Petition for Writ of Certiorari — Elshinnawy v. Dalton

() FILED

\

932057 MAY 20 19%

NO. _______peri@E-OF—THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

ABDELFATTAH M. ELSHINNAWY - Petitioner

Vs,

H. LAWRENCE GARRETT, III - Respondent

Secretary,

Department of the Navy

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COUT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

A. Me. ELSHINNAWY

Petitioner, Pr0O-se

397 Stratford Avenue

Collegeville, PA 19426

(610)489-3605

QUESTIONS PRESENTED

Simply put: Can an average American (i.e. lay-

man in the law and not rich to afford an attor-

ney) obtain, pro-se, relief from ten years of

discrimination, reprisal actions and obstruction

of justice by his employer, which resulted in

the destruction of his professional career that

took a great deal of investment and effort to

build? Should the justice system, having been

made aware of at least the possibility of major

violations of the law, look the other way and

use its discretion in the interest of reducing

the backlog of cases or should it, in the inter-

est of justice, even walk an extra mile in the

judicial process to ascertain at least some of

facts before making a decision?

PETITION FOR

STATES COURT

QUESTIONS PRESENTED + + «© e© # «# me: i

INDEX TO APPENDICES + +*+ * * # «# «* ii

TABLE OF AUTHORITIES ~. ~ +« «© o« o« o iii

OPIN Gee ween @-. ©. 8:4. 68.. 4 cee sees 2

JURISDICTION ee eee eee ees eT 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

[erent ..* 8 Se ee ee ee eee ee 3

STATEMENT OF THE CASE Ace ee ey 3

TABLE OF CONTENTS

WRIT OF CERTIORARI TO THE UNITED

OF APPEALS FOR THE THIRD CIRCUIT

REASONS FOR GRANTING THE WRIT - «© « -« 13

CONCLUSION

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

e e e ° ° e . . * o 25

INDEX TO APPENDICES

Opinion of the Court of Appeals

for the Third Circuit (Filed

February 17, 1994) The ae Al

Court of Appeals' denial of the

petition for rehearing (Issued

March 17, 1994) el ee A3

Opinion of the U.S. District

Court for the District of New

Jersey » 2 . * . . . Ad

Opinion of the U.S. District

Court for the District of New

Jersey Closing 90-3510 . . A6

Report and Recommendation of the

ii

a i ml

Page

Magistrate, adopted by the U.s.

District Court for the District

of New Jersey om eligqguwce +6 A7

Appendix F The Out-of-Court Settlement

Agreement - + +©+ +* «# « « « Al6

Appendix G MSPB Order to dismiss the removal

from employment - - + « « « A24

Appendix H Opinion of the U.S. District Court

for the District of New Jersey to

Giemiss 91-2281 - «-« « « « «+ A29

Appendix I Opinion of the U.S. District Court

for the District of New Jersey

denying expansion of the record A34

Appendix J Text of General Rule 12(C) of U.S.

District Court's General Rules A36

Appendix K Text of Rule 60 of Federal R.

Civ. P. . - + >. o - . o A39

Appendix L Assistant U.S. Attorney's Itemized

Bill of Costs AD. 2, OE PIE 8S A4l

Appendix M Assistant U.S. Attorney's letter

dated March 30, 1994 + + «+ «+ A44

Appendix N District Court's letter to Assis-

tant U.S. Attorney dated

March 3l, 1994 . . . . . . A47

Appendix O District Court's Order for

a ee ee, oe

Appendix P Assistant U.S. Attorney's letter

dated April 28, 1994 ~.- + «+ «+ A49

TABLE OF AUTHORITIES

CASES

None. As a pro-se engineering litigant, so far

iii

I lack the knowledge of properly using the sys-

tem to compile a list of appropriate cases.

STATUTES

General Rules of the United States District

Court for the District of New Jersey:

Page

teh 8900).. 260 wii aicetcsin ig at 3 13, 21

Rule 1(A) » gx ip iter rset sl «@ 2S 21

Federal R. Civ. P.:

Seee GG: a: wc ledndaetcebané< re! « w -« 13

Section 2865 of Rule 60 - - « - 14, 15

Section 2857 of Rule 60 - + «© «+ -« 16

Section 2864 of Rule 60 - + « - 17, 18

U.S.C.S.

Title 42, Section 2000e-5(f)(2) - 13, 15

Title 42, Section 2000e-5(f)(5) - 13, 15

United States Constitution which guarantees the

right for individuals to have a fair day in

court to obtain relief from justice.

OTHERS

None. Again, as a pro-se engineering litigant

so far I lack the knowledge of properly using

the system to compile a list of appropriate

cases.

te |

,

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

ABDELFATTAH M. ELSHINNAWY - Petitioner

vs.

H. LAWRENCE GARRETT, III - Respondent

Secretary,

Department of the Navy

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Petitioner, A. M. Elshinnawy, respectfully

prays that a writ of certiorari issue to review

the judgement order of the United States Court

of Appeals for the Third Circuit: (1) Affirming

the order rendered by the United States District

Court for the District of New Jersey denying my

motion, to the District Court, to reopen dis-

crimination case No. 90-3510 and (2) Costs

taxed against appellant.

OPINIONS BELOW

The opinion of the Court of Appeals appears

in Appendix A to this petition. The Court of

Appeals’ denial of the petition for rehearing

appears in Appendix B. The opinion of the U.S.

District Court for the District of New Jersey

appears in Appendix C to this petition. The re-

port and recommendation of Magistrate Judge

John J. Hughes, adopted by the District Court

for the District of New jersey appears in Appen-

dix E. Other orders needed in support of my

petition are mentioned in the appropriate pla-

ces and are included as appendices.

JURISDICTION

The Court of Appeals’ opinion in this matter

was filed on February 17, 1994 as shown in App-

endix A. A timely petition for rehearing was

filed on March 2, 1994. The Court of Appeals’

denial of the petition for rehearing was issued

on March 17, 1994 as is set forth in Appendix B.

This Court's jurisdiction was attested to by the

staff of the Court of Appeals.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

In addition to the constitutional right to

have a fair day in court for being severly affe-

cted by unlawful adverse actions by my previous

federal employer, other statutes and provisions

involved in the case are set out verbatim where

they are appropriately referred to in the text

or included as appendices. A complete list is

included in the "Table of Authorities" on page

iii of this petition.

STATEMENT OF THE CASE

I was born in Egypt on February 1, 1933.

I obtained my B.S., with-honors, in mechanical

engineering and worked in private industry for

five years. Then, I decided to come to the Uni-

ted States to further my education. At Columbia

University in New York City I obtained my M.S.

and Ph.D. in mechanical engineering. I worked

in private industry from 1966 to 1982 when I

joined the Research and Development Group at the

Naval Air Engineering Center (NAEC) in Lakehurst,

N.J.. At NAEC I used my education and experience

productively to accomplish NAEC's role in the

3

Navy's mission. Since I joined NAEC, many pro-

motional opportunities were posted yearly for

which I applied and was not selected. Very

quickly, a discrimination pattern was observed

but I chose not to take any formal action again-

st it. However, after more than five years with

out any advancement whatsoever, I submitted my

first EEO complaint and then others followed.

These formal actions against discrimination did

not result in anything positive. On the contra-

ry, while discrimination continued, reprisal

actions were taken against me which intensified

as time went on together with some acts of ob-

struction of justice. After exhausting all admi-

nistrative remedies in vain, I filed Civil Acti

90-3510 in the U.S. District Court for the Dis-

trict of New Jersey which is the case being br-

ought in front of this Court here.

As a continuation of NAEC's discrimination

and other unlawful acts, NAEC terminated my en-—

ployment in January 1991, at the age of 58, af-

ter about two years of an all out effort to gain

an upper hand to force mv to a total surrender.

They started creating extraordinary and unusual

4

circumstances for me which would make them ach-

ieve their goal. They harassed me DAILY, obstr-

ucted me from doing my work properly, obstructed

justice repeatedly, evaluated my performance to

suddenly become unsatisfactory, issued me lett-

ers of reprimand, made false accusations and

decreased my responsibilities. When this plan

failed to produce the result NAEC's management

hoped for, NAEC terminated my employment based

on fabricated reasons and ridiculous allegations.

Although the termination of my employment was a

major step for NAEC to reach its goal due to

the financial difficulties it created for me,

I still continued to search for justice. I star-

ted an action with the Merit Systems Protection

Board (MSPB) for the termination of my employ-

ment, continued with the discovery phase for 90-

3510 and followed up on the EEO complaints that

I had initiated and which were in various stages.

However, as I proceeded with all three legal

remedies, NAEC continued its pressure on me by

purposefully submitting superfluous motions to

the MSPB, requesting the imposition of Rule 11

sanctions against me in 90-3510 and utilizing

5

deceitful tactics and fabricating lies to inves-

tigators of the EEO complaints. Tne result of

all this strained my financial capabilities to

a point at which I could not afford to change

legal counsel to obtain sound and/or honest le-

gal assistance to continue with the legal action

on hand. After suspending my counsel's services

(as the record shows) for lack of confidence in

him, I had no choice but reinstate him to lead

me through the final formalities, with which

I was not familiar, of signing an unlawful se-

ttlement agreement.

The description given above is a brief summa

ry of the various actions taken by NAEC against

me, the tremendous pressure put on me DAILY for

about two years and the unlawful tactics utiliz-—

ed by NAEC to increase the cost cf litigation

for me un-necessarily and unlawfully. As a re-

sult of these extraordinary circumstances (Which

can be specifically cited and proven if and when

the case is opened for trial) and having no know?

ledge of legal matters at the time, I was not

able to proceed pro-se and I had no choice but

yield for a total surrender to sign an unlawful

out-of-court settlement agreement which is sub-

mitted here as Appendix F. This settlement ag-

reement is onesided, was not negotiable and con-

stituted an entrapment. [t entailed giving up

all my rights for nothing in return and I could

not even discuss its terms with my counsel.

Surprisingly to me, both the District Court

and the MSPB took the agreement at face value

(without considering the total injustice and one-

sidedness contained in it) and issued orders dis-

missing both litigations inspite of the fact that

both authorities knew of the disaccord between

my counsel and me. These orders are submitted

here as Appendices D and G.

Having lived through an intensive environment

of deceit, lies and fabrication of events by NAEC

for about two years culminating into an unjust

and unlawful agreement, I proceeded pro-se with-

out knowing the proper legal procedure. I called

the Office of the Clerk of the District Court.

and inquired about the procedure to file a civil

action. However, the staff member on the phone

informed me that the procedure is so complicated

that I needed an attorney. I, therefore, decided

to proceed informally. On May 28, 1991 within

the time limitations allowed by the orders, I

submitted, pro-se, an informal letter motion to

the Honorable Judge Garrett E. Brown,Jr. of the

|

|

District Court explaining the extraordinary cir-]

cumstances created by NAEC which forced me to i

sign the unlawful agreement mentioned above and

requested the case 90-3510 to be re-opened. I ;

also filed a civil action in the same District :

Court (91-2281) concerning the same issues that |

were before the MSPB. As I personally took these”

two informal documents to the District Court, :

I inquired if there was anything else that need:

to be done. I was told that concerning 90-3510, )

the court will do what is needed. However, for

91-2281, I was told that I will receive the su-

mmons in the mail which I should mail to the i

other party as well as instructions for any othe”

deficiencies. A short time later, I received onl.

the summons but no other instructions. 91-2281

was subsequently dismissed without prejudice

(which I did not understand what it means) on

January 21, 1992 as shown by the dismissal order

submitted here as Appendix H. It was refiled and”

is still in litigation stumbling in procedural

matters for more than three years. Concerning

;

8 ;

, al

my informal motion to reopen 90-3510, the Dis-

trict Court showed no interest in promoting jus-

tice. No action was taken except for the Honor-

able Judge Brown's letter to my former counsel

inquiring of the status of his association with

the case. As time went on waiting for an. action

from the District Court, I learned that a formal

motion might bring an action from the court.

Immediately, on December 29, 1992 I filed, pro-

se, a formal motion to reopen the case explain-

ing in detail the extraordinary circumstances

surrounding the signing of the agreement. As a

result, the U.S. Attorney (for the defendant)

submitted a memorandom in opposition and an affi-

davit by NAEC's counsel and I subsequently sub-

mitted a reply brief as well as an affidavit by

Arlene J. Elshinnawy. On May 24, 1993 I received

a“Report and Recommendation" issued May 19, 1993

of Magistrate John J. Hughes concerning the mo-

tion. This document, which is submitted here as

Appendix E, recommends denial of the motion to

reopen based mainly on whether or not I was rep-

resented by a counsel at the time the agreement

was signed. The document did not address the qu-

9

ality of representation (and the District carat

had ample ‘proof of the very poor quality of sucl)

representation and the bad relationship between

me and my counsel) or the real extraordinary anc

compelling reasons which made me sign the agree. |

ment. These extraordinary and compelling reason: ”

are described in the informal and formal motions§

to reopen the case. )

Within the time allowed by law, I submitted

my "Objections to the Magistrate's Report and

Recommendation" to the District Court. In this

document I brought out to the attention of the

District Court the shortcomings in every state-

ment made in the report on which the recommenda-

tion was based. These shorteceines can be simply

categorized as: (1) misunderstanding!of the

facts, (2) reliance on deceitful and untrue

statements!made by the defendant, (3) missing

‘This is absolutely true as evidenced by this

undeniable proof which is a statement written

in a brief submitted by the Assistant U.S.

Attorney to the Court of Appeals:

"The settlement agreement terminating

the MSPB case was followed with the

MSPB order finding the settlement volun-

tary and dismissing the case. There was

apparently no separate appeal to the

MSPB contesting the voluntariness of the

settlement and the Magistrate's recita-

n of this procedure appears to be in-

correct.”

10

the point by considering trivial aspects of the

issue (namely, mere representation by counsel)

rather than the true merit of the motion which

is under consideration (namely, the credibility

of the defendant and the various acts of discri-

mination and reprisal committed by the defendant

against me that compelled me, without consent,

to sign the agreement).

On June 3, 1993 the defendant responded to

my objections to the Magistrate's Report and Re-

commendation by a letter to the Honorable Judge

Garrett E. Brown, Jr. Since the letter response

reflected a continuation of the defendant's de-

ceitful practices against me for many years, I

found it necessary to draw the District Court's

attention, again, to the deceit contained in the

letter response. I submitted to the District

Court, in a timely fashion, a rebuttal to the

letter response. The District Court, then, issued

its order, submitted here as Appendix C, on June

21, 1993 not to reopen the case. The over-riding

objectives of the order is to end the litigation

which has been stumbling in the system for about

two and a half years due to technicalities and

ll

a

deceitful statements by the defendant but never

attempted to find the truth and promote justice.

The order, as it states, is based on the Magis-

trate's Report and Recommendation, my objections

;

to the Report and Recommendation and the defen-

dant's letter response but not my rebuttal to

such a response.

In a timely fashion I filed an appeal, of

the District Court's Order, to the U.S. Court

of Appeals for the Third Circuit. This action

required the District Court to transfer the re-

cord of the case to the Court of Appeals. How-

ever, as I examined the record transferred, I

found that two important documents were missing

namely (1) the defendant's letter response men-

tioned above and (2) my rebuttal to the de‘“en-

dant's letter response. These two documents pro-

vide further proof of the defendant's persistent

deceit and misleading statements as well as my

rebuttal, supported by proof, of the defendant's

unethical behavior. Accordingly, on August 19,

1993 I submitted a motion to the District Court

to expand the record to include the two documenté

However, on November 12, 1993 the District Court

12

issued an order denying my motion. This order,

which is submitted here as Appendix I, shows that

the denial was based on General Rule 12(C) of the'

General Rules of the District Court. The text of

General Rule 12(C) is submitted here as Appendix

J.

REASONS FOR GRANTING THE WRIT

I am a layman in the law but since I started

handling my litigation against the Navy, three

years ago, I have been gaining some legal know-

ledge. In the process, whatever I have read I

find that the"INTEREST OF JUSTICE" is stressed

and is paramount. The judgement made by the court

system so far (District Court and Court of Appe-

als) indicates otherwise since: (1) The District

Court abused its discretion and the Court of

Appeals condoned it. (2) The District Court vio-

lated the expediency imposed by 42 U.S.C.S.

§2000e-5(f)(2) and 42 U.S.C.S. £2000e-5(f£) (5)

and the Court of Appeals condoned it. (3) The

District Court did not apply Rule 60(b)2properly

and the Court of Appeals condoned it.

“The text of Rule 60 of Fed. R. Civ. P. is

submitted here as Appendix K

13

$2865 of Rule 60 states:

"The rule says that the court

is to act "on motion" and this is

the usual procedure. However, the

court has power to act in the inte-

rest of justice in an unusual case

in which its attention has been di-

rected to the necessity for relief

by means other than motion."

x

3

3

fs

/

Pt ag ee? eae

Before 60 days after the District Court iss-

ued its order (submitted as Appendix D) to dis-

miss the case, on May 28, 1991, I submitted an

informal letter motion to the Honorable Judge

Garrett E. Brown, Jr. informing him of the un-

lawful practices and the great injustice commit-

ted by NAEC to produce the agreement. I reque-

sted that the court reopen the case. However,

no action was taken by the District Court till

I submitted a formal motion on 12/29/92 i.e.

more than 19 months later. Here is this case in

which a highly qualified professional was dis-

criminated against for ten years, harassed and

subjected to tremendous pressure tactics for a

long period of time and finally my career was

terminated and ruined suddenly. With these un-

usual and bold events the District Court abused

its discretion by ignoring the interest of Jus-

tice which empowers the court to take action

14

based on any informal motion as is stated above

in § 2865 of Rule 60. Moreover, this case should

not have reached this stage of litigation, drag-

ged over a long period of time, had the District

Court refrained from abusing its discretion. The

District Court is the proper place for out-of-

court settlements to be reviewed, to ascertain

that fairness, lawfulness and promotion of jus-

tice are achieved in any agreement, before it is

acted upon by the court. Again, the District

Court abused its discretion. The agreement is

onesided and was not negotiable. NAEC gained to-

tal victory inspite of its bold unlawful acts

and I lost everything simply because I sought

in a totally unjust situation. However, the Dis-

trict Court ignored the interest of justice.

The law stresses the urgency and require the

courts to act expeditiously on litigation under

Title VII. 42 U.S.C.S.§2000e-5(f)(2) states:

"It shall be the duty of a court

having jurisdiction over proceedings

under this section to assign cases for

hearing at the earliest practicable

date and to cause such cases to be in

every way expedited."

and 42 U.S.C.S.§2000e-5(f)(5) states:

"It shall be the duty of the judge

designated pursuant to this subsection

to assign the case for hearing at the

earliest practicable date and to cause

the case to be in every way expedited.

If such judge has not scheduled the case

for trial within one hundred and twenty

days after issue has been joined, that

judge may appoint a master pursuant to

rule 53 of the Federal Rules of Civil

Procedure."

ee ee ae ee a

Clearly, the District Court failed to comply

with the expediency requirements of Title VII

litigation. I submitted my informal motion to

reopen the case on 5/28/91. The court waited

till I submitted the formal motion on 12/29/92

and the Magistrate's Report and Recommendation

was issued on 5/19/93.

Obtaining a relief from a judgement is go-

verned solely by Rule 60. The main theme behind

the creation of Rule 60 is the interest of jus-

tice. The interest of justice is so paramount

to the law makers that the rule was modified,

some time ago, by adding Clause (6) which enab-

les litigants to obtain relief even under the

stringent legal requirement of time limitations. |

Following are excerpts from Rule 60 applicable |

to this case.

l- §2857 of Rule 60 states:

"The cases calling for great libe- ;

16

3-

rality in granting Rule 60(b) motions,

for the most part, have involved defau-

lt judgements. There is much more rea-

son for liberality in reopening a jud-

gement when the m of the ca ne-

ver have been considered than there is

when the judgement comes after a full

trial on the merits."

§2864 of Rule 60 states:

"The rule has significance in two

different ways. Clearly it broadens

the grounds for relief from a judge-

ment set out in the five preceding

Clauses. It gives the courts ample

ve Vv d wv ever

power to vacate judgements whenever

that action is appropriate to accon-

plish justice.”

$2864 also states:

Regardless of when the motion is

made, it is addressed to the discretion

of the district court. In general, re-

o Vv nd 4

n which th dc

whose favor it was rendered or the jud-

gement resulted from the excusable de-

fault of the party against whom it was

directed under circumstances going

beyond the earlier clauses of the rule.

T our h ders whether relief

under - urther ju &

without affecting substantial rights of

the pa es.”

$2864 also states:

"There has not been much difficulty

in constuing or applying the rule in

cases in which the motion is made with-

in a year in judgement. In those cases

it is not important to decide whether

the motion in fact comes under clause

(6) or under one of the earlier clauses.

These prompt motions for relief are

17

granted if the court thinks that jus-

tice requires it and denied if the

court feels otherwise."

5- $2864 continues to state:

"A quite typical kind of case is

that in which a party comes in more

than a year after judgement to assert

that he is the victim of some blunder

by his counsel. Claims of this kind

seem to fit readily enough within such

grounds as mistake, inadvertence, and

excuseable neglect, all stated in clau-

se (1), and courts frequently have so

reasoned and held that clause (6) was

in-applicable. But if the court is

persuaded that the interest of justice

so require, it is likely to find aggra-

vating circumstances sufficient to

permit to say that the case is properly

within clause (6)."

6- The Magistrate's Report and Recommendation

discusses my legal representation and the court

was satisfied by the fact that I had a legal coun

sel for two days before the agreement was signed

inspite of the fact that my counsel was not pre-

sent during the signing of the agreement. I drew

the court's attention to the quality of represe-

ntation which obviously from paragraph (5) above, —

1 Nett tale « seo cere staab nae

vt te ap. 8

a

gives reasons for relief from the judgement. Lack ©

of quality of representation is stressed in my

informal and formal motions to reopen as well as

in my Objections to the Magistrate's Report and

Recommendation. However, the court ignored the

18

issue.

7- From paragraph (1) above, Rule 60 also

allows liberal consideration, even for default,

by granting relief when the merits of the case

never have been considered which is the case he-

re. However, the District Court failed to promote

justice again and applied Rule 60 improperly.

8- The District Court did not apply Rule 60

properly when it ignored its power to vacate the

judgement to accomplish justice, as stated in

paragraphs (2),(3) and (4) above, knowing that

total injustice was committed by NAEC in every

step that led to this litigation including the

agreement.

9- The District Court had no interest in pro-

moting justice. As a result of my motion to re-

open this case, two sets of documents were sub-

mitted to the court in response to the motion.

One set was submitted by me containing all factual

statements supported with proofs and the other

set was submitted by the defendant and contains

deceitful statements, misrepresentations, and

untruthful statements i.e. the two sets contained

directly opposite statements concerning important

19

———

issues such as the assent to the terms of the

agreement, the voluntariness to sign the agree-

ment, the number of proposals submitted and con-

sidered before the final agreement was signed

and an appeal to the MSPB contesting the eeiua- |

tariness of signing the agreement. Some of the

documents in either set were sworn documents and

others were not. Inspite of this, the Magistrate

Report and Recommendation made definite conclu-

ding statements concerning these issues that 1i-

ned up in favor of the defendant. These conclu-

ding statements in the Magistrate's Report and

Recommendation were made based on the contradic-

ting statements available in the documents with-

out any further action by the court such as con-

ducting a hearing or any other investigative

tool to determine the truth.

10- The District Court also failed to pro-

mote justice when it denied my motion to expand

the record to add two documents which were sub-

mitted to the court as a result of my motion to

reopen this case. These two documents are des-

cribed in enough detail in the "Statement of the

Case" section of this petition. One of these doc

20

uments was referred to in the order that was

being appealed to the U.S. Court of Appeals, yet,

the District Court refused to make these docu-

ments available to the reviewing court. The cou-

rt's denial of my motion was based on General

Rule 12(C) of the General Rules of the District

Court. However, the same General Rules state in

Rule 1(A) the following:

"The following General and Admiralty

Rules supplement the Federal Rules of

Civil Procedure, the Federal Rules of

Criminal Procedure and the Supplemen-

tal Rules of Practice for certain Ad-

miralty and Maritime Claims, and are

applicable in all proceedings when not

inconsistent therewith. They shall be

considered as rules for the government

of the Court and conduct of causes,

and shall be construed to secure a just:

determination, simplicity in procedure,

fairness in administration ant the eli-

mination of unjustfiable expense and

delay. Unless otherwise stated, any

rule may be relaxed or dispensed with

by the Court if adherence will result

in surprise or injustice."

Obviously, the District Court never saw any in-

justice in refusing to include two important

documents in the record so that they would be

available to the reviewing court. In the same

manner, the District Court never saw any injus-

tice to always rule in favor of the defendant in

a case that nothing of its merits (including the

21

agreement ) has been tried hence, not any of the

facts is known to the court after more than three

and a half years of litigation.

ll- The District Court displayed the same

concern for justice dealing with the related casel

91-2281 as that which I explained in this case.

The complaint for 91-2281 was filed in the Office

of the Clerk for the District Court on May 28,

1991. The court kept silent till the U.S. Attor- |

ney (for the defendant) filed a motion to dismiss.

the case, for failure to serve the process proper

ly» on 12/27/1991 and the court granted the dis-

missal by order dated 1/21/1992 i.e. the court

kept silent for 7 months inspite of the urgency

dictated by law for discrimination cases.

Another perfect proof of how legal proceedin

take place in the U.S. District Court for the Di

trict of New Jersey as well as in the U.S. Attor-

ney's Office for the District of New Jersey is

the following summary of events. As a result of

appealing the District Court's ruling for 90-351

the Court of Appeals issued its order on February

17, 1994, shown as Appendix A, which shows on

page 2:

22

"Costs taxed in favor of appellee,

Secretary of the Navy as follows:

Totes Coste . « « « §$ 101.80°

This order was based on the Assistant U.S. Attor-

ney's submission, included here as Appendix L,

to the U.S. Court of Appeals on February 23,

1994. Nevertheless, on March 30, 1994 the Assis-

tant U.S. Attorney sent me a Letter, Appendix M,

asking me to pay $ 108.00. On March 31, 1994 the

District Court notifies the Assistant U.S. Attor-

ney of the costs in the amount of $ 101.80 (Appe-

ndix N). On April 26, 1994 the District Court

issues an order for the costs in the amount of

$ 104.80 (Appendix 0) and onApril 28, 1994, the

Assistant U.S. Attorney sent me a letter with a

copy of the District Court's order to pay $ 104.80

(Appendix P). This incident is typical of how

the proceedings have been for both of my litiga-

tions in the District Court and the U.S. Attor-

ney's Office for the last three and a half years.

Surprisingly, though, the United States Court

of Appeals affirmed the District Court's actions

without explanation. In fact, my presentation

of the case to the Court of Appeais seems to have

caused dismay in the court to the extend that

23

it taxed costs against me inspite of all the

injustice committed against me and the fact tha’

I have been unemployed for about three and a

half years since my employment was terminated

by NAEC at the age of 58.

PON ee ee

For all these reasons, it is obvious that

the justice system failed to produce justice in

a situation when I totally trusted it to give

me relief from ten years of unlawful discrimi- —

nation and other civil rights violations.

My petétion to this legal institution is my

last resort to seek justice. Accordingly, I :

respectfully request and hope to obtain a eg

in thisCourt by supporting my effort to have a 1

fair day in court at which time I will be able |

to tell my story as it happened. :

24

CONCLUSION

For the reasons set forth above, a writ of

certiorari should issue to affect the judgeme-

nts rendered by the lower courts in this case

to be just and responsive to the gravity of

the situation.

Respectfully submitted,

Man

A. M. Elshinnawy

Petitioner, Pro-se

397 Stratford Avenue

Collegeville, PA 19426 y

Phone: (610)489-3605

Dated: June 20, 1994

25

APPENDIX A

UNITED STATES COURT OF APPEALS

: FOR THE THIRD CIRCUIT

No. 93-5434

ABDELFATTAH M. ELSHINNAWY

Appellant

Ve

H. LAWRENCE GARRETT, III,

SECRETARY, DEPARTMENT OF THE NAVY

Appeal from the United States District Court

for the District of New Jersey

District Judge: Honorable Garrett E. Brown, Jr. —

Submitted Under Third Circuit LAR 34.1(a)

February 11, 1994

Before: MANSMANN, GREENBERG and NYGAARD, Circuit

Judges ~

JUDGEMENT ORDER

After consideration of all contentions

raised by the appellant, it is

ADJUDGED AND ORDERED that the judgement of

the district court be and is hereby affirmed.

Costs taxed against the appellant.

BY THE COURT,

Peer oe

_Carol Los Mansmann

Circuit Judge

Attest:

P. Douglas Sisk

P. Douglas Sisk, Clerk Al

Dated: Feb. 17, 1994.

No. 93-5434

Page 2

Costs taxed in favor of Appellee, Secretary of

the Navy as Follows:

Totel Coste ..-«e « $101.80

Certified as a true copy and issued in lieu

of a formal mandate on March 25, 1994.

Teste:

Chief Deputy Clerk, U.S. Court of Appeals for

the Third Circuit.

A2

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 93-5434

ABDELFATTAH M. ELSHINNAWY

Appellant

vs.

H. LAWRENCE GARRETT, III,

SECRETARY, DEPARTMENT OF THE NAVY

SUR PETITION FOR REHEARING

Present: SLOVITER, Chief Judge,

BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINS

SCIRICA, COWEN, NYGAARD, ALITO, ROTH and LEWIS,

Circuit Judges.

The petition for rehearing filed by appe

llant in the above entitled case having been sub

mitted to the judges who participated in the dec

sion of this court and to all other available ci

cuit judges of the circuit in regular active ser

vice, and no judge who concurred in the decision

having asked for rehearing, and a majority of th

circuit judges of the circuit in regular active

service not having voted for rehearing by the

court in banc, the petition for rehearing is den

BY THE COURT,

Carol Los Mansmann

Circuit Judge

A3 .

March 17, 1994

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ABDELFATTAH M. ELSHINNAWY,

Plaintiff, : Civ. No. 90~-3510(GEB)

We :

H. LAWRENCE GARRETT,III, : ORDER

SECRETARY, DEPT..OF THE NAVY : (Entered on the docket

: 6/22/93)

Defendant

This matter having come before the Court on

plaintiff's motion to reopen the above-captioned

action pursuant to Fed.R.Civ.P.60(b)(1); and the

matter having been referred to United States Magi-

strate Judge John J. Hughes pursuant to 28 U.S.C.

636(b)(1){(B) for a Report and Recommendation;

and this Court having reviewed the Report and Re-

commendation issued by Judge Hughes dated May 14,

1993, the record upon which said Report and Recom-

mendation is based, the objections to the Report

and Recommendation raised by plaintiff, and defen-

dant's response thereto; and this matter being

decided pursuant to Fed.R.Civ.P.78; and it appea-

ring that good cause has been shown;

It is this 2lst day of June, 1993,

Ordered that Magistrate Judge Hughes' May 14,

Ad

1993 Report and Recommendation be and is hereby

ADOPTED as an Order of this Court. !

GARRETT E. BROWN,JR., SD.

(Filed June 22, 1993 :

APPENDIX D

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ABDELFATTAH M. ELSHINNAWY,

Plaintiff :

vs. :

H. LAWRENCE GARRETT, III, : Civil Action No.

90-3510(GEB)

It appearing that it has been reported to the

Court that the above action has been settled:

It is, on this 4th day of April, 1991,

ORDERED that this action is hereby dismissed

without costs and without prejudice to the right,

upon good cause shown within 60 days, to reopen

the action if the settlement is not consummated.

GARRETT E. BROWN, JR.,

U.S.D.J.

(Entered on the docket 4/9/91)

(Original filed Apr 08, 1991)

A6

APPENDIX E

NOT FOR PUBLICATION |

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ABDELFATTAH M. ELSHINNAWY Civil Action No.

90-3510(GEB)

Plaintiff,

REPORT AND

RECOMMENDATION

H. LAWRENCE GARRETT,ilII, (Entered on the do-

Secretary,Department of Navy: cket 5/20/93)

Ve

re

Defendant.: (Filed May 19, 1993)

HUGHES, Magistrate Judge

This matter comes before the Court on Plain-

tiff Pro se's motion for an order to reopen this

case after execution of a settlement agreement.!

Defendant opposes the motion. For the following

reasons, this Court recommends that Plaintiff's

motion to re-open this case be denied.

BACKGROUND

The underlying dispute involves a complaint

filed by plaintiff alleging discrimination based

on age under the Age Discrimination in Employment

Act of 1967, 29U.S.C. 633a (a)-(c), and discrimi-

nation based on national origin and color under

Title VII of the Civil Rights Act of 1964, 42 U. |

*Plaintiff is acting pro se on the current

motion to re-open the case, but was represented

by counsel during the settlement negotiations.

A7

S.C. 2000e-5(f)-(k) and 2000e-16 (a)-(e). Plain-

tiff, a former mechanical engineer in the Depar-

tment of Navy, alleges that he was continually

passed over for promotions to positions for which

he was the most qualified candidate. Plaintiff

filed complaints through the Navy's administrative

process seeking retroactive promotions with back

pay and benefits. Thereafter, in January 1991,

Plaintiff alleges that he was terminated from his

engineering position for not being a "team player".

(Plaintiff's Brief at p. 4)

Plaintiff appealed the dismissal to the Merit

Systems Protection Board ("MSPB") and filed an

action in this Court. Prior to the MSPB hearing,

Plaintiff and Defendant entered into a settle-

ment agreement, signed on March 22, 1991, which

included Plaintiff's agreement to resign from

his engineering position (as opposed to being

terminated) and the voluntary dismissal of this

action.

Plaintiff later sought to invalidate the se-

ttlement agreement. However, the MSPB found that

the settlement was voluntary and denied Plain-

tiff's request. Plaintiff then filed a new com-

A8

plaint (Civil Action No. 91-2281), alleging that |

the settlement of this case was made in error.

This complaint was dismissed, pursuant to Fed. R.|

Civ. P. 4, for failure to effect service within

120 days. Plaintiff appealed the dismissal deci- |

sion of the District Court, and the Court of

Appeals for the Third Circuit affirmed the dis-

missal.

In the current motion, Plaintiff seeks to hav

his original case (Civil Action No. 90-3510 (GEB)

re-opened based on the contention that the settle

ment agreement was one-sided and entered into un-§

der duress. (Plaintiff's Reply Brief p.2). Plain-—

tiff alleges that extraordinary and compelling

circumstances, orchestrated by the Naval Air Engi:

neerin Center, forced him to sign the settlement

agreement. (Plaintiff's Reply Brief p.2). Plain-

tiff further states that the extraordinary and

compelling circumstances was that, due to economi:

hardship brought on by his termination, he was un-

able to be adequately represented by counsel for

his litigation and, therefore,he signed the settlé

ment agreement. (Plaintiff's Reply Brief p.3).

Defendant opposes the motion and asserts that

A9

Plaintiff entered into a valid settlement agree-

ment. Defendant further asserts that Plaintiff

cannot claim mistake, as he entered into the

agreement with the advice of counsel. Defendant

also assert that since Plaintiff filed a second

lawsuit to challenge the validity of the settle-

ment agreement, which was dismissed by the Dis-

trict Court and affirmed by the Court of Appeals

for the Third Circuit, Plaintiff cannot demon-

strate any extraordinary circumstances which

would allow for this Court to grant the requested

relief, pursuant to Federal Rule 60(b). In addi-

tion, Defendant argues that re-opening this case

2

would be futile.

DISCUSSION

Rule 60(b) allows a party to be relieved of

a final judgement if there have been extraordina-

ry circumstances manifesting: mistake; inadver-

tence; surprise; or excusable neglect. See Fed.

R. Civ. P. 60(b). In order to ascertain whether

Plaintiff's claim meets one of these requirements,

This Court will not address the merits of

Plaintiff's case in the underlying action, but

will only decide the issue of whether to reopen

the case after the parties have entered into a

settlement agreement.

Al0

we must look to the circumstances surrounding

the execution of the settlement agreement.

Settlement agreements are contracual in na-

ture. See Jeff D. v. Andrus,888 F.2d 617, 623

(9th Cir. 1989), opinion replaced 899 F.2d 753,

759 (9th Cir. 1989); Janneh v. Gaf Corp., 887

F.2d 432,436 (2nd Cir 1989), cert. denied, 498

U.S. 865 (1990); Schneider v. Dumbarton Develo- —

pers, Inc., 767 F.2d 1007, 1016 (D.C. Cir. 1985),

See also Nolan v. Lee Ho, 120 N.J. 465 (1990).

As such, settlement agreements are subject to

the rules of contract formation and interpreta-

_ tion. "A contract is formed where the essential

terms of an agreement have been communicated

between the parties and there has been mutual

assent to those terms." Airmaster Sales Co. v. ~

North Bridge Park Corp, Inc., 748 F.Supp 1110, |

at a "meeting of the minds" as to all essential

terms of the contract. Doyle v. Northrup Corp.,

1114 (D.N.J. 1990). Thus, the parties must arrind

|

455 F.Supp 1318, 1334 (D.N.J. 1978). "A meeting ©

of the mind occurs when there has been a common |

:

understanding and mutual assent of all the terms.

of a contract". Knight v. New England Mutual

All

Life Insurance Co., 220 N.J. 560, 565 (App. Div.

1987), cert. denied, 110 N.J. 184 (1988).

Consequently, absent any unusual circumstan-

ces, this Court should enforce executory agree-

ments to settle litigation. See Hagrish v. Olson,

254 N.J. Super. 133, 137 (1992); Jannarone v. W.

T. Co., 65 N.J. Super. 472, 476-77 (App. Div.),

cert. denied, 35 N.J. 61 (1961).

"So long as the basic essentials are suffi-

ciently definite, any gap left by the parties

should not frustrate their intention to be bound."

Id., quoting, Berg Agency v. Sleep World- Willing-

boro, Inc., 136 N.J. Super. 369, 377 (App. Div.

1975). The court also found that it is the parties

objective intent which governs a settlement con-

tract. "A contracting party is bound by the appa-

rent intention he or she outwardly manifests tc

the other party. It is immaterial that he or she

has a different, secret intention from that out-

wardly manifested." Hagrish, supra; Looman Realty

Corp. v. Broad Street National Bank of Trenton,

74 N.J. Super. 71, 82 (App. Div.), cert. denied,

37 N.J. 520 (1962).

There is some disagreement over what role

Al2

Plaintiff's counsel had in this case. Plaintiff

asserts that 5 weeks prior to the settlement

agreement, Mr. Kastner, Plaintiff's counsel,

sent a letter to Defendant's counsel, Ms. Trafta

informing her that he no longer represented Plaij

tiff. Nevertheless, the Court is only eundéenes |

with counsel's involvement in the settlement

process, as it is this agreement that Plaintiff.

seeks to invalidate.

Mr. Kastner did continue to advise Plaintiff

for purposes of the oubictammiais agreement. This

is evidenced by Plaintiff's submission of a copy

of an invoice from Mr. Kastner's law firm, which

details billing for legal services provided to

Plaintiff between March 19, 1991 and March 22,

1991, regarding the settlement agreement. (Plain

tiff's Reply Brief Ex. 7). Therefore, Plaintiff

did receive the benefit of counsel prior to exec

uting the settlement agreement.

The sole issue before this Court is whether

the settlement agreement, in which Plaintiff

agreed to dismiss this complaint, should be in-

validated. This Court is mindful that it should

enforce agreements to settle, absent any unusual

Al3

circumstance. See Hagrish,254 N.J. Super at 137.

It is clear that there were ongoing settlement

discussions for a period of time prior to the

actual execution of the agreement. Although the

parties disagree over the exact number of drafts

of the agreement, it is certain that there were

at least two preliminary proposals of the agree-

ment. Plaintiff reviewed these agreements with

his attorney. Plaintiff also spent 20 to 30

minutes reviewing the final draft, before signing

the agreement. (Trafton Aff. n. 9).

Based on all these factors, including the

benefit of counsel's advice and various opportu-

nities to review the essential terms of the agree-

ment, this Court must conclude that all terms of

the settlement were communicated to Plaintiff

and that there had, in fact, been mutual assent.

The Court finds that Plaintiff voluntarily

entered into this settlement agreement after care-

ful consideration, and now, based on hindsight,

regrets this decision. However unfortunate this

situation may be for Plaintiff, it provides no

legal justification for re-opening this case.

In view of the foregoing, it is recommended

Al4

that the motion to re-open this case be denied.

The Clerk of the Court is directed to mail |

a copy of this report and recommendation to the

parties by regular and certified mail, return

receipt requested. )

General Rule 40(D)(5) requires that any objei

tion to this Report and Recommendation be filed

within 10 days after being served with a copy

thereof.

Respectfully submitted,

JOHN J. HUGHES

United States Magistrate

Judge

Dated: May 14, 1993

Al5

APPENDIX F

SETTLEMENT AGREEMENT

It is agreed by the Naval Air Engineering Center,

Lakehurst, NJ, herein called the Agency, and

Abdelfattah M. Elshinnawy, herein called the

Appellant, that the following constitutes full

and complete settlement of the Merit Systems Pro-

tection Board (MSPB) appeal filed by the Appellant

in MSPB Case PH64329110352.

1. Appellant will submit, and the Agency will acc-

ept, his voluntary resignation from the Agency

effective close of business, January 17, 1991,

included as Attachment 1. The Appellant will be

placed in a leave without pay status for the period

from January 4, 1991 until the effective date of

the Appellant's voluntary resignation, January 17,

1991. All official documents will be corrected to

reflect that Appellant's last day of employment

was January 17, 1991. The Appellant is being pla-

ced in a leave without pay status at his request

as the Appellant believes that being placed on the

Agency's rolls entitling him to the 12.1% pay in-

crease effective January 13, 1991, will impact on

his high three average salary for purposes of re-

Al6

tirement. The Agency specifically indicated to t

Appellant that the Agency believes that the effe

of any pay increase on his high three average sa

lary for purposes of retirement would be minuscu

2. The Agency will expunge and segregate from th

Appellant's Official Personnel File all document

tion relating to the removal action under appeal.

In addition, the Agency will remove from the Appeé

lant's Official Personnel File the Letter of need

mand to the Appellant dated July 19, 1990. The A

llant reserves the right to apply for positions

within the Department of the Navy. In the event

the Agency is contacted as a reference by an acti

vity within the Department of the Navy, the bined

has the right to speek freely and without reserva

tion. The Agency agrees that any inquiries to ma-

nagement from prospective employers other than an

activity within the Department of the Navy will

be referred to a designated individual other thas}

the Appellant's former supervisor. The response tf

those inquiries will include, to the extent feasil

ble, only the information that appears in the

letter included as Attachment 2. It is undekutood

that the designated official is not expected to

Al7

provide any informationregarding the Appellant

that is not truthful.

3. The Appellant agrees to withdraw with preju-

dice his MSPB appeal, his appeal to the U.S. Dis-

trick Court, District of New Jersey, Civil Action

No. 90-3510, his EEO complaints, (case numbers

listed below) any and all other grievances, ar-

bitrations, appeals, unfair labor practice char-

ges, EEO claims, and administrative or judicial

matters currently pending. The Appellant agrees

to execute Attachments 3,4, and 5 and any other

necessary documentation not provided as an atta-

chment to this Agreement to effectuate the with-

drawal of the previous delineated matters. The

Appellant understands that by dismissing these

matters with prejudice he will be forever barred

from raising these matters.

Department of Navy (DON) No.

91-68335-011 89-68335-026

006 025

004 024

90-68335-024 022

023 019

019 016

016 015

014 013

012 010

011 006

009 001

008 88-68335-009

A18

90-68335-001 88-68335-004

§9~-68335-028 §7-68335-010

027 86-68335-002

4. Except as explicitly provided in paragraphs 5

and 6 of this Agreement, the Appellant further

agrees not to institute any legal or administra-

tive proceeding, including a claim for an occupa-

tional illness/disease or traumatic injury with

the US Department of Labor under the federal Em-

ployees compensation Act, on issues already rais

or that could have been raised prior to the date

of this Agreement arising out of or in connection

with his employment with the Agency. The Appellan'

understands that by waiving his right to file a

workmans' compensation claim he is forfeiting a

potential entitlement to all benefits under the |

Federal Employees Compensation Act, which could

include, upon successful adjudication of a claim,

the Appellant receiving compensation benefits for

being totally disabled at the rate of 75% of App-

ellant's salary.

5. The Appellant reserves the right to file an

application for disability retirement with the

Office of Personnel Management. The Appellant ex-

pressly agrees that he will not indicate that the

Al9

Agency in any manner caused, and/or aggravated

any physical or mental condition which he uses

as a basis for his disability retirement appli-

cation. It is expressly agreed that the Agency

will provide Attachment 6, with enclosures, to

the Office of Personnel Management as the Super-

visor's Statement in connection with Disability

Retirement. In the event the Agency is contacted

by the Office of Personnel Management for addi-

tional information and/or clarification, the

Agency agrees not to controvert the Appellant's

disability retirement application. In regard to

the Agency Certification of Reassignment and

Accomodation Efforts, the Agency expressly agrees

to provide only the information indicatedon Atta-

chment 7. In the event that additional informa-

tion is requested by the Office of Personnel

Management, the Agency agrees not to provide info-

rmation to controvert the Appellant's disability

retirement application.

6. The Appellant understands that there is no

guarantee that he will be entitled to disability

retirement. The Appellant understands that he has

the burden to prove entitlement to any disability

A20

retirement. As the Office of Personnel Managemen

is the activity which has adjudication authority |

for disability retirement, the Appellant understa

nds that this Agency will not and cannot indicate

the outcome of any disability retirement applica-

tion the Appellant may file. The Appellant furthe

understands that his dismissal of all litigation

pending is not contingent on the approval of his

disability retirement.

7. The Appellant agrees that he is responsible i

for his own counsel fees and all costs he has |

incurred in this appeal and any and all other

matters arising from his employment with the Agen}

cy. He and his attorney waive any right to seek

any fees or costs from the Agency.

8. The Appellant expressly agrees that under no

circumstances will he return as an employee to

‘ert

this Agency currently designated as the Naval Air

Engineering Center, Lakehurst, NJ. In the event

of Department of Defense reorganization, base

consolidation, base closures, or any other poten-

tial scenario for which the Appellant may have a

right to employment at any activity located geo-/|

graphically at the same location as the Naval Ai

A21

Engineering Center, this Agreement constitutes

the Appellant's waiver of any employment rights.

This Agency or any other agency geographically

located at the same location as the Naval Air

Engineering Center will not be required to con-

tact the Appellant for acknowledgement of this

waiver.

9. The Agency agrees that the Appellant's rating

of record for 1989 will be the last rating of

record in his Official Personnel File.

10. The Agency with the express agreement of the

US Attorney's Office, District of New Jersey,

waive its rights to pursue Rule 11 sanctions in

Civil Action 90-3510 in the US District Court,

District of New Jersey.

ll. All parties agree that this Agreement does

not constitute an admission by the Agency of any

violation of Title VII of the Civil Rights Act

of 1964, as amended, or any other federal or

state statute or regulation.

12. The terms of this Agreement will not estab-

lish any precedent, nor will the Agreement be

used by the Appellant to seek or justify similar

terms in any subsequent case.

A22

13. This Agreement constitutes the complete under

standing of the parties. No other promises or

agreements will be binding unless placed in wri-

ting and signed by both parties.

14. The Appellant ackuowleéaes that he understand§

all of the provisions of this Agreement and that

he enters it voluntarily, without coercion and

with the advice of counsel.

15. The Appellant acknowledges that he understand!

and is satisfied with the advise of his counsel

and that his counsel has fully and completely

explained all of the terms of this Agreement.

16. This Agreement will be entered inte the re-

cord of the Merit Systems Protection Board Case

No. PHO04329110352, and the Merit Systems Protec-

tion Board will maintain jurisdiction.

17. The Appellant will have the right to inspect

his Official Personnel File within 45 calendar

days after the signing of the Agreement to deter-

mine that the Agency has complied with this Agree-

ment.

3/22/91 26 MAR 91

A. M. ELSHINNAWY Date D.J. RAFFETTO,CAPT, Dat

Appellant USN Commanding Officer

Naval Air Engineering C

3/22/91 22 Mar. 9

MITCHELL KASTNER,Esq. Date Rose Trafton,Esq. Da

Counsel for Appellant A23 Counsel for Agency

APPENDIX G

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PHILADELPHIA REGIONAL OFFICE

DOCKET NUMBER

PH04329110352

ABDELFATTAH ELSHINNAWY,

Appellant,

Ve

DEPARTMENT OF THE NAVY, DATE: March 29, 1991

Agency.

Pine eee eee ee ee eee ee

)

Mitchell Kastner, Esquire, Philadelphia, Penn-

sylvania, for the Appellant.

Rose Trafton,Esquire, Lakehurst, New Jersey,

for the Agency.

BEFORE

Sandra J. Squire

Administrative Judge

INITIAL DECISION

INTRODUCTION

This is an appeal from a removal action. Abd-

fattah Elshinnawy was removed from the position

of Mechanical Engineer, GS-12. Dr. Elshinnawy

worked for the Department of Navy, Naval Air

Engineering Center in New Jersey. The appellant

requested a hearing but subsequently withdrew

that request. The Board has jurisdiction over

this appeal by virtue of 5 U.S.C.44303(e) and

5 C.F.R.$432.206(a).

A24

For the reasons set forth below, the appeal is

DISMISSED.

ANALYSIS AND FINDINGS

The parties entered into a settlement agree-

ment which has been placed into the record. As

part of the agreement, the appellant withdrew his

appeal with the Board. I have reviewed the terms

of the settlement agreement and find it lawful

and voluntarily entered into. The record reveals

that the parties understand the terms of the ses

ttlement agreement and that they desire to make

4

the settlement agreement enforceable by the Board

Burton v. Department of Health and Human Service,|

4

45 M.S.P.R. 37(1990). Settlement agreements which

are formally entered into the record may later be}

enforced by the Board. Richardson v. Environmenta

Protection Agency, 5 M.S.P.R. 248(1981), modified)

Shaw v. Department of the Navy, 39 M.S.P.R. 586

(1989), and Hopson v. Defense Logistics Agency,

5 M.S.P.R. 247 (1981).

Since the appeal has been withdrawn pursuant t

a settlement agreement, this matter is dismissed |

from further consideration. See McCuller v. Depar

tment of the Interior, 18 M.S.P.R. 665(1984);

A25

Codrington v. Department of Justice, 1 M.S.P.R.

333 (1980).

DECISION

This appeal is DISMISSED.

FOR THE BOARD

Sandra J. Squire

Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on

May 03, 1991 unless a petition for review is

filed by that date or the Board reopens the case

on its own motion. This is an important date be-

cause it is the last day on which you can file

a petition for review with the Board. The date

on which the initial decision becomes final also

controls when you can file a petition for review

with the Court of Appeals for the Federal Circuit.

The paragraphs that follow tell you how and when

to file with the Board or the federal court.

These instructions are important because if you

wish to file a petition, you must file it within

the proper time period.

BOARD REVIEW

You may request Board review of this initial

A26

decision by filing a petition for review if you

believe that the settlement agreement is unlawfw

was involuntary, or was the result of fraud or ,

mutual mistake. Your prtition, with supporting |

evidence and argument, must be filed with:

The Clerk of the Board

Merit Systems Protection Board

1120 Vermont Avenue, NW., Suite 802

Washington, DC 2041S

Your petition must be postmarked or hand-deliv-

ered no later than the date this initial decisi¢

becomes final. If you fail to provide a statemeq

with your petition that you have either mailed

or hand-delivered a copy of your petition to the

agency, your petition will be rejected and re-

turned to you.

JUDICIAL REVIEW

If you are dissatisfied with the Board's fina

decision, you may file a petition with:

The United States Court of Appeals

for the Federal Circuit

717 Madison Place, NW.

Washington, DC 20439

You may not file your petition with the court

before this decision becomes final. To be timely

your petition must be received by the court no

later than 30 calendar days after the date this|

A27

initial decision becomes final.

ENFORCEMENT

If the settlement agreement has been made part

of the record, and the agency has not fully com-

plied with the terms of the agreement after this

initial decision has become final, you may ask

the Board to enforce the settlement agreement by

filing a motion with this office.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition

for review of this initial decision in accordance

with the Board's regulations.

A28

APPENDIX H

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ABDELFATTAH ELSHINNAWY, 3

Plaintiff,

Ve :

H. LAWRENCE GARRETT, III, : MEMORANDUM AND ORDER

SECRETARY, DEPARTMENT OF

NAVY, :(Entered on the docket

1/21/92)

Defendant. :(Original filed Jan.

21, 1992)

BROWN, District Judge

Before the Court is defendant's motion to

dismiss the complaint without prejudice for plain

tiff's failure to make timely and effective ser-

vice of process on the United States Attorney.

For the reasons set forth in this Memorandum and

Order, issued pursuant to Fed.R.Civ.P.78, the

Court will grant the motion.

BACKGROUND

On May 28, 1991, plaintiff filed this action,

alleging that the Navy unlawfully discriminated

against him by removing him from his naval engi-

neer position. By letter dated July 24,1991, the

United States Attorney, District of New Jersey,

conveyed the following information to plaintiff:

A29

ete

The United States Attorney's office

has received a copy of a summons and

complaint in this matter on July 2, 1991.

Please be advised that to date your attem-

pted service of process is not in com-

pliance with Federal Rules of Civil Proce-

dure 4(d)(4),(5). In order to serve the

United States or an agency or officer

thereof you must, inter alia, deliver a

copy of the summons and complaint to the

United States Attorney for this district.

Pif.'s Br., Ex.3 (emphasis in original). Subse-

sequently, on August 2, 1991, the United States

Attorney's office received by certified mail a

copy of the summons and complaint. Donnelly Decl.,

@2. There are no records of plaintiff attempting

service in any other manner. Id.,# 3.

DISCUSSION

Under Fed. R. Civ. P. 4(j), plaintiff had

until September 27, 1991, or 120 days after

filing his complaint, to effect service. Because

defendant is an "officer or agency of the United

States," it was necessary for plaintiff to serve

both the United States and the officer or agency.

See Fed. R. Civ. P. 4(d)(5). A plaintiff serves

the United States by"delivering" a copy to the

United States Attorney's office in the district

in which the action is brought and by "sending"

a copy to the Attorney General in Washington.

A30

See Fed. R. CIV. P. 4(d)(4). In some circumstan-

ces, service may be effected by mail, but servic

under Rules 4(d)(4) and 4(d)(5) are not among

those circumstances. See Fed. R. Civ. P. 4(c)(2)}

(C).

Rule 12(j) provides in part:

If a service of the summons and complaint

is not made upon a defendant within 120

days after the filing of the complaint i

and the party on whose behalf such service

was not made within that period, the ac-

tion shall be dismissed as to that defen- :

dant without prejudice upon the curt's |

own initiative with notice to such party

or upon motion.

Fed. R. CIV. P. 4(j). Rule 4(j) must be strictly}

- applied. See Hilmon Co. (V.I.) Inc. v. Hyatt

Int'l, 899 F.2d 250, 252 (3d Cir. 1990); Love-

lace v. Acme Markets, Inc., 820 F.2d 81, 84 (34d

Cir.), cert. denied, 484 U.S. 965 (1987). A

plaintiff may avoid dismissal only upon a show-

ing of good cause for his failure to serve with-[

in the 120 days. See Dominic v. Hess Oil (v.t.) |

Corp., 841 F.2d 513, 517 (3d Cir. 1988). |

Plaintiff has not established good carse for

his failure to effect proper service. The letter[>

of July 24, 1991, specifically informed plaintif!

that he had not complied with Rule 4, and direc-f

A31

ted his attention to Rules 4(d)(4) and 4(d)(5).

In opposition to this motion, plaintiff contends

that the letter "did not specify that the deli-

very of the summons and complaint was to be made

personally." Yet he already had served the Uni-

ted States Attorney by mail, and that office was

informing him that this method was not success-

ful. Thus, he was on notice that service had to

be made some other way. In addition, Rule 4(d)

(4), to which plaintiff's attention was directed,

makes a clear distinction between "delivering"

and "sending" process. If that distinction was

ambiguous, Rule 4(c)(2)(C) clearly sets forth

when service by mail is sufficient.

Because service was not effected within 120

days and plaintiff has not established good

cause for his failure to comply with Rules 4(d)

(4) and 4(d)(5), "the action shall be dismissed".

Fed. R. Civ. P. 4(j).-

CONCLUSION

For the forgoing reasons,

It is this 2lst day of January, 1992,

ORDERED, pursuant to Fed. R. Civ. P. 4(j),

that defendant's motion to dismiss the complaint

A32

be and is hereby GRANTED; and it is

FURTHSR ORDERED that the complaint be and is

hereby DISMISSED without prejudice.

GARRETT E. BROWN, JR.,U.S.DE

A33

APPENDIX I

UNITED STATZ2S DISTRICT COURT

DISTRICT OF NEW JERSEY

ABDELFATTAH M. ELSHINNAWY,

Plaintiff, Civ. No. 90-3510(GEB)

Ve ORDER

H. LAWRENCE GARRETT,III,

SECRETARY,DEPT OF THE NAVY :(Entered on the docket

10/12/93)

Defendant. :(Filed Oct. 12, 1993)

“ef of 8 66 oo ee oe

This matter having come before the Court on

plaintiff's motion pursuant to Fed. R. App.P.

10(e) to expand the record transmitted to the

Third Circuit Court of Appeals to include: (1) a

copy of defendant the United States' letter in

opposition to plaintiff's objections to the Re-

port and Recommendation filed by Magistrate Judge

John J. Hughes pursuant to 28 U.S.C. 636(b)(1)

(B) on May 14, 1993, denying plaintiff's motion

to re-open the above-captioned action, and there-

after adopted as an Order of this Court by Order

dated June 21, 1993; and (2) a copy of plaintiff's

reply brief to the above-referenced opposition

letter; and it being well established that pursu-

ant to General Rule 12(C) of the General Rules

of this Court such written submission to the

A34

Court are not a part of the Clerk's file as they

are neither sworn statements nor pleadings; and

this matter being decided without oral argument

pursuant to Fed. R. Civ. P. 78; and good cause

having not been shown;

It is this 12th day of October, 1993,

ORDERED that plaintiff's motion pursuant to |

Fed. R. App. P. 10(e) to expand the record transp

mitted to the Third Circuit Court of Appeals as |

set forth above be and is hereby DENIED.

GARRETT E. BROWN,JR.,U.S.D.

A35

APPENDIX J

dure other than by notice of motion is necessary. An

order to show cause which is issued at the beginning of

the action may not, however, serve as a substitute for a

summons which shall issue in accordance with Rule 4

of the Civil Rules. The order to show cause may in-

clude temporary restraints only under the conditions set

il Rules.

Applications for orders to show cause, and for

consent and ex parte orders, shall be made by deliver-

ing the proposed orders and supporting papers to the

Clerk, who shall promptly deliver each application to

the Judge to whom the case has been assigned.

The order shall provide for service upon the

Opposing party of the order together with all supporting

papers, as specified by the Court.

B. Provisional Remedies Time

All applications for provisional remedies or a

writ of habeas corpus or any other emergency relief

may be made at any time to the Judge to whom the

case has been assigned.

C. Motion Practice — Generally

All other applications by notice of motion or

otherwise shall be made returnable on a regular argu-

ment day before the Judge to whom the case has been

assigned.

Except during vacation periods of the Court, the

regular argument days are: Camden, the first and third

Friday of each month; Newark, the second and fourth

Monday of each month; Trenton, the first and third

Monday of each month. Unless the Court directs other-

wise, it will convene at 10:00 A.M. on argument days.

Whenever a regular argument day falls on a holiday,

the argument will be heard on the following non-holi-

day except in Camden where it will be heard on the

preceding non-holiday.

Unless otherwise ordered by the Court, the re-

3

3

5

&

S

s

i

3

12-2

A36

turn day of all motions shall not be later than the sec-

ond available motion day subsequent to the filing of the

motion.

If a motion is noticed for any day other than a

regular argument day, unless such day has been fixed

by the Court, the Clerk shall list the hearing for the

next regular argument day and notify all counsel of the

Change in date.

No application will be heard unless an original

and one copy of the moving papers and a brief pre-

pared in accordance with General Rule 27B, or a state-

ment that no brief is necessary and the reasons therefor,

and proof or acknowledgement of service of the brief or

statement and the moving papers on opposing counsel

are received at the Clerk’s office at the place of alloca-

tion of the case at least 24 days prior to the date no-

ticed for argument. The brief shall be a separate docu-

ment for submission to the Court, not attached to the

moving papers, and shall note the date for argument on

the cover page.

No argument in opposition to the application will

be heard unless an original and one copy of an answer-

ing brief, specifying the date for argument on the cover

page, or a statement that no brief is necessary and the

reasons therefor, with proof or acknowledgement of

service thereof on opposing counsel is received at the

Clerk’s office at the place of allocation of the case at

least 14 days prior to the date originally noticed for

argument, unless the Court otherwise orders.

If the moving party chooses to submit a reply

brief, an original and one copy of that brief specifying

the date for argument on the cover page, with proof of

acknowledgment of service thereof on opposing counsel,

must be delivered to the Clerk’s office at the place of

allocation of the case at least 7 days prior to the date

originally noticed for argument.

12-3

A37

5

g » upon direction of the

adequate, the pre

Court, shall submit an order within five days of the

within 7 days of receipt by the Court, the order may be

signed. If such an objection is made, the matter may be

listed for hearing at the discretion of the Court.

A cross-motion related to the subject matter of

the original nuotion may be filed by the responding

party together with that party’s opposition and may be |

noticed for hearing on the same date as the original

motion, as long as the responding papers are timely

filed. Upon the request of the original moving party, the

Court may enlarge the time for filing a reply or a

response to the subsequent motion and continue the

noticed hearing date.

Motions Pertaining to discovery are governed by

General Rule 15C below.

E. No Prefiling Applications

No application will be entertained by a Judge in

any action until the action has been filed, allocated and

assi

F. Motions in Criminal Matters

Defenses or objections permitted pursuant to

Rules 12 and 41(e) of the Criminal Rules shall be made

before pleading or within 30 days thereafter unless the

Court at the time of arraignment on application of

12-4

A38

APPENDIX K

RULE 60. RELIEF FROM JUDGEMENT OR ORDER

Text of Rule 60

(a) Clerical Mistakes. Clerical mistakes in

judgements, orders or other parts of the record

and errors therein arising from oversight or omi-

ssion may be corrected by the court at any time

of its own initiative or on the motion of any

party and after such notices, if any, as the

court orders. During the pendency of an appeal,

such mistakes may be so corrected before the app-

eal is docketed in the appellate court, and there-

after while the appeal is pending may be so corre-

cted with leave of the appellate court.

(b) Mistakes; Inadvertence; Excusable Neglect;

Newly Discovered Evidence; Fraud, etc. On motion

and upon such terms as are just, the court may

relieve a party or his legal representative from

a final judgement, order, or proceeding for the

following reasons: (1) mistake, inadvertence, sur-

prise, or excusable neglect: (2) newly discovered

evidence which by due diligence could not have

been discovered in time to move for a new trial

under Rule 59(b); (3) fraud (whether heretofore

denominated intrinsic or extrinsic), misrepresen-

A39

tation, or other misconduct of an adverse party;

(4) the judgement is void; (5) the judgement has

been satisfied, released, or discharged, or a

prior judgement upon which it is based has been

reversed or otherwise vacated, or it is no longer

equitable that the judgement should have prospec-

tive application; or (6) any other reason justi-

fying relief from the operation of the judgement.

The motion shall be made within a reasonable

time, and for reasons(1),(2), and (3) not more

than one year after the judgement, order,or pro-

ceeding was entered or taken. A motion under this

subdivision (b) does not affect the finality of

a judgement or suspend its operation. This rule

does not limit the power of a court to entertain

an independent action to relieve a party from a

judgement, order, or proceeding, or to grant re-

lief to a defendant not actually personally noti-

fied as provided in Title 28, U.S.C. $1655, or to

set aside a judgement for fraud upon the court.

Writs of coram nobis, coram vobis, audita querels,

and bills of review and bills in the nature of a

bill of review, are abolished, and the procedure

for obtaining any relief from a judgeme.* shall be

by motion as prescribed in these rules or by an

independent action.

A40

APPENDIX L

February 23, 1994

P. Douglas Sisk, Clerk

U.S. Court of Appeals

for the Third Circuit

21400 United States Courthouse

601 Market Street

Independence Mall West

Philadelphia, PEnnsylvania 19106-1790

Re: Abdelfattah M. Elshinnawy v. Honorable

John H. Dalton, Secretary, Department of

the Navy, Substituted for H. Lawrence

Garrett III

Docket No. 93-5434

Dear Mr. Sisk:

Pursuant to the Notice of Judgement

dated February 17, 1994, I am enclosing the ori-

ginal and one copy of the Bill of Costs and Ite-

mized Bill of Costs in this matter.

If you have any questions as to the

Calculation or content, please feel free to

contact me anytime.

MICHAEL CHERTOFF

United States Attorney

By: DOROTHY DONNELLY

Assistant United States

Attorney

DD: lp

Enclosures

cc: Abdelfattah M. Elshinnawy

Acting Pro se

397 Stratford Avenue

Collegeville, Pennsylvania 19426 wyencl.

A41

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

ABDELFATTAH M.ELSHINNAWY, : Docket No. 93-5434

Plaintiff-Appellant, :

Ve : ITEMIZED BILL OF COSTS

HONORABLE JOHN H. DALTON :

SECRETARY, DEPARTMENT OF THE

NAVY, SUBSTITUTED FOR :

H. LAWRENCE GARRETT III

Defendant-Appellee

State of New Jersey )

)

)

ss

County of Mercer

DOROTHY DONNELLY, being duly sworn, deposes

and says:

1. I am an Assistant U.S. Attorney for the

District of New Jersey and counsel for the appe-

llee, Honorabie John H. Dalton, Secretary, Depar-

tment of the Navy Substituted for H. Lawrence

Garrett, III, in the above-captioned case.

2. In this case, appellee filed ten copies of

its combined brief and the party (Kathleen L.

Colont, plaintiff-appellant) received two copies.

The brief totalled 44 pages and was reproduced

in-house by means of photocopying at an actual

cost of 10 cents per page (under Court Rule 20.1),

for a cost of $4.40 a brief x 12 copies = $52.80.

A42

3. Added to this figure are the sums of $25.00

for covers and $2.00 for binding each copy x 12

copies = $24.00.

4. The total costs, pursuant to Court Rule 20,

amount to:

$ 52.80 Photocopying

$ 25.00 Covers

$ 24.00 Binding

$101.80 Total

5. Under penalty of perjury, I declare these

costs to be true, to the best of my knowledge.

DOROTHY DONNELLY

Assistant United States

Attorney

Sworn and subscribed to before me

this 23rd day of February, 1994

MARGARET S. HERPEL

Notary Public of New Jersey

My commission expires Aprii 11, 1995

A43

APPENDIX M

March 30, 1994

Abdelfattah M. Elshinnawy

397 Stratford Avenue

Collegeville, Pennsylvania 19106

Re: Abdelfattah M. Elshinnawy

v. H. Lawrence Garrett, III, et al.,

Civil Action No. 90-3510

Appeal No. 94-5434

Dear Mr. Elshinnawy:

Enclosed is the Order of the Third Circuit

Court of Appeals ordering you to pay costs in

the amount of $108.00.

We hereby demand payment of this amount.

Kindly draft your check to the TRepartment of the

Treasury and send it to me at the above address.

If you fail to make payment, I will file a motion

to hold you in contempt of court.

Very truly yours,

MICHAEL CHeRTOFF

United States Attorney

By: DOROTHY DONNELLY

Assistant United States

Attorney

DD: 1p

Enclosure (402 East State Street,Room 502

Trenton, NJ 08608)

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 93-5434

ABDELFATTAH M. ELSHINNAWY

Appellant

Ve

H. LAWRENCE GARRETT, III,

SECRETA’*¥, DEPARTMENT OF THE NAVY

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civ. No. 90-03510)

District Judge: Honorable Garrett E. Brown, Jr.

Submitted Under Third Circuit LAR 34.1(a)

February 11, 1994

Before: MANSMANN, GREENBERG and NYGAARD, ag

Judges

JUDGEMENT ORDER

After consideration of all contentions

raised by the appellant, it is

ADJUDGED AND ORDERED that the judgement of

the district court be and is hereby affirmed.

Costs taxed against the appellant.

BY THE COURT,

Caro] Los Mansmann

Circuit Judge

Attest:

P. Douglas Sisk A45

P. Douglas.Sisk, Clerk

Dated: Feb. 17, 1994

No. 93-5434

Page 2

Ccsts taxed in favor of Appellee, Secretary of

the Navy as Follows:

Total Costs ... . «$101.80

Certified as a true copy and issued in lieu

of a formal mandate on March 25, 1994.

Teste:

Chief Deputy Clerk, U.S. Court of Appeals for

the Third Circuit.

A46

APPENDIX N

_UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

OFFICE OF THE CLERK

March 31, 1994

REPLY TO: TRENTON

Dorothy J. Donnelly, AUSA

U.S. Attorney's Office

402 East State Street

Room 502

Trenton,NJ 08608

Re: Elshinnawy v. Garrett

Civil Action No. 90-3510(GEB)

Dear Ms. Donnelly:

The mandate on the opinion of the U.S. Court

of Appeals for the Third Circuit was filed on

March 28, 1994.

Pursuant to General Rule 25, for the U.S.

District Court, District of New Jersey, it is

requested an order on the mandate be drafted

and forwarded to this Office for submission to

the Court.

The mandate ordered that the order of the

District Court is affirmed showing costs taxed

in favor of appellee, Secretary of the Navy, in

the sum of $101.80.

Your order on the mandate should set forth

the direction contained in the mandate.

Very truly yours,

WILLIAM T. WALSH, CLERK

By: ANNA M. CONNELLY

Deputy Clerk

cc:Honorable Garrett E. Brown,Jr.

Joan Mattis, Courtroom Deputy

Abdelfattah M. Elshinnawy, Pro se

File

A47

APPENDIX O

MICHAEL CHERTOFF

United States Attorney

By: DOROTHY DONNELLY (DD:2545)

Assistant United States Attorney

402 East State Street, Room 502

Trenton, New Jersey 08608

(609) 989-2190

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ABDELFATTAH M. ELSHINNAWY, : HONORABLE GARRETT E.

BROWN, JR.

Plaintiff, : Civil Action No.

90-3510

ve : (Entered on the do-

cket 4/26/1994)

H. LAWRENCE GARRETT, III, : (Original filed APR

SECRETARY,DEPARTMENT OF NAVY 26, 1994)

3

Defendant.

:

ORDER ON THE MANDATE

The United States Court of Appeals for the

Third Circuit having entered a judgement order

on February 17, 1994, affirming the holding of

the United States District Court for the District

of New Jersey and having awarded costs to the

Defendant, H. Lawrence Garrett, III, Secretary,

Department of the Navy, and rehearing having

been denied,

IT IS on this 26th day of April, 1994,

ORDERED that plaintiff will pay costs to the

defendant in the sum of $104.80 as awarded on appeal.

A48 HONORABLE GARRETT E. BROWN,UR.

UNITED STATES DISTRICT JUDGE

APPENDIX P

Abdelfattah Elshinnawy

397 Stratford Avenue

Collegeville, Pennsylvania 19426

Dear Mr. Elshinnawy:

Enclosed is an order of the court awarding

costs in the last appeal. Kindly send your check

for the amount awarded to this office. Make your

check payable to the Department of the Treasury.

If you fail to make payment I will move to

dismiss your presently pending appeal and take

all other steps to compel payment.

Very truly yours,

MICHAEL CHERTOFF

UNITED STATES ATTORNEY

by: Dorothy Donnelly

Assistant U.S. Attorney

encl.

MICHAEL CHERTOFF

United States Attorney

By: DOROTHY DONNELLY (DD:2545)

Assistant United States Attorney

402 East State Street, Room 502

Trenton, New Jersey 08608

(609) 989-2190

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ABDELFATTAH M. ELSHINNAWY, : HONORABLE GARRETT E.

BROWN, JR.

Plaintiff, : Civil Action No.

90-3510

Vv. : (Entered on the do-

cket 4/26/1994)

H. LAWRENCE GARRETT, III, : (Original filed APR

SECRETARY,DEPARTMENT OF NAVY 26, 1994)

3

Defendant.

ORDER ON THE MANDATE

The United States Court of Appeals for the

Third Circuit having entered a judgement order

on February 17, 1994, affirming the holding of

the United States District Court for the District

of New Jersey and having awarded costs to the

Defendant, H. Lawrence Garrett, III, Secretary,

Department of the Navy, and rehearing having

been denied,

IT IS on this 26th day of April, 1994,

ORDERED that plaintiff will pay costs to the

defendant in the sum of $104.80 as awarded on appea:

A50 HONORABLE GARRETT E. BROWN,JR.

UNITED STATES DISTRICT JUDGE