# Petition for Writ of Certiorari — Edwards v. Reed > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0160%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1976 - **Citation:** 426 U.S. 934 ## Text 4 ” a Qa ? —oe cER : 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 PAGE Whe Mae a eee a 1-2 ie a i Warp odie aaa a A Wo Paces ee ek 2 oe Wc vhs wk ees Oe eee 2 no ree lg an OER + mahae de See 2 SI a es a ty a da aa ecu aoe w Roe _ 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 ee I CU ee cc cee kee ease meaees dane 2 ee OE i es eas ook ee a se 15 Be Whee, ITD TP OE on in ee cic w eee 15 ey nk kana be bh a siteyebawaseaa 2 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0160%3A1. Public record. Not legal advice.