Petition for Writ of Certiorari — Gellert v. United States District Court

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Supreme Court, U.8.

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941015 DEC 519%

CASE NO. ____ os fice OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

DANIEL G. GELLERT,

Petitioner,

UNITED STATES DISTRICT COURT for the

SOUTHERN DISTRICT OF FLORIDA

PETITION FOR CERTIORARI

In pro se, by:

Daniel G. Gellert

P. O. Box 320370

Cocoa Beach,

Florida 32932

(407) 783-9412

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

DANIEL G. GELLERT,

Petitioner,

UNITED STATES DISTRICT COURT for the

SOUTHERN DISTRICT OF FLORIDA

PETITION FOR CERTIORARI

In pro se, by:

Daniel G. Gellert

P. O. Box 320370

Cocoa Beach,

Florida 32932

(407) 783-9412

QUESTIONS PRESENTED FOR REVIEW

Must a trial judge, while under criminal investigation by

a Federal Grand Jury, disclose this fact to a plaintiff? Allow

the plaintiff to file for recusal, and having failed to do so, is

this a violation of plaintiffs due process rights under the

Fifth Amendment?

Does a plaintiff have the same rights under Rule 56, to the

entry of summary judgement motions as defendants have?

To secure the just, speedy and inexpensive determination of

his cause as a moving party, terminating the action in his

favor? Is this guaranteed by the Seventh Amendment?

Cana union force the discharge of a minority employee

under the forced collection of union dues, when membership

was not available on the same terms as were applicable to

others? When this non-member objected to his dues being

used for political purposes, had an authorization for the

voluntary deduction of his dues, paid the dues, and still he

was discharged, is this a violation of his rights under the

First, Fifth and Fourteenth Ar. 1dments?

Can "arbital immunity" be granted to union and em-

ployer officials under Lie Railway Labor Aci and ERISA?

Is the forced collection of union dues a "minor dispute"

under the Railway Labor Act, (2) 11, and therefore subject

only to the exclusive remedy of arbitration, or are there

Constitutional rights under the First, Fifth and Four-

teenth Amendments, which are not "second bites at the

apple", but provide federal court review and jurisdiction?

Can arbitration resolve Petitioner’s Constitutional rights in

this cause, as courts below have ruled, or is this subject to

review, and does a citizen have the right to petition the

Supreme Court to hear his Constitutional grievance?

Just how far can the forced collection of union dues move

against an employee? Does the First, Fifth and Four-

teenth Amendments provide protection as to ERISA and

Workers’ Compensation Law benefits, or are these laws also

part of the RLA (2)11 scheme to harm and punish an

employee for the alleged failure to pay union dues?

ii

LIST OF PARTIES

RESPONDENTS/DEFENDANTS

in Court Case 90-1113-CIV-MOORE:

EASTERN AIRLINES FIXED BENEFIT RETIREMENT IN-

COME PLAN FOR PILOTS and employee benefit pension

plan

EASTERN AIRLINES, INC., solely as Administrator of such

defendant plan

PENSION BENEFIT GUARANTY CORPORATION

EASTERN AIRLINES RETIREMENT BOARD a/k/a PEN-

SION DISPUTE BOARD

AIR LINE PILOTS ASSOCIATION

ALAN C. GIBSON

WILLIAM R. TEGTMAN

JACK N. MOGUS

CHARLES COPELAND

TRAVELERS INSURANCE CORPORATION

HONORABLE K. MICHAEL MOORE

ZT E OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW i

LIST OF PARTIES iii

TABLE OF AUTHORITIES liiii

GROUNDS ON WHICH JURISDICTION OF 1

THIS COURT IS INVOKED

CONSTITUTIONAL AND STATUTORY 5

PROVISIONS FOR JURISDICTION

DEFENDANTS DEFAULTED UNDER RULE 56 11

STATEMENT OF THE CASE 14

ARGUMENT 18

APPENDIX: 25

U.S. Circuit Court of Appeals, Eleventh Circuit

Denial of Writ of Mandamus.

EXHIBIT A 26,27

U.S. District Court, Southern District of Florida

Excerpt from: Omnibus Order on Pending

Motions

EXHIBIT B 28,29

U.S. District Court, Southern District of Florida

Excerpt from: Omnibus order on Pending

Motions

EXHIBIT C 30,31

U.S. Circuit Court of Appeals, Eleventh Circuit

Denial of Writ of Mandamus

EXHIBIT D 32

U.S. Circuit Court of Appeals, Eleventh Circuit

Denial of Reconsideration of Writ of

Mandamus.

EXHIBIT E 33

Railway Labor Act, ("RLA") 45 U.S.C. #152 Eleventh

EXHIBIT F 34

Supreme Court Order

EXHIBIT G 36

iiii

TABLE OF AUTHORITIES

1. CONSTITUTIONAL AMENDMENTS:

FIRST,

FIFTH,

SEVENTH,

FOURTEENTH,

2. RAILWAY LABOR ACT, {"rla‘), EXHIBIT F

(45 U.S.C. #152 Eleventh)

3. Air Line Pilots Association v. O'Neill

113 L. Ed 2d 51

4. Anderson v. Liberty Lobby, Inc.

477 U.S. 242

5. Celotex Corporation v. Catrett

477 U.S. 317

6. Communications Workers of America v Beck

367 U.S. 735

7. Eastern Airlines, Inc. v. Gellert

431 So.2d 329

8. Eastern Airlines, Inc. v. Gellert

438 So.2d 923

9. Gellert v. Eastern Airlines, Inc.

370 Sw.2d 802

iiiii

PAGES

i,ii,4,7

i,ii,4,7,18

i,ii,7

i,ii,4,7

ii,8,9,14,21

1,6,19

4,8

10

10

10

10. Hrubec v. National Railroad Passenger Corp. 13

829 F.Supp. 1502

11.International ation of Machinist v. Street 4,8,9,19

367 U.S. 740

12.International Union, United Auto. Wkrs. v. 16

Greyhound Lines

701 F2d. 1181 (1983)

13.Matsushita Electric v. Zenith Radio Corp. 2.19

475 U.S. 574

14.0’Connor v. State of Nevada, 13

507 F.Supp. 546 (D. Nev. 1981)

15.Sidney-Vinstein v. A.H. Robins Co.. 13

697 F2d. 880 (9th Cir. 1983)

16.Superior Beverage Co. v. State of Ohio, 12

324 F.Supp. 564 (N.D. Ohio 1971)

17.Rule 56, Federal Rules of Civil i,5,.6,11,12,13,19

Procedure

18.Local Rules 7.1 and 7.5, District Court 5.6.11,12

for the Southern District of Florida

iiiiii

R N WHICH N OF THIS

COURT IS INVOKED

Plaintiffs due process rights have been violated by the

courts below. Plaintiffhas Constitutional protection under

the Fifth Amendment to an unbiased court, ajudiciary free

from a taint of corruption, a District Court Judge whois free

from the dark cloud of a criminal investigation.

Judge K. Michael Moore failed to inform plaintiff that he

was under investigation for violations of felony criminal

laws of the United States, accepting gratuities from indi-

viduals doing business with the U.S. Marshal Service under

his direction, individuals who have been found guilty of

bribery.

Judge Moore denied plaintiffs proper motions for sum-

mary judgements, which in this circumstance is a denial of

due process, and violates plaintiffs Fifth and Seventh

Amendment's Constitutional protection. This raises issues

as to due process, plaintiffs rights to his summary

_ judgements under the Seventh Amendment, in the orders

of Judge Moore, who has accepted gratuities in violation of

1

federal ethical rules. See: Celotex Corporation v. Catrett,

477 U.S. 317; Matsushita Electrical Industrial Co. Ltd. v.

Zenith Radio Corporation, 475 U.S. 574; Jack Anderson v.

Liberty Lobby, Inc. 477 U.S. 242.

The Appeals Court has denied plaintiff a review of these

Constitutional issues, which provides forjurisdiction herein.

The appeals court has found on November 20, 1992 that

previous orders of the court below were not final, and these

issues are properly before the district court for reconsidera-

tion and reversal. EXHIBIT A.

The district court in its Sept.13, 1993 OMNIBUS OR-

DER ON PENDING MOTIONS, upheld the arbital immu-

nity for the two Air Line Pilots officials, and further granted

this immunity to the two employer officials. EXHIBIT B.

The court denied Petitioner’s motions for summary

judgement by stating: "Plaintiffs Motions for Summary

Judgement based upon failure to respond to discovery or

the Amended Complaints are Denied." Petitioner did not

file a motion for summary judgement which was based

upon defendant’s failure to respond, and the Federal Rule

of Civil Procedure 56, has no basis to consider defendants’

2

failure to respond to discovery or the complaint.

The court also filed an OMNIBUS ORDER on April 14,

1994, in this order the court has lumped Petitioner’s other

supporting motions in seeking his just due, the entry of his

motion for summary judgement, and has made Petitioner's

cause subject to dismissal as to any additional motions to

support his proper motions for summary judgements.

EXHIBIT C.

In Case No. 89 B 10448, U.S. Bankruptcy Court South-

ern District of New York, defendants successfully opposed

Petitioner's recovery from the Eastern Airlines, Inc. estate,

based upon unresolved summary issues, a magistrate’s

report, and a motion to strike.

The bankruptcy court hearing was on November 15,

1994, which has effectively denied Petitioner recovery,

since the Petitioner’s motions for summary judgements are

continued to be denied by the district court.

Defendants argued to the bankruptcy court, which the

court accepted, that petitioner’s rights as to the forced

collection of union dues was a "minor dispute" under the

Railway Labor Act, and arbitration was Petitioner’s exclu-

3

sive remedy, and a suit ina federal court was a "second bite

at the apple", and the federal courts lacked jurisdiction.

This is in direct conflict with this court’s previous

opinions in AM v Street, Communication Workers v. Beck, |

in which this Court established First, Fifth and Fourteenth

Amendment rights, and in this case there is a Constitu-

tional crisis, which is presented for certiorari and review.

This petition seeks to review the denial of a writ of

mandamus by the United States Court of Appeals for the

Eleventh Circuit, dated February 23, 1994. EXHIBIT D and

denial of rehearsing dated, July 8, 1994. EXHIBIT E.

Petitioner was granted an extension of time to file the

instant petition for certiorari, the October 5, 1994 order is

attached as EXHIBIT G.

There are no issues as to statute of limitations, since the

final administrative remedies were concluded during 1992

and 1994.

CONSTITUTIONAL AND STATUTORY PROVISIONS

FOR JURISDICTION

Petitioner’s due process rights have unquestionably

been denied by Judge K. Michael Moore’s prior conduct at

the U.S. Marshal Service, these actions which were based

upon the acceptance of illegal gratuities, in violation of

Federal Ethical Standards, raises serious and fatal con-

cerns as to his denial of Petitioner’s Constitutional rights

to Summary Judgements under Rule 56, Federal Rules of

Civil Procedures, and Local Rules 7.1 and 7.5, which state

in part:

Rule 56. Summary Judgement (a) for Claimant. A

part seeking to recover upon aclaim, ...at any time after

the expiration of 20 days from commencement of the

action . . . (c) Motions and Proceedings Thereon. ...

The judgement sought shall be rendered forthwith ifthe

pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any,

show there is no genuine issue as to any material fact

and that the moving party is entitled to a judgement as

a matter of law. (f) When Affidavits are Unavailable.

Should it appear from affidavits of a party opposing the

motion that the party cannot for reasons stated present

by affidavit facts essential to justify the party’s opposi

tion, the court may refuse the application for judgement

or may order a continuance to permit affidavits to be

obtained or depositions to be taken or discovery to be

had or may make such other order as is just.

5

Local RULE 7.1.C. Memorandum of Law. Each party

opposing a motion shall serve and file an opposing

memorandum of law. . . Failure to do so may be deemed

sufficient cause for granting the motion by default.

Local RULE 7.5 MOTIONS FOR SUMMARY JUDGE

MENT. Motions for summary judgement shall be

accompanied by a memorandum of law, necessary

affidavits, and a concise statement of the material facts

as to which the moving party contends there is no

genuine issue to be tried . . . All material facts set forth

in the statement required to be served by the moving

party will be deemed admitted unless controverted by

the opposing party’s statement.

"The plaintiff in an action in Federal District Court

cannot claim to have been 'railroaded’ by a premature

motion for summary judgement, where the motion is filed

12 months after the commencement of the action; any

potential problem with a premature motion can be ad-

equately dealt with under the Rule 56(f) of the Federal Rules

of Civil Procedure, which allows a summary judgement

motion to be denied, or the hearing on the motion to be

continued, if the nonmoving party has not had an oppor-

tunity to make full discovery" Celotex Corp. v. Catrett, 477

U.S. 317, at 321, and at 320 this Court further stated

“Federal Rules of Civil Procedure mandates the entry of

summary judgement, after adequate time for discovery and

upon motion, against a party who fails to make a showing

sullicient to establish the existence ol an element essential

to that party’s case, and on which that party will bear the

burden of proof at trial, in such situation, there can be no

genuine issue as to any material fact . . . the moving party

is entitled to judgement as a matter of law".

While Celotex Supra, and other cases decided by this

Court, were cases in which the moving parties were Defen-

dants, Petitioner invokes the Seventh Amendment herein,

and the same and exact standard should also apply to

nonmoving defendants, and Petitioner’s summary judge-

ment should be granted.

Defendants needed sufficient showing of an essential

element in their case, with respect to their burden of proof,

to demonstrate the District Court, that their action in the

discharge of the Petitioner did not violate the First, Fifth and

Fourteenth Amendments of the Constitution .

Defendant Air Line Pilots Association, ("ALPA") had a

duty to grant plaintiff's application for union membership,

prior to a demand for the forced collection of union dues,

7

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under the Railway Labor Act, ("RLA") 2(11), Union Security

clause.

Delcudails ALPA, as plaitiff's union, and sole bargain-

ing representative, and Eastern Airlines, Inc., plaintiff's

employer had a duty to honor plaintiff's voluntary autho-

rization under the RLA’s 2(11) (b), and deduct his union

security obligation, since plaintiff had this authorization

continuously on file from December 1971, to at least

January, 1993.

Plaintiff did pay the union security payment requested,

none-the-less defendants terminated his employment on

June 17m 1986 for "failure to pay union dues".

Plaintiff is a minority under the law, and seeks the

protection of the Constitutions First, Fifth and Fourteenth

Amendments, see: International Association of Machinists

v. S.B. Street, 367 U.S. 740; Communications Workers of

America v. Harry E. Beck, 487 U.S. 735, since the termina-

tion of his employment was in clear and documented

violation of these Constitutional provisions and safeguards.

Defendants’ actions in further taking plaintiff's benefits

under the independent statutes of ERISA and Workers’

8

Compensation Laws, solely in moving the harsh and

punitive provisions of the RLA union Security, 45 U.S.C.

152 Eleventh, raises constitutional questions, if the First,

Fifth and Fourteenth Amendments allow these new puni-

tive provision to be so implemented.

Petitioner requested from the union, the cost of negotiating

and administering the agreement, to protect his rights in

free speech, and demanded union membership. These

rights have been recognized by this Court: "Congress

incorporated safeguards in the statute to protect dissenters’

interest . . . to prevent discharge of employees for

nonmembership where the union did not admit the em-

ployee to membership on racial grounds. International

Machinist v. Street, 367 U.S. 740, at 758.

While this Court has recognized the Constitutional

issues involving the forced collection of union dues, and has

also provided for the judicially created duty of fair represen-

tation, ("DFR"), "A union’s duty of fair representation is

akin to the duty owed by other fiduciaries to their benefi-

ciaries; see: Air Line Pilots Association v. O’Neill, 113 L.Ed

tits reer Tene a a

2d 51, at 54, which provides fertile judicial grounds for

certiorari and a decision which resolves the Constitutional

crisis herein.

Petitioner was discharged for the alleged failure to "pay

union dues", when the applicable law and agreement

required Petitioner to become a union member, which

Petitioner did attempt to do, or if Petitioner did not attempt

to become a union member to pay for the cost of negotiating

and administering the agreement. In this case, defendants

unlawfully used the narrow and constitutionally limited

union dues issue to punish an employee, see: Gellert v.

Eastern Air Lines, 370 So.2d 802, Eastern v. Gellert, 431

So.2d 329, and Eastern v. Gellert, 438 So.2d 923, and to

unlawfully use the RLA union security for their purpose.

10

Defendants Defaulted Under Rule 56

The instant petition is based upon exceptional circum-

stances, in which Petitioner’s summary judgements were

denied by a judge under criminal investigation, and ad-

equate relief cannot be obtained in any other form or from

any other court, and the granting of certiorari, will be in aid

of the Court's appellate jurisdiction.

Petitioner filed a motion for summary judgement against

defendant Travelers Insurance Corporation, ("Travelers"),

and the Pension Dispute Board, ("PDB"), on April 7, 1993.

Defendants Travelers and the PDB filed a "motion to

strike" with out one scintilla of evidence under Rule 56 and

completely disregarded the requirements of Rule 56 and

Local Rules 7.1 and 7.5. Motions are not a proper and

accepted method to respond to motions in general, but they

are considered fatal to nonmoving parties in opposition to

Rule 56 summary judgement motions.

In specific, motions "to strike" are proper only when used

against pleadings, and are inappropriate and cannot be

considered in a Rule 56 motion for summary judgement.

Superior Beverage Co. v. State of Ohio, 324 F.Supp. 564

11

ho iaeeeaeeeaeemamaiaiamiieemaaiiiaiel

(N.D. Ohio 1971), Sidney-Vinstein v. A.H. Robins Co., 697

F.2d 880 (9th Cir. 1983), Hrubec v. National Railroad

Passenger Corp., 829 F.Supp. 1502 (N.D. Ill. 1993), O'Connor

v. State of Nevada, 507 F.Supp. 546 (D. Nev. 1981).

All other defendants also defaulted in meeting their

specific burden under Rule 56 and Local Rules 7.1 and 7.5.

Defendant Eastern Airlines, Inc., ("Eastern"), also filed a

motion to strike, and defendants Air Line Pilots Associa-

tion, ("ALPA"), and the Pension Benefit Guaranty Corpora-

tion, ("PBGC") filed unresponsive motions to stay and

oppose. Defendants failed to file required and responsive

memorandums of law, and all defendants therefore are in

default, and Petitioner’s proper motions for summary

judgements should have been granted.

“Summary judgement procedure is properly regarded

not as disfavored procedural shortcut, but rather as an

integral part of the Federal Rules as a whole, which are

designed ’to secure the just, speedy and inexpensive

determination of every action’. . . there can be no

genuine issue as to any material fact’, since a complete

failure of proof concerning an essential element of the

nonmoving party’s case necessarily renders all other

facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317

at 328 and 323.

12

Petitioner provided his voluntary authorization for the

deduction of his union security obligations, as received

from the files of defendant ALPA, and attached this with an

affidavit to his motions for summary judgement.

Defendant’s defense to this suit has been based solely

upon Petitioner's discharge of his employment, and this

discharge was for the alleged "failure to pay" his union

security obligations, which triggers Petitioner's First, Fifth

and Fourteenth Amendments rights, a burden which

defendants had to overcome in their response to a Rule 56

summary judgement motion, to which all defendants

defaulted.

13

STATEMENT OF THE CASE

Petitioner was a long term pilot employee of defendant

Eastern Airlines, Inc., with an employment date of February

11, 1963, with the rank of Captain, and vested under the

Employee retirement Income Security Act, ("ERISA"), and

eligible for voluntary retirement on October 2, 1982.

Petitioner joined defendant Air Line Pilots Association,

("ALPA"), the exclusive bargaining representative of East-

ern pilots, and assigned a voluntary deduction for his union

security obligations under the Railway Labor Act, ("RLA"),

45 U.S.C. 152, Eleventh (b). during December 1971, and

has not executed a revocation, and this authorization was

continuously in effect at least until January 13, 1993, when

a copy of this was furnished to Petitioner from defendant's

ALPA/Herndon office by telephonic facsimile.

Petitioner was a plaintiff in a number of court cases

against Eastern, as to Eastern’s retaliation against Peti-

tioner, as to his testimony involving an L-1011 airline crash

in the Everglades near Miami in 1972, while Petitioner was

not on board, his testimony resulted in a modification of the

autopilot system.

14

Petitioner has been an outstanding Eastern pilot em-

ployee, and the controversy was not based on Petitioner's

rights under the agreement. but were based on laws,

regulation of the United States, as they applied to the safe

operation of aircraft in air commerce, and coming under the

Transportation Act.

Petitioner’s First, Second and Third Amendment Com-

plaints were dismissed sua sponte, and on motion, since

these complaints named two high ranking officials of the

union, and two high ranking officials of the employer as

defendants.

These four defendants also represented the union and

employer on the Pension Dispute Board, ("PDB") , this

board is authorized to hear pension disputes, created under

the provisions of ERISA, these members were fiduciary to

Petitioner’s pension claims.

The court granted these motion to dismiss with preju-

dice, based upon their position on this board, and assigned

them "arbital immunity". Petitioner’s suit documents that

these defendants had an interest in the outcome of

Petitioner’s pension claim, two of the defendants were also

15

beneficiary of the same and exact defendant plan, and as

union members used Petitioner’s discharge for the alleged

failure to pay union dues, to also deny his ERISA pension.

The other two defendants were high ranking officials of

defendant Eastern, and defendant Al Gibson, first covertly

approved Petitioner’s discharge, then as a fiduciary, also

denied Petitioner's vested ERISA pension benefit.

These defendants failed to call in a neutral, but ruled

against Petitioner in a four-man board, and therefore there

is no privilege, no arbital immunity. Intern. Union, United

Auto. WKRS. v. Greyhound Lines, 701 F2d. 1181 (1983)

The appeals court ruled that the district court’s order

was nota final order, EXHIBIT A., but the district court has

now granted arbital immunity to the other two defendants,

and failed to grant reconsideration, and with out the

intervention of this Court, Petitioner would be required to

proceed in a new suit against these defendants. Omnibus

Order On Pending Motions, dated September 13, 1993,

-EXHIBIT B., and Omnibus Order, dated April 14, 1994.

EXHIBIT C.

16

Petitioner has been provided prima facie evidence, which all

came from defendants, Treasurer Report of defendant

ALPA, which records over 34 million dollars spent for

political, organization expenses to which Petitioner ob-

jected. ALPA informed Petitioner: "Under Document 102

the costs of the arbitration are your responsibility since you

filed an appeal in this matter.", while the defendants and the

so called neutral arranged otherwise, which documents

fraud, and raises issues as to bribery ofa public official, and

raises issues if petitioner had a fair and impartial hearing

in this particular arbitration.

Petitioner has provided sufficient prima facie evidence to

invoke the jurisdiction of this Court on certiorari, as to

denial of due process, both in arbitration and the district

court below, defendants’ clandestine payment of money to

an arbitrator, discharge of employment and denial of ERISA

benefits by a fiduciary, and criminal investigation of the

trial judge.

17

ee

——— eT a ai aaa

a ee

ARGUMENT

The granting of this petition for certiorari will greatly aid

the Court’s appellate jurisdiction, as the exceptional cir-

cumstances in this cause bring considerations of Constitu-

tional questions under the First, Fifth, Seventh and Four-

teenth Amendments, and adequate relief cannot be ob-

tained in any other form and from any other court.

The United States Court of Appeals, Eleventh Circuit,

has sanctioned and departed from accepted and usual

course of judicial proceedings, in denying a writ of manda-

mus to examine Petitioner’s due process rights under the

Fifth Amendment.

The Constitution guarantees judicial integrity, free from

a taint of criminal wrong doing, and protects citizens in

their pursuit of justice. Petitioner could not receive a fair

and impartial hearing in the district court while the judge

was under criminal investigation. The allegations of crimi-

nal wrong doing was based upon bribery, and violations of

federal ethical standards in the acceptance of gratuities.

Petitioner has protection under the Fifth Amendment’s

18

due process clause, since the judge below has used the

awesome power of the district court to deny Petitioner's

rights to summary judgements under Rule 56 Fed.R.Civ.P.,

raising a clear violation of Petitioner's Seventh Amendment

rights to a speedy, and inexpensive resolution of the instant

action, a right which has been recognized by this Court in

many prior cases.

Petitioner has met all procedural requirements for the

entry of his motions for summary judgements, nor have

defendants raised, or the court below found any procedural

defects, and this Court has found that a period of one year,

prevents the nonmoving party from claims of being rail-

roaded, and Rule 56(f), also provides reliefif further discov-

ery should be required, and therefore petitioner's motions

should have been granted under Celotex Supra, Anderson

Supra, and Matsushita Supra._

Petitioner has also met the governing substantive law

requirements, as this Court has established Constitutional

rights under the First, Fifth and Fourteenth Amendments

under the forced collection of union dues, IAM v. Street

Supra.

19

Petitioner's material facts have established that there

are no genuine issues between the parties, defendants have

no admissible evidence upon which a jury could rule in

their behalf, and Petitioner’s summary judgement should

have been granted as a matter of law.

Petitioner provided evidence from defendants’ own files,

ONE, that Petitioner applied for union membership, and

while this application was pending, defendant ALPA re-

quested his discharge for the non-payment of union dues.

TWO, defendants had in their files, voluntary union dues

deduction authorizations, current and in effect from De-

cember, 1971 at least until January 13, 1993.

THREE, Petitioner objected under the Constitution to the

use of his money for political purposes, and as a non-

member objected to the payment of money beyond the cost

of negotiating and administering the contract.

FOUR, Petitioner did pay the money demanded by defen-

dant ALPA, including those earmarked for that union’s

political purposes.

FIVE, Defendants also included Petitioner's independent

rights under the Employee Retirement Income Security

20

Act, and Worker Compensation Laws in the harsh and

punitive provisions of the forced collection of union dues,

and have used an unlawful discharge under the torced

collection of union dues, to also include the loss of benefits

under these statutes.

SIX, Defendant ALPA, as the sole bargaining agent repre-

senting Petitioner, has denied its duty of fair representa-

tion, and has joined the other defendants to unlawfully

discharge Petitioner’s employment, for reasons other than

those recognized under the provisions of the RLA’s (2)1 1th,

Union Security.

WHEREAS, the Supreme Court has recognized

Petitioner's Constitutional rights under the First, Fifth and

Fourteenth Amendments of the Constitution, under the

provisions of the Railway Labor Act’s (2)11th, forced collec-

tion of union dues. This Court has not ruled on an actual

discharge of a minority employee, who was denied union

membership, and as a non-member objected to the use of

his dues for political purposes, and had voluntary autho-

rization for the deduction of his dues, and finally paid the

money demanded, including those for political purposes, in

21

clear violation of the Constitution.

Based upon the foregoing facts, this Petition for Writ of

Certiorari should be granted. ‘ihe Supreme Court should

resolve these Constitutional questions, and grant the relive

requested, since adequate relief cannot be obtained in any

other form or from any other court.

These extraordinary circumstances provide for granting

certiorari, and the resolution of Petitioner’s rights under

the Constitution.

Respectfully submitted,

/s/

Daniel Gonzales Geller, in pro se

P. O. Box 320370

Cocoa Beach,

Florida 32932

(407) 783-9412

22

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that a true and correct copy of the

foregoing has been served this day of

199 __, by U.S. Mail to:

Mr. Drew S. Days Ill

Solicitor General

U.S. Department of Justice

Washington, D.C. 20530

Mr. Miguel J. Cortez, J

U.S. Court of Appeals for

the Eleventh Circuit

56 Forsyth Street, N.W.

Atlanta, GA 30303

Office of the Clerk, for

Hon. K. Michael Moore

U.S. District Court for the

Southern District of Florida

301 North Miami Avenue

Miami, FL 33128

Mr. Robert R. Kofman, Esq.

Attorney for Defendant ALPA

150 West Flagler Street

Suite 2000 Museum Tower

Miami, FL 33130

23

Mark Hicks, Esq.

New World Tower, Ste 2403

100 North Biscayne Blvd.

Miami, FL 33132

Attorney for Defendant

Travelers Insurance Co.

Maurice Baumgarten, Esq.

Ste 3300 Int'l Place

100 S.E. Second Street

Miami, FL 33131

Attorney for Defendant

Eastern Airlines, Inc.

General Counsel

PBGC

(next page)

General Counsel

Pension Benefit Guaranty Corporation

1200 K. Street, N.W.

Washington, D.C. 20005

/s/

DANIEL GONZALES GELLERT

in pro se

P. O. Box 320270

Cocoa Beach, FL 32932

(407) 783-9412

24

LL pitta, | « = —————eoiOr Eee

Appendix

25

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 92-4091

DANIEL G. GELLERT,

Plaintiff-Appellant,

versus

EASTERN AIR LINES FLXED BENEFIT

RETIREMENT INCOME PLAN FOR PILOTS,

an employee benefit pension plan,

EASTERN AIRLINES, INC., solely as

Administrator of such defendant,

WILLIAM R. TEGTMAN, NOEL HONOHAN,

CHARLES COPELAND, JACK N. MOGUS,

ALAN G. GIBSON and PENSION BENEFIT

GUARANTY CORPORATION,

Defendants-Alleppees,

EASTERN AIRLINES PILOTS RETIREMENT BOARD,

ETC.,

Defendants.

Appeal from the United States District Court for the

Southern District of Florida

Filed November 20, 1992

Before FAY, DUBINA, and BLACK, Circuit Judges.

BY THE COURT:

26

The appellees’ motions to dismiss the appeal are

GRANTED. The district court's orders granting the

motion to dismiss of appellees Mogus and Copeland and

directing the entry of a final judgement in their favor are

not final and appealable because the district court did

not make the express determination that there was no

just reason for delay in the entry of judgement as re-

quired by Fed.R.Civ.P. 54(b). 28 U.S.C. Par. 1291; see

Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368-69

(11th Cir.) cert. denied, 464 U.S. 893 (1983). That is

especially true in this case since appellant has filed

amended complaints, which are presently pending in

the district court, attempting to reassert claims against

Mogus and Copeland. Accordingly, this appeal is DIS-

MISSED for lack of jurisdiction

EXHIBIT A

27

Excerpts from: © UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 90-1113-CIV-MOORE

DANIEL G. GELLERT,

Plaintiff,

VS.

EASTERN AIRLINES FLXED BENEFIT

RETIREMENT INCOME PLAN FOR PILOTS

et. al.,

Defendant

Filed Sept. 13, 1993

OMNIBUS ORDER ON PENDING MOTIONS

L MOTION TO DISMISS

Defendants William Tegtman and Alan Gibson

sought dismissal of Plaintiff's action against them be-

cause of their status as members of the Railway Labor

Act ("RLA") dispute board. Judge Federico A. Moreno

previously dismissed Plaintiff's action, with prejudice,

against several members of the RLA dispute board, i.e.

Jack Mogus and Charles Copeland because of that same

status. See Order of Judge Moreno, entered September

4, 1991 (citations omitted). Plaintiff alleges that Gibson

and Tegtman were members of the RLA dispute board. |

28

See Fourth Amended Complaint at Par. 15 and 16,

respectively. Accordingly, Defendants Tegtman and

Gibson are dismissed from this action with prejudice

consistent with the law of this case. Defendant's Motion

to Dismiss (DE #123) is GRANTED.

V. MOTIONS FOR SUMMARY JUDGEMENT

Plaintiff filed numerous motions for summary

judgement during the pendence of the motions to strike

the Third and Fourth Amended Complaints. Accord-

ingly, Plaintiff's Motions for Summary Judgement based

upon failure to respond to discovery or the Amended

Complaints are DENIED.

DONE AND ORDERED in chambers at the United

States Courthouse, Federal Courthouse Square, Miami,

Florida this 10th day of September, 1993.

/s/

K. MICHAEL MOORE

UNITED STATES DISTRICT

COURT JUDGE

cc:

Daniel Gellert, pro se

Counsel of Record

EXHIBIT B

29

Excerpt from:

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 90-1113-CIV-MOORE

DANIEL G. GELLERT,

Plaintiff,

VS.

EASTERN AIRLINES FIXED BENEFIT

RETIREMENT INCOME PLAN FOR PILOTS et.

= Defendants

Filed on April 14, 1994

OMNIBUS ORDER

The Court places the Plaintiff on notice that if he

files additional summary judgement motions without

leave he will be subject to sanctions, including the dis-

missal of his complaint.

ORDERED AND ADJUDGED as follows:

a Plaintiffs Motions for Summary Judgement

(DE #230); (DE #240); (DE#244); and (DE#252) is

hereby DENIED.

30

DONE AND ORDERED in Chambers at Miami,

Florida, this 15th day of April, 1994.

/s/

K. MICHAEL MOORE

UNITED STATES DISTRICT

JUDGE

copies provided:

Counsel of Record

EXHIBIT C

31

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 93-4928

IN RE:

DANIEL G. GELLERT,

Petitioner.

Filed Feb. 23, 1994

On Petition for Writ of Mandamus to the

United States District Court for the

Southern District of Florida

Before: ANDERSON, COX and BLACK, Circuit Judges.

BY THE COURT:

Petitioner's application for a writ of mandamus is

DENIED because petitioner has an adequate remedy by

appeal.

32 EXHIBIT D

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 93-4928

Filed July 8, 1994

IN RE:

DANIEL G. GELLERT,

Petitioner

On Petition for Writ of Mandamus to the

United States District Court for the

Southern District of Florida

BEFORE: ANDERSON, COX and BLACK, Circuit

Judges.

BY THE COURT:

Petitioner's "Suggestion of Rehearing In BANC,"

treated as a motion for reconsideration of this Court's

order dated February 23, 1994, denying his petition for

writ of mandamus, is DENIED.

EXHIBIT E.

33

USC

RAILWAY LABOR ACT

45 Par. 152

Eleventh Union security agreement; check-off

Notwithstanding any other provision of this chap-

ter, or of any other statute or law of the United States, or

Territory thereof, or of any State, any carrier or carriers

as defined in this chapter and a labor organization or

labor organizations duly designated and authorized to

represent employees in accordance with the require-

ments of this chapter shall be permitted --

(a) to make agreements, requiring, as a condition

of continued employment, that within sixty days follow-

ing the beginning of such employment, or the effective

date of such agreements, whichever is the later, all em-

ployees shall become members of the labor organization

representing their craft or class; Provided, That no such

agreement shall require such condition of employment

with respect to employees to whom membership is not

available upon the same terms and conditions as are

generally applicable to any other member or with respect

to employees to whom membership was denied or termi-

34

ployee to tender the periodic dues, initiation fees, and

assessments (not including fines and penalties) uni-

formly required as a condition of acquiring or retaining

membership

(b) to make agreements providing for the deduc-

tions by such carrier or carriers from the wages of its or

their employees in a craft or class and payment to the

labor organization representing the craft or class of

such employees, of any periodic dues, initiation fees,

and assessments (not including fines and penalties)

uniformly required as a condition of acquiring or re-

taining membership: Provided, That no such agree-

ment shall be effective with respect to any individual

employee until he shall have furnished the employer

with a written assignment to the labor organization of

such membership dues, initiation fees, and assess-

ments, which shall be revocable in writing after the

expiration of one year or upon the termination date of

the applicable collective agreement, whichever occurs

sooner.

EXHIBIT F.

Supreme Court of the United States

No. A-264

Daniel G. Gellert

Petitioner

Vv

United States District Court for the

Southern District of Florida

ORDER

UPON CONSIDERATION of the application of

petitioner,

IT IS ORDERED that the time for filing a petition

for a writ of certiorari in the above-entitled case, be and

the same is hereby, extended to and including December

5, 1994.

/s/

Anthony M. Kennedy

Associate Justice of the Supreme

Court of the United States

Dated this 17th

day of October, 1994.

EXHIBIT G

36

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