. Assuming arguendo

that plaintiff's allegations of constitutional! deprivation under

the First, Fifth, and Ninth Amendments are not wholly

insubstantial, this Court has no jurisdiction under 28 U.S.C.

1331 or 28 U.S.C. 1343 (4) to grant the requested relief. These

jurisdictional statutes do not create actionable rights. They

merely vest in the Federal courts the power to adjudicate viable

causes of action. Since neither section manifests a waiver by the

United States of its sovereign immunity, neither section grants

authority to decide these claims. Anderson v. i tates

229 F. 2d 675 (5th Cir. 1956); Cotter Corporation v. Seaborg,

370 F. 2d 686 (10th Cir. 1966); Commonwealth of Kentucky

Ex. Rel. Hancock v. Ruckelshaus, 362 F. Supp. 360 (W.D.Ky.

1973); Smallwood v. ULS., 358 F. Supp. 398 (E.D.Mo. 1973),

aff'd. 486 F. 2d 1407 (8th Cir. 1973). Jurisdiction cannot be

founded on 5 U.S.C. 702 - 706 for the same reasons. As was

stated in Sierra Club v. Hickel, 467 F. 2d 1048 (6th Cir. 1972),

cert. den. 411 U.S. 920, the Administrative Procedure Act does

not waive sovereign immunity in an action involving officers of

the Executive Branch. See also, Bramblett v. Desobry, 490 F.

2d 405 (6th Cir. 1974); Commonwealth of Kentucky Ex. Rel.

Hancock v. Ruckelshaus, supra, Nor does the Declaratory

Judgment Act afford jurisdiction in this matter. The rationale

of a comparable case is dispositive:

“APPENDIX A”

oe.

FLEE? THROUGH

HP MS By OODi ga

nt APS OP 072 RO, 2 ROR ———, __.

.. .by virture of Plaintiff's theory of the case a decision

by this Court concerning the validity of the discharge

necessarily involves an adjudication of the claim for

back wages. . .That the complaint is cast in terms of a

declaratory judgment action cannot alter the fact that

what in substance is sought is a money judgment against P

the United States for back pay in excess of $10,000.

Carter v. Seamans, 411 F. 2d 767, 771 (5th Cir. 1969), 7

cert. den, 397 U.S. 941. .

Plaintiff's other jurisdictional invocations under the

First, Fifth and Ninth Amendments and 28 U.S.C. 1391 (e),

merit little discussion. It is well settled that constitutional

amendments do not confer jurisdiction, nor does a statute

governing venue. Weaver _v. Kelton, 357 F Supp. 1106 (E.D.

Texas 1973).

For the reasons stated above, the Government’s motion

is GRANTED, and the complaint is therefore DISMISSED

without prejudice.

Let Judgment Enter In Accordance With The Foregoing.

Carl B. Rubin

United States District Judge

“APPENDIX _ A”

OR REPRE OES NEEL PT Ped REIT . x -

AE a LE Lr a a kee Sa Nines Gites: See Re ED

1343

(4)

1391

Civil Rights and Elective Franchise - The District Courts

shall have original jurisdiction of any civil action

authorized by law to be commenced by any person;

To recover damages or to secure equitable or other relief

under any Act of Congress providing for the protection

of civil rights, including the right to vote.

- (e) A civil action in which each

defendant is an officer or employee of the United States

or any agency thereof acting in his official capacity or

under color of legal authority, or an agency of the

United States, may, except as otherwise provided by

law, be brought in any judicial district in which: (1) a

defendent in the action resides, or (2) the cause of

action arose or (3) any real property involved in the

action is situated or (4) the plaintiff resides if no real

property is involved in the action.

“APPENDIX B”

ee.

C peo ae

CADE AWE NR Ys

LACE IN Ty Dire

LA ate ram

AE EE EE LS ELLEN RAE OOS LTE LE NIN LS TLIO GIG EL EATS ANI CR a

PLEED THROUGH