Petition for Writ of Certiorari — Lucille v. City of Chicago

Supreme Court, U.S.

FILED

(\)

941153 DEC 2 1 19%

OFFICE OF THE CLERK

NO:

IN THE

Supreme Court of the tinited States

OCTOBER TERM, 1994

JOHN LUCILLE,

Vv.

CITY OF CHICAGO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Thomas M. Arnett, Esq.

John Lucille, Pro se,

Counsel for Petitioner

1507 E. S3rd St.

No. 413

Chicago, IL 60615

(312) 684-5389

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

ics

QUESTIONS PRESENTED

Whether the Seventh Circuit

Court of Appeals erre in wielding a

fraudulent judgment order in its opinion

and at oral argument in derogation of the

settlement agreement when it was notified

that the judgment order was prepared to

the Petitioner, JOHN ULUCILLE’s’ [*"LU-

CILLE’s"] detriment by his former attorney

without the LUCILLE’s knowledge or approv-

al, where this fraud and other earlier

fraud were clearly mentioned in LUCILLE’s

Petition for Rehearing, filed pro se.

Whether the - Seventh Circuit

Court of Anpeals erred in extending

Kokkonen by holding that it and the dis-

trict court lacked jurisdiction to enforce

the terms of the settlement agreement,

that went into more detail than the judg-

ment order (which did not explicitly

itn

retain jurisdiction), where judgment is

actually entered against Respondent, CITY

OF CHICAGO ["CITY"], as opposed to the

case merely being dismissed pursuant to

settlement, and where the district court

has a separate continuing jurisdiction to

enforce the Shakman decree.

Whether the majority and concur-

ring opinions of the Seventh Circuit erred

in summarily rejecting the notion that the

parties could not have intended that the

term reinstatement to mean that LUCILLE

was to be put back in the position he

would have been just prior to discharge

with regard to leave and pension credits,

if not as if he had never been fired.

-iii-

TABLE OF CONTENTS

Page

Cena BPee@encea .....+.+-+e- i

Tap.e@ Gt: Authorities ........ iv

NE iy ee ae

Jurisdictional Statement .......2

RE ES

Reasons for Granting Certiorari ... 15

ee te ee a 3

TABLE OF CONTENTS OF THE APPENDIX App.

Page

August 3, 1994 Opinion and Judg-

ment of the Seventh Circuit. . 1

September 22, 1994 Order of the

Seventh Circuit denying

Petitioner’s ‘Petition for

Rehearing filed Monday,

maaee 25, 29094 ..-.. ... 29

December 30, 1993 Memorandum

Opinion of Judge Nordberg . . 21

January 18, 1990 Judgment Order

aa a

-iv-

TABLE OF AUTHORITIES

Page

Busa v. Barnes, 84 C 6525 (N.D.I1ll.

1990) » + * «6 6 eriiee sacra eee ane

Devil’s Lake Sioux Tribe v. State of

N.D. (8th Cir. 1990), 917 F.2d 1049 .36

Eckel v. Bynum (ist App. Dist.

1992), 240 I1l.App.3d 867, 608

N.E. 2d ph wy Pee, Peer ee Pr sh a ee ee

Hankins v. Finnel (8th Cir. 1992),

$64 F.26 653, $350 °0e 654 es ees

Hook v. Ariz. Dept. of Corr. (9th

Cir. 1992). $972.7. a ae eee: a a

Kokonnen v. Guardian Life Ins. Co.

(1994), ---U.S.----, 114 S.Ct.

1673, 1675-76, 126: 4.0. 2@:408 «5c .

21, 22 24

McCall-Bey v. Franzen (7th Cir. 1985),

777 F.2G1178, J06@6-90: c2nac4 . 2h, 25

Mercury Cleaning Systems Inc. v.

Manitowac Eng. Corp. (7th Cir.

1956) 255 2.20: 338 ee ea Se a rs

Rockdale Management Co. v. Shamut

Bank, N.A. (Mass. 1994), 418

Mass. 596, 638 N.E.2d 29, 31,

citing Hazel-Atlas Glass Co. v.

Hartford-Empire Co. (1944), 322

U.S. 238, 246, 88 L.Ed. 1250, 64

ie ee SO ne whew «+e SD

Shakman Consent Decree, 481 F.Supp.

1315, 1356-59 . 4, 6, 8, “6; 26, 27; 28

Skelly Oil v. Universal Oil (1st

App. Dist. 1949), 338 I11.App.

79, 86 N.E.2d 875, citing Hazel-

Atlas Glass Co. v. Hartford-

Empire Co. (1944), 322 U.S. 238,

246, 88 L.Ed. 1250, 64 S.Ct. 997,

1001 19

Sullivan v. Hochfelder (N.D.I1ll.

1993), 834 F.Supp. 1036, 1037-38 . . 23

United Steelworkers v. Libby, McNiell

& Libby (7th Cir. 1990), 895 F.2d 421,

423 Re ear eee eer ee eee

Williams v. Board of Regents (M.D.Ga.

1981), 90 F.R.D. 140, 143... a9, 32

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

JOHN LUCILLE,

Petitioner,

Vv.

CITY OF CHICAGO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The petitioner, John Lucille, re-

spectfully requests that a writ of cer-

tiorari issue to review the judgment and

opinion of the United States Court of

Appeals for the Seventh Circuit, entered

in the above proceeding on August 3, 1994,

and the September 22, 1994 denial of his

2

Petition for Rehearing.

OPINIONS BELOW

The opinion of the Court of Appeals

for the Seventh Circuit is reported at 31

F.3d 546, and is reprinted with that

Court’s judgment in the appendix hereto,

pp.1-7, infra. The memorandum opinion of

the district court denying the peti-

tioner’s Amended Petition to Enforce (1993

U.S. Dist. 188686 (N.D. Ill.)) is reprint-

ed in the appendix, pp. 21-37, infra.

JURISDICTIONAL STATEMENT

The District Court derived jurisdic-

tion pursuant to 28 U.S.C. Sections 1331,

1343(a) (3), and its inherent authority to

enforce and interpret its judgments. The

Seventh Circuit Court of Appeals derived

3

its jurisdiction pursuant to 28 U.S.C.

Section 1291, and this Court of last

resort derives jurisdiction pursuant to 28

U.S.C. Section 1254(1) to review and

entertain this Petition for Certiorari

filed (by mailing) within ninety days of

the September 22, 1994 order of the Sev-

enth Circuit denying the Petitioner’s

August 15, 1994 Petition for Rehearing.

STATEMENT OF THE CASE

The Petitioner, JOHN LUCILLE

["LUCILLE"], was employed by the Respon-

dent, CITY OF CHICAGO ["CITY"], in the

early 1960’s as a laborer in the Depart-

ment of Sewers. In the 1970’s LUCILLE was

elevated to the position of Assistant

Foreman of Cleaning in the Department. In

1980 LUCILLE became the first black dis-

4

trict foreman of cleaning in the Depart-

ment of Sewers. Throughout his employment

LUCILLE was listed as a discretionary

employee and unlike a few of his fellow

employees he did not have career service

Status from the CITY’s point of view.

Even the vast majority of the laborers

served at the whim of the commissioner,

Edward Quigley, the mayor, and their

service to the regular Democratic organi-

zation. The CITY consented to the entry

of the Shakman Decree, 481 F. Supp. 1315,

1356-59, where said proceedings had been

instituted to combat the patronage system

entrenched in the City.

In 1983 LUCILLE did not support

Harold Washington in the mayoral primary,

but rather supported Jane Byrne, consis-

tent with the regular Democratic Organiza-

tion in his West-side neighborhood. After

4 we S.

Pe Ne ne cyan SAT eG

5

Harold Washington was elected, in 1984, as

part of an appropriations ordinance, a

six-month one-time city-wide probation was

offered thousands of discretionary employ-

ees. If they were not discharged during

this probation they became career-service

employees entitled to a pre-termination

hearing.

ward the end of this probation

LUCILLE and from between 300 to 600 other

employees were cischarged. Much litiga-

tion followed. There is some doubt wheth-

er these employees were discharged prior

to the end of the probation what with the

CITY’s practice of giving discharged

employees their accumulated vacation time

and the fact that that practice was not

observed for most of these employees.

Further there is some doubt whether the

ordinance was finally passed prior to the

6

start of the probation, and the employees

were not informed of the January 1, 1984

beginning of the probation until January

10, 1984 after it started. Further, the

terms and criteria for evaluating proba-

tioner, as set out in the January 10, 1984

letter, was not followed, and probably was

changed from time to time without inform-

ing the employees. And lastly LUCILLE, a

supervisor, was at a meeting where the

then Commissioner of the department stated

that if the supervisors wanted to keep

their jobs they better get out and write-

up their subordinates because the CITY was

not going no 800 department employees to

make career service.

This proceeding was initiated in

1985 as an enforcement and contempt pro-

ceeding under the Shakman Consent Decree

by the filing of a Petition for Rule to

4

Show Cause as the initial pleading rather

than a complaint at law. After LUCILLE

started to proceed pro se, and made alle-

gations of fraud with regard to how the

CITY conducted this probation and how it

conducted itself in the federal court,

LUCILLE’s claim under the Shakman Decree

was settled on the eve of trial pursuant

to a settlement agreement. LUCILLE was to

receive reinstatement as a foreman, with

seniority back to 1980 when he made fore-

man, and $21,000 cash.

Unbeknownst to him, his former

attorney, Steven Sosman, who was still

representing two co-Plaintiffs, prepared

and submitted a judgment order, app. p.

, that entered judgment against the CITY

for $21,000, $4,000 more for Sosman’s

prior work, plus reinstatement as a career

service employee, which the Judge John

8

Nordberg signed. The judgment order which

mentioned the term reinstatement but left

out the retroactive seniority language.

The judgment order also did not have any

release language in it. The judgment

order states that it is entered in accor-

dance with the settlement agreement signed

by the parties, but contains no other

language expressly reserving jurisdiction

to enforce the settlement agreement that

was to resolve LUCILLE’s claims under the

Shakman Decree.

The District Court and the

parties assumed that the District Court

had the power to enforce and interpret the

settlement agreement in this Shakman

matter. LUCILLE stated that prior to

interpreting the release language in the

settlement agreement the district Judge

Nordberg needed to determine what rein-

9

statement entailed and that LUCILLE should

at least to brought back to the point he

had been just prior to discharge, as well

as given the time that would have accumu-

lated to him had he not been discharged.

LUCILLE made similar claims for pension

credits. LUCILLE cited to the courts

below another closely related case involv-

ing another CITY Sewer Department worker

discharged after the same 1984 city-wide

probation, and where the CITY was repre-

sented by the same assistant corporation

counsel, Mary L. Smith, Judge Norgle

initially concluded that Busa was clearly

entitled to immediately use the vacation

time he had accumulated prior to his

discharge, after noting that said assis-

tant corporation counsel conceded that

Busa was entitled to the time. And upon

reconsideration on the CITY’s motion which

ae

ou mr vi - =

10

cites the release language in an essen-

tially identical settlement agreement,

Judge Norgle decided that what the parties

meant was ambiguous and set the matter

down for an evidentiary hearing. Prior to

the trial thereon the CITY and Busa set-

tled their dispute. In light of an init-

ial holding and definition of reinstate-

ment with regards to accumulated vacation

time by Judge Norgle in Busa v. Barnes, 84

C 6525 decided by Judge Norgle, LUCILLE,

and his counsel, focused on the time and

pension benefits he had accumulated just

prior to his 1984 discharge.

LUCILLE also brought out in his

initial and amended Petitions to Enforce

the Settlement Agreement that during the

settlement negotiations after LUCILLE was

pro se, the CITY attorney sent him a

letter summarizing the parties positions,

p ®

both of which mentioned reinstatement with

full seniority and benefits, and that the

"and benefits" language was left out of

the settlement agreement without negotia-

tion and without LUCILLE knowledge. This

LUCILLE claimed was trickery by an attor-

ney in a case and a fraud upon him and the

court.

As a fall back position, consis-

tent with Judge Norgle’s later ruling that

a nearly identical settlement agreement in

Busa v. Barnes, 84 C 6525, was ambiguous,

LUCILLE asserted that he was entitled to

an evidentiary hearing to determine the

parties’ intent as to the term reinstate-

ment, and its impact on accrued time as

set forth in an ambiguous’ settlement

agreement, to the extent that they had

discussed it at all, as well as regarding

the CITY’s removal of the term "and bene-

12

fits" from the negotiation without discus-

sion. LUCILLE also claimed that as to

Matters not litigated or discussed, the

release language, however broad, did not

apply.

The district court instead

adopted the CITY’s position that the

settlement agreement was not ambiguous and

that the release language was controlling

and in a memorandum opinion, set out in

the appendix, pp. 21-37, denied LUCILLE’s

Amended Petition to Enforce without any

kind of evidentiary inquiry. Judge

Nordberg did not address LUCILLE’s claim

that he was tricked by opposing counsel,

or that the release language did not apply

as to claims not litigated or discussed.

Judge Nordberg did, however, make clear in

his opinion that LUCILLE was seeking both

the time and pension credits he had accu-

13

mulated previous to his discharge as well

as the time he would have accumulated but

for his discharge. LUCILLE appealed to

the Seventh Circuit, 94-1106.

LUCILLE, and his counsel on

appeal, never knew about the judgment

order prepared by the attorney he had

previously fired, Steven Sosman, and its

differences from the settlement agreement,

until oral argument, well after the briefs

had been filed. Only then did it become

apparent that such a document had been

prepared and submitted by Sosman, and

Signed by Judge Nordberg. Judge Easter-

brook focused on these differences, and

the lack of clear language in the judgment

indicating that the district court intend-

ed to eeedin: jurisdiction. LUCILLE’s

counsel on appeal clearly told the appel-

late panel on rebuttal that Sosman was not

14

LUCILLE’s attorney at the time he prepared

and submitted the judgment order. This

important information was ignored by the

appellate court, as is clear from the

"facts" its sets out in its August 3, 1994

opinion (app. pp. 1-16), per Judge

Easterbrook, which affirmed the district

court’s denial of LUCILLE’s petition. On

Monday, August 15, 1994 LUCILLE clearly

mentioned in his Petition for Rehearing,

prepared pro se, that he had fired Sosman

prior to the submission and entry of the

judgment order and did not know about

LUCILLE’s Petition for Rehearing was

denied on September 22, 1994, app. pp.

19-20.

15

REASONS FOR GRANTING CERTIORARI

THE SEVENTH CIRCUIT COURT OF

APPEALS ERRED IN WIELDING A FRAUDULENT

JUDGMENT ORDER IN ITS OPINION AND AT ORAL

ARGUMENT IN DEROGATION OF THE SETTLEMENT

AGREEMENT WHEN IT WAS NOTIFIED THAT THE

JUDGMENT ORDER WAS PREPARED TO THE PETI-

TIONER, JOHN LUCILLE’ S ("LUCILLE’ S"]

DETRIMENT BY HIS FORMER ATTORNEY WITHOUT

THE LUCILLE’S KNOWLEDGE OR APPROVAL, WHERE

THIS FRAUD AND OTHER EARLIER FRAUD WERE

CLEARLY MENTIONED IN LUCILLE’S PETITION

FOR REHEARING, FILED PRO SE.

LUCILLE, through appellate

counsel, unequivocally stated that Sosman

had been previously fired by LUCILLE, and

that he was pro se at the time that the

judgment order was submitted by Sosman and

16

signed by the District Court. Sosman

never came back on as LUCILLE’s attorney,

as confirmed by the entries in the docket

sheets. Sosman submitting a judgment

order that the trial court signed without

LUCILLE’s knowledge and consent and which

failed to expressly retain jurisdiction or

to contain important terms of the settle-

ment agreement (such as reinstatement

retroactive seniority back to 1980), was a

fraud upon the court and upon LUCILLE. In

the recent Illinois case of Eckel v. Bynum

(lst App. Dist. 1992), 240 I1l.App.3d 867,

608 N.E.2d 167, 178 the court remanded the

case for an evidentiary hearing as to the

defendant’s purported attorney’s actual

authority with instructions stating that

if said attorney was in fact authorized to

represent her then the judgment of fore-

closure entered against her interest in

17

certain realty was void [emphasis added].

Here there is not even apparent authority

on the part of Sosman, who was later

disbarred for other reasons, inasmuch as

Judge Nordberg had previously given Sosman

leave to withdraw at LUCILLE’s request.

Sosman had a vested interest in

having the judgment order improperly

entered in that it formally entered judg-

ment against the CITY for $4,000 in

attorney’s fees for his prior representa-

tion of LUCILLE. The judgment is in fact

void, and can be attacked directly or

collaterally in any court, even this one.

In addition to stating at oral

argument that Sosman was in fact not

LUCILLE’s attorney at the time he submit -

ted the judgment order, (AP. 39) the fact

that the judgment order was improperly

submitted by LUCILLE’s former attorney was

18

a part of his Petition for Rehearing. The

Seventh Circuit turned a completely deaf

ear to the point of seriously misstating

the facts in its opinion by failing to

address the obvious issue of fraud, which

the Seventh Circuit first made an issue of

at oral argument by focusing on the dif-

ferences between the improperly entered

judgment order and the settlement agree-

ment, and by refusing to enforce and

interpret the latter.

The trial court and the Seventh

Circuit erred in failing to address these

issues of fraud (including the assertion

by LUCILLE that Mary Smith tricked him by

taking out "and benefits"), and in failing

to afford LUCILLE an evidentiary hearing

to get to the bottom of his claims of

fraud.

Fraud perpetrated by an attor-

Pe, Rh Seek i aig RE A he

19

ney, as an officer of the court, is fraud

upon the Court. Williams v. Board of

Regents (M.D.Ga. 1981), 90 F.R.D. 140,

143. The judgment order is in fact void

and for the Seventh Circuit to rely upon

it when put on notice of the facts showing

that it was improperly entered by

LUCILLE’s former attorney is egregious and

Clear reversible error. Clearly in this

case the judgment order reaches to the

very core of the court as an institution

of justice. See, Rockdale Management Co.

Vv. Shamut Bank, N.A. (Mass. 1994), 418

Mass. 596, 638 N.E.2d 29, 31, and Skelly

Oil v. Universal Oil (ist App. Dist.

49457) ,.. 338 Ill.App. 79, 86 N.E.2d 875,

both citing Hazel-Atlas Glass Co. v.

Hartford-Empire Co. (1944), 322 U.S. 238,

246, 88 L.Ed. 1250, 64 S.Ct. 997, 1001.

LUCILLE has consistently main-

ST a el ee

20

tained since November 24, 1989, R82 & R83

that the CITY has engaged in a continuing

fraud upon the court in contending during

various cases that the criteria for imple-

menting the six-month Probation (from Jan.

1, 1984 through June 30, 1984) as to all

the old then discretionary employees city-

wide was supposedly controlled by a May 3,

1984 memorandum from the director of

~personnel which LUCILLE, as a district

foreman, contends was never sent out, and

was certainly not sent out to the employ-

ees subject to the probation. LUCILLE has

consistently maintained that the CITY’S

conduct in all these cases emanating from

the mass 1984 firing has be effected by

fraud.

r SR

21

THE SEVENTH CIRCUIT COURT OF

APPEALS ERRED IN EXTENDING AND MISINTER-

PRETING KOKKONEN IN HOLDING THAT IT AND

THE DISTRICT COURT LACKED JURISDICTION TO

ENFORCE THE TERMS OF THE SETTLEMENT AGREE-

MENT, THAT WENT INTO MORE DETAIL THAN THE

JUDGMENT ORDER (WHICH DID NOT EXPLICITLY

RETAIN JURISDICTION), WHERE JUDGMENT IS

ACTUALLY ENTERED AGAINST THE RESPONDENT AS

OPPOSED TO THE CASE MERELY BEING DISMISSED

PURSUANT TO SETTLEMENT, AND WHERE THE

DISTRICT COURT HAS A SEPARATE CONTINUING

BASIS FOR JURISDICTION IN ENFORCING THE

SHAKMAN DECREE.

At oral argument Judge

Easterbrook brings up the recent decision

Of Kokonnen v. Guardian Life Ins. Co.

(1994), ---U.S.----,---- - --, 114 S.Ct.

1673, 1675-76, 128 L.Ed.2d 391. At that

time LUCILLE’s attorney stated that he did

AEST ae SIREN ON NN Pooeen

22

not think that it was controlling because

here a judgment was entered against the

CITY and because there is continuing

jurisdiction to enforce the Shakman De-

cree. Judge Easterbrook then states that

LUCILLE does not wish to enforce the

decree, but rather his settlement agree-

ment. But, for the purposes of jurisdic-

tion, if the district court could sua

sponte declare what reinstatement entailed

for all employees, pursuant to its contin-

uing jurisdiction to enforce and interpret

the decree, it has to have jurisdiction to

make a determination as to LUCILLE.

Neither the majority nor concur-

ring opinions recognize that neither

McCall-Bey, 777 F.2d 1178, nor Kokkonen

have any applicability where judgment is

entered against the defendant CITY. Both

case involved the dismissal (rather than

23

the completion) of a case pursuant to a

Settlement. A federal district court has

inherent ancillary jurisdiction to en-

force, interpret, protect, or give effect

to its judgments and decrees, including

those entered by consent.

Dept. of Corr.

1012, 1014. Enforcing

federal court judgments are su

related to the original action for the

district court to have ancillary jurisdic-

tion over said claims. Hankins v. Finnel

(8th Cir. 1992), 964 F.2d 853, 859-60;

Sullivan v. Hochfelder (N.D.I1ll. 1993),

834 F.Supp. 1036, 1037-38. Whereas en-

forcing or interpreting a_ settlement

agreement after the case is dismissed

pursuant thereto, and where the dismissal

order does not reserve jurisdiction, has

been held to be a wholly independent

24

action not sufficiently related to the

prior case to give the district court

jurisdiction over the later controversy.

Kokkonen 114 g.ce. Weta. 1675-76, 128

L.Ed.2d 391; United Steelworkers V. Libby,

McNiell & Libby (7th Cir. 1990), 895 F.2d

421, 423.

The majority opinion even quotes

the settlement agreement that it refuses

to enforce or interpret. Where there are

substantial and improper omissions in the

judgment order as compared to the settle-

ment agreement, for the Seventh Circuit to

enforce and/or interpret the former but

not the latter, works a great injustice,

and makes a mockery of the parties’ in-

tent, as more thoroughly spelled out in

the settlement agreement, even if that is

ambiguous. Such a resolution simply fails

to render complete justice. Its interpre-

25

tation of the meaning of the judgment

order is probably res judicata. Now, even

if a state court in a breach of contract

action might agree with LUCILLE as to the

meaning of the settlement agreement as

applied to leave and pension credits, it

would probably seriously hesitate if its

Opinion would conflict with the federal

appellate court’s interpretation of the

judgment order alone on those points.

The concurring opinion states

that the language in the judgment order

"entered in accordance with the settlement

agreement," is almost identical to the

language in McCall-Bey, 777 F.2d 1178,

1188-90 (7th Cir. 1985) which was deemed

barely sufficient to bring into play the

district court’s ancillary jurisdiction.

LUCILLE submits that the concurring judge

was correct in concluding that the settle-

26

ment agreement was sufficiently incorpo-

rated into the judgment order. However,

since judgment was actually entered

against the CITY (as opposed to merely a

dismissal of the suit) such incorporation

should not be required.

Here, an independent basis of

jurisdiction resides in the district court

in that it has continuing jurisdiction to

enforce the Shakman Consent Decree, 481

F.Supp. 1315,.. 1356-57. Before LUCILLE

brought his claim under the Shakman decree

to the district court’s attention initial-

ly, via a Petition for Rule to Show Cause

(rather than a complaint at law), and

after LUCILLE was reinstated to his posi-

tion with the CITY, there was continuing

jurisdiction to enforce the Shakman de-

cree. It should not be said that the

district court lacked the jurisdiction to

27

entertain LUCILLE’s Amended Petition to

Enforce.

For the appellate court to

condition LUCILLE’s ability to enforce and

interpret the judgment order and settle-

ment agreement as to the meaning of the

term reinstatement upon the repayment of

the $21,000 he received (and the $4,000

his former attorney received) ignores the

fact that the case was never dismissed

pursuant to settlement and that there is

continuing jurisdiction to enforce the

Shakman Consent Decree emanating from the

Original Shakman case.

The Seventh Circuit erred in

determining that the district court had no

jurisdiction to enforce or interpret the

settlement agreement in what had always

been a Shakman decree enforcement case

where the CITY agreed to have judgment

28

entered against it (rather than the case

being dismissed pursuant to settlement) .

From the facts in said Amended

Petition it is sufficiently unclear when

the CITY finally deprived LUCILLE of his

leave and/or pension credits (perhaps well

after his reinstatement) to probably state

a new Shakman violation. This is a fur-

ther basis of jurisdiction premised upon

the district court’s continuing jurisdic-

tion to police the Shakman Consent Decree.

THE MAJORITY AND CONCURRING

OPINIONS OF THE SEVENTH CIRCUIT ERRED IN

SUMMARILY REJECTING THE NOTION THAT THE

PARTIES COULD NOT HAVE INTENDED THE TERM

REINSTATEMENT TO MEAN THAT LUCILLE WAS TO

BE PUT BACK IN THE POSITION HE WOULD HAVE

BEEN JUST PRIOR TO DISCHARGE WITH REGARD

TO LEAVE AND PENSION CREDITS, IF NOT AS IF

HE HAD NEVER BEEN FIRED.

29

For the Seventh Circuit majority

Opinion to state that "most lawyers use

reinstatement..." does not shed any light

on what the parties meant by the term in

this case, where LUCILLE was pro se and

where the judgment order was most improp-

erly prepared by his former attorney. In

fact Judge Norgle’s contrary initial

conclusions in a very similar circumstance

in Busa v. Barnes, 84 C 6525 (N.D.1Ill.

1990) is much more telling. The term

reinstatement in this case should mean at

a minimum that upon his reinstatement

LUCILLE is restored the accumulated time

off and pension credits that he had either

at the time of his discharge, or at the

time he made district foreman since he

is being reinstated with retroactive

seniority back to that time.

Even if one is just to look at

30

the judgment order (Ap. 39) as an initial

matter, what effect the term reinstatement

with career service has on LUCILLE’s claim

that it included the restoration of his

accumulated time off and pension credits

is sufficiently unclear for the settlement

agreement to also be considered. Both the

documents, including their differences,

are sufficiently unclear that both the

trial and appellate courts erred in deny-

ing LUCILLE a hearing on the matter.

—

The Seventh Circuit’s concurring

opinion failed to consider that LUCILLE

might well be entitled to the restoration

of the accumulated time off and pension

credits (at least to those contributed by

the CITY) that he had at the time of his

discharge, even if the term reinstatement

cannot, under the circumstances, be fairly

interpreted as meaning that LUCILLE is

31

entitled to the restoration of these

things as if he had never been discharged

at all.

Reinstatement with seniority

back to 1980 (well prior to the 1984

firing), as set out in the settlement

agreement, either Clearly means that

LUCILLE is entitled to the paid time off

and other benefits that he had accumulated

up until that time, or the settlement

agreement is ambiguous given the release

language it also contains. If the latter

is the case, LUCILLE is entitled to a

hearing to determine the parties’ meaning

and intent. When determining the parties’

intent it is worth noting that in the Busa

case the same assistant corporation coun-

sel that settled LUCILLE’s case did not

contest that Busa was entitled to the

vacation time he had accumulated at the

32

time of his discharge,

Both the majority and concurring

opinions state that LUCILLE took the

position that the term reinstatement meant

that he was entitled to leave and pension

credits as if he had never been dis-

charged. The ' district court’s opinion

makes clear that LUCILLE first asked to

have the time and pension credits restored

to him that he had accumulated just prior

to his discharge, see App. page. 32.

LUCILLE stated this at oral argument as

well.

Even the concurring opinion

fails to address the question of further

question of the accumulated time off and

pension credits LUCILLE had had at the

time of his discharge. Just because a

court concludes that the $21,000 settle-

ment precludes LUCILLE from laying claim

oor eee

33

to time off and pension credits that he

would have accumulated during the period

of his discharge, that does not mean that

the same payment also forecloses the

restoration of accumulated time off and

pension benefits that LUCILLE had had at

the time of his discharge, given that he

is being reinstated to his position with

retroactive seniority pursuant to the same

settlement.

Neither the concurrence nor the

Majority recognizes this distinction

previously made to them by LUCILLE in

reaching their summary conclusions and

neither one comes to grips with Judge

Norgle’s considered conclusions on almost

identical facts.

The trial court and the Seventh

Circuit erred in deciding that the term

reinstatement was so clear that LUCILLE

- —_ — —

6 EGE VOSA PLLA DLE LLRILD IE LEO ELE LE MELE RS IIE PEA AS SIDS SOME AR Sasa GARNER NATO

—_ - . ee anne a aie eee ae -

34

was not entitled to an evidentiary hearing

regarding whether he was entitled to use

the time off he had accumulated prior to

his 1984 discharge.

The trial court erred in con-

cluding that the release language was

controlling without allowing LUCILLE to

show (1) that the issue of what to do

about time off that LUCILLE had accumulat-

ed prior to his discharge was not actually

litigated or discussed in settling the

case, (2) that Mary Smith left the term

"and benefits" out of the settlement

agreement without any negotiation, and (3)

that LUCILLE was not finally deprived of

his accumulated time off until after his

reinstatement. The release language

cannot serve to bar a claim that has not

even arisen at the time.

LUCILLE, who was pro se when he

35

settled his case, should have been allowed

to show in the district court in that Mary

Smith tricked him in leaving out the words

"and benefits" from the settlement agree-

ment, and that that misconduct by an

attorney, along with the preparation of a

improper judgment order by LUCILLE’s

former attorney, which omitted certain

additional crucial terms, constituted

fraud upon the court. Williams v. Board

Of Regents (M.D.Ga. 1981), 90 F.R.D. 140,

143.

Where an issue is not actually

litigated or discussed, ie. what to do

about the accumulated time off and pension

benefits that LUCILLE had at the time of

his discharge, as contrasted with his

Salary and vacation time during the period

of his discharge for which LUCILLE re-

ceived $21,000, even broad release lan-

36

guage does not bar a subsequent claim.

Devil’s Lake Sioux Tribe v. State of N.D.

(sth Cir. 1990), 917 F.2d 1049; Mercury

Cleaning Systems Inc. v. Manitowac Eng.

Corp. (7th Cir. 1958) 255 F.24 318. The

trial court erred in concluding without an

evidentiary inquiry that’ the release

language in the settlement agreement

barred LUCILLE’s claims, and the Seventh

Circuit erred ie tes reversing the dis-

trict court.

That is particularly true if the

CITY could have given LUCILLE his accumu-

lated time off back after his reinstate-

ment, but chose not to for political

reasons. The trial court erred in stating

that the pleadings and supporting briefs

failed to state a new Shakman violation,

and the Seventh Circuit erred in not

reversing the trial court.

37

CONCLUSION

For the foregoing reasons,

particularly fraud upon the trial and

appellate courts, this Court should grant

this petition for certiorari.

Respectfully submitted,

Thomas M. Arnett, Esq.

John Lucille, pro se

aoU7 B&B, S3rd St.

No. 413

Chicago, IL 60615

(312) 684-5389

Counsel for

Petitioner

ee

a aE ESE Be aa Bae

‘ App. 1

' IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 94-1106

JOHN LUCILLE,

Plaintiff-Appellant,

v.

CITY OF CHICAGO,

Defendant -Appellee.

Appeal from the United States District

Court for the Northern District of I1li-

nois, Eastern Division. No 85 C 5956 -

Judge John A. Nordberg, Judge.

Argued July 7, 1984--Decided August

3, 994

Before CUDAHY, FLAUM, and

EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

if 5

App. 2

In 1985 John Lucille sought to

have the City of Chicago held in contempt

of court for violating the consent decree

in Shakman v. Democratic Organization of

Cook County, 481 F.Supp. 1315 (N.D. Ill.

1979), by considering his politics when

deciding to discharge him from employment.

In December 1989 the parties settled their

differences. The City agreed to reinstate

Lucille and pay $25,000 ($21,000) for

Lucille and $4,000 for his lawyer. The

district court entered a judgment, drafted

by Lucille’s lawyer, containing some but

not all of the terms of the settlement

agreement. Four years later Lucille filed

a petition to "enforce" the settlement

agreement--not the. judgment, but’ the

contract between the parties.

App. 3

Lucille contended that the City should

bate awarded him vacation, holiday, and

Sick pay that would have accrued by 1990

(when he was reinstated) had he been

employed continuously, and that the City

owed him $58,000 to top up his pension

benefits ($48,000 to replace funds Lucille

withdrew when he was, plus $10,000 to

facilitate early retirement). The dis-

trict court concluded that the settlement

agreement does not support Lucille and

denied the petition. 1993 U.S. Dist.

LEXIS 188686 (N.D. Ill.).

Although McCall-Bey v. Franzen,

777 F.2d 1178 (7th Cir. 1985), held that a

district court may not enforce a

settlement agreement unless there is an

independent basis of federal jurisdiction,

App. 4

the district judge did not discuss this

initial hurdle. Lucille and the City are

not of diverse citizenship. McCall -Bey

disposes of the contention that just

because the initial suit sought to vindi-

cate a federal right, the court possesses

federal-question jurteaiecien under 28

U.S.C. Sec. 1331 to construe and enforce a

contract ending the litigation. Cr

Morgan v. South Bend Community School

Corp., 797 F.2d 471 (7th Cir 1986). Since

the parties exchanged briefs on the ap-

peal, the Supreme Court has agreed with

McCall-Bey that federal courts lack "in-

herent" power to enforce settlements of

federal litigation, explaining that

"{e]nforcement of [a] settlement agreement

is more than just a continuation or

App. 5

renewal of the dismissed suit, and hence

requires its own basis of jurisdiction."

Kokkonen v. Guardian Life Insurance Co.,

oe ee Pas = eee Pe FF 1675-76 (1994)

The Shakman consent decree rests

on 28 U.S.C. Sec. 1343(a) (3), which grants

jurisdiction to enforce the civil rights

laws. Kokkonen held open the possibility

that a party aggrieved by a breach of a

settlement agreement could seek to annul

the settlement and reactivate the original

case, with its jurisdictional footing

intact. 1145S. Ct. at 1675. Lucille does

not want to start anew, however. Rescis-

sion would require him to tender at —

the $25,000, which he has not offered to

do. See Fleming v. United States Postal

Service, No. 92-2735 (7th Cir. June 16,

App. 6

1994). He has no desire to surrender the

benefits of the settlement and prove in

1994 that his discharge in 1984 rested on

Criteria forbidden by the first amendment;

he wants to enforce the 1989 contract, not

the Shakman decree.

What about ancillary jurisdic-

tion? Kokkonen eliminates any contention

that enforcing a settlement of federal

litigation automatically comes within the

ancillary jurisdiction. "No case of ours

asserts, nor do we think the concept of

limited federal jurisdiction permits us to

"assert, ancillary jurisdiction over any

agreement that has as part of its consid-

eration the dismissal of a case before a

federal court." 114 S.Ct. at 1675-76. The

Justices observed, however, that a federal

App. 7

court has ancillary jurisdiction to

protect and enforce its judgments. Thus

if the judgment explicitly incorporates

the terms of the settlement, or reserves

authority to enforce the settlement, the

court possesses ancillary jurisdiction.

Id. at 1677. We concluded in McCall-Bey

that the court also possesses jurisdiction

if the judgment implicitly incorporates

the terms of a settlement that itself

provides for continuing jurisdiction. 777

F.2d at 1188-89. But the district court’s

judgment in this case does not incorporate

the settlement or reserve power to enforce

the parties’ agreement. Instead it sets

out the principal terms, directing Chicago

to pay $25,000 and reinstate Lucille.

Having put some but not all of the terms

App. 8

in the judgment, the district court has

identified which it will enforce and which

it will not. Violation of terms which are

not in the judgment cannot be thought to

flout the court’s order or imperil the

court’s authority, and claims of such

violations therefore do not activate the

ancillary jurisdiction of the court. And

although the judgment recognizes the

parties’ settlement, this case differs

from McCall-Bey because neither the judg-

ment nor the settlement so recognized

reserves jurisdiction to enforce the terms

of the settlement.

Lucille relies on a provision in

the settlement agreement requiring rein-

Statement with "seniority . . . retro-

active to July 16, 1980," which he be-

App. 9

lieves entails an entitlement to extra

leave credits and contribution of pension

funds sufficient to permit him to take

early retirement as if he had been at work

during the intervening years. Chicago

relies on a clause extinguishing "All

claims for salary, accumulation of vaca-

tion days, sick days and other benefits of

employment" to which Lucille would have

been entitled had he been continuously

employed. Neither of these provisions

made it into the judgment. Terms amount -

ing to a release may be enforced in feder-

al court as a defense, if the dispute is

within federal jurisdiction, but a release

does not create that jurisdiction. Doubt -

less the contract provides a context for

interpretation of the judgment. Ambigu-

App. 10

ities in the court’s order should be

resolved consistently with the more de-

tailed provisions of the parties’

bargain. But Lucille does not contend

that any terms of the judgment is ambigu-

ous--indeed Lucille’s brief does not

mention the judgment.

The only potential ambiguity we

could find is in the judgment’s closing

words: "John Lucille shall be further

afforded career service up upon reinstate-

ment to that position." Does "career

service" entail retroactive leave and

pension credits? At oral argument

Lucille’s lawyer said that is does not,

and the settlement agreement confirms this

understanding. Paragraph B of the settle-

ment reads:

ES i a ig et ie a pee yi

App. 11

On or before January 16, 1990,

the City shall reinstate Plaintiff to

the position of Foreman of Sewer

Cleaning with the City of Chicago,

Department of Sewers. Plaintiff shall

be afforded seniority in that title

retroactive to July 16, 1980, and

shall further be afforded career ser-

vice status upon said reinstatement to

that position.

Thus the parties understood "seniority

retroactive to July 16, 1980" and "ca-

reer service status" as different things.

Lucille relies on the former, but only the

latter is to be found in the judgment.

Although Lucille contends that vacation

and pension credits come with any

"reinstatement," we join the district

App. 12

judge in rejecting that position. Most

lawyers use reinstatement to refer to a

renewal of employment. Additional bene-

fits such as back pay and fringe benefits

that would have accumulated during time

missed (or were lost on discharge) are

negotiated and provided for separately.

The district court possessed

ancillary jurisdiction to interpret and

enforce its judgment; it lacked jurisdic-

tion to interpret and enforce the con-

tract. All we need consider, then, are

the provisions of the judgment. For

reasons we have covered, that judgment

affords Lucille no comfort. The decision

denying his petition for additional relief

is therefore affirmed

AFFIRMED.

yy

Be.

App. 13

CUDAHY, Circuit Judge, concurring. I

agree with much of the analysis and with

the result reached by the majority opin-

ion, but write separately with respect to

one interpretation that the majority does

not pursue. The majority states that "the

district court’s judgment in this case

does not in corporate the settlement

= But the Judgment Order by its own

terms "is entered in a accordance with the

Settlement Agreement which has been signed

a by all parties ..." It is not much of

a stretch to construe "entered in accor-

dance with" as language of incorporation.

In fact, in McCall-Bey v. Franzen, 777

F.2d 1178 (7th Cir. 1985), an opinion the

majority describes as portending (and

approved by) the Supreme Court’s recent

App. 14

opinion in Kokkonen v. Guardian Life

Ins. Co., 114 S. Ct. 1673 (1994) we held

that a judgment entered "pursuant to” a

settlement agreement incorporated that

agreement. Kokkonen is silent as to what

words a district court must use to incor-

porate a settlement agreement, and I see

no reason to depart (as the majority

appears to) from our approach in McCall-

Bey.

In any event, one of Lucille’s

principal arguments involves interpreta-

tion of the word "reinstatement" from the

settlement agreement. He says that this

means he is entitled to leave and pension

credits, essentially restoring his situa-

tion to what it would have been had he not

been discharged. But the judgment does

App. 15

say he is to be "reinstated." So it seems

to me that the same argument as to the

meaning of "reinstate" survives under any

analysis.

Since I agree with the district

court that "reinstate" was not intended to

mean what Lucille claims it means, I agree

that the City prevails and the district

court should be affirmed.

A true Copy:

Teste:

Clerk of the United States Court of Ap-

peals for the Seventh Circuit

App. 16

Chicago, Illinois 60604

App. 17

United States Court of Appeals

for the Seventh Circuit

Chicago, IL 60604

JUDGMENT _- WITH ORAL ARGUMENT

Date: August 3, 1994

Before: Hon. Richard D. Cudahy, Judge

Hon. Joel M. Flaum, Circuit Judge

Hon. Frank H. Fasterbrook, Cir. Judge

No. 94-1106

John Lucille, Plaintiff-Appellant v-

City of Chicago, an Illinois Municipal

Corporation, Defendant -Appellee

Appeal from the United States Dis-

trict Court for the Northern District of

Illinois, Eastern Division, Case No. 85 ¢

5956, John A. Nordberg, Judge.

The judgment of the District Court is

AFFIRMED, with costs, in accordance with

App. 18

the decision of this court entered on this

date.

App. 19

United States Court of Appeals

for the Seventh Circuit

Chicago, IL 60604

Date: September 22, 1994

Before

Hon. Richard D. Cudahy, Circuit Judge

Hon. Joel M. Flaum, Circuit Judge

Hon. Frank H. Easterbrook, Judge

No. 94-1106

John Lucille, Plaintiff-Appellant,

v. City of Chicago, Defendant -Appellee.

; Appeal from the United States Dis-

trict Court for the Northern District of

Illinois, Eastern Division. No. 85 C 5956

John A. Nordberg, Judge.

Order

Plaintiff-Appellant filed a petition for

rehearing on August 15, 1994. All of the

App. 20

judges on the panel have voted to deny

rehearing. The petition for rehearing is

therefore DENIED.

i " Moree 3 j

Ee OM TS OS PR ae EON St

peepee S|

ogi ee fees ASB eed a

App. 21

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

JOHN LUCILLE, et al.,

Plaintiffs,

Vi No. 85 C 5956.

CITY OF CHICAGO, et oo

Defendants.

John A. Nordberg, Judge

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff

John Lucille’s Amended Petition to Enforce

Terms and Conditions of the Settlement

Agreement.

FACTS

In June 1984, the Defendant, the

City of Chicago, terminated Plaintiff from

his employment with the City’s Department

LE ae OP TI Be le ag ye

App. 22

of Sewers. Subsequently, Plaintiff filed

an action pursuant to 42 U.S.C. Sec. 1983

alleging that his termination was unlaw-

ful. On December 15, 1989, the Plaintiff

and the Defendant entered into a Settle-

ment Agreement. (Plaintiff’s Memorandum;

Exhibit A).

As part of the Settlement Agree-

ment, Defendant agreed to reinstate Plain-

cite to the position of Foreman of Sewer

Cleaning with the City’s Department of

Sewers. (Exhibit A, p. 6) In the same

paragraph, the Settlement Agreement stipu-

lated that Plaintiff would be awarded full

seniority in the position of Foreman of

Sewer Cleaning retroactive to July 16,

1980. Id. Plaintiff also received damag-

es in the amount of twenty-one thousand

App. 23

dollars ($21,000).

In his Amended Petition, Plain-

tiff implies that the Defendant has vio-

lated the Settlement Agreement by not

reinstating Plaintiff with full i ovity

and benefits. Plaintiff asserts that he

is entitled to (1) accumulated vacation

time, compensation time, holiday time and

sick time prior to his 1984 discharge; (2)

vacation time which could have been accu-

mulated from 1984 until 1990 had he not

been discharged; and (3) reimbursement in

the amount of $47,725.23 which represents

the sum Plaintiff withdrew from his pen-

sion fund after his discharge.

ANALYSIS

A settlement agreement is a

contract and as such, "the construction

App. 24

and enforcement of settlement agreements

are governed by principals of local law

applicable to contracts generally." Air

Line Stewards, Etc. v. Trans World Air-

lines, 713 F.20 319, 321° (7em Cie.” 2083)

citing Florida Educational Association v.

Atkinson, 481 F.2d 662, 663 (5th Cir.

1973). When interpreting a contract under

Illinois law, "(t]he intent of the parties

tO a contract must be determined with

reference to the contract as a whole, not

merely be reference to particular words or

isolated phrases, but by reviewing each

part in light of the others." Air Line

Stewards, 713 F.2d at 321 citing LaThorp

v. Bell Federal Savings & Loan Assoc., 68

Til.2d 375, 378, 370 N.E.2@ 186, 191

(1977).

App. 25

Addressing Plaintiff’s first two

requests which seek (1) accumulated vaca-

tion time, compensation time, holiday time

and sick time prior to Plaintiff’s 1984

discharge and (2) vacation time which

could have been sidoreiieual from 1984

until 1990 had Plaintiff not been

discharged, the Court holds that the

Settlement Agreement does not entitle

Plaintiff to such benefits. Thus, con-

trary to the Plaintiff’s assertions, the

Defendant did not violate the terms and

conditions of the Settlement Agreement by

denying Plaintiff these benefits.

The Defendant does not dispute

the fact that the Settlement Agreement

entitles Plaintiff to reinstatement with

full seniority retroactive to 1980.

App. 26

(Defendant’s Response at p.5.) However,

the Defendant argues that the terms of the

Settlement Agreement provide that Plain-

tiff "release, waive and forever discharge

all claims for salary, accumulation

of vacation days, sick days and other

benefits of employment which Plaintiff may

have been entitled to at any time he was

employed with the Defendant city and/or

which could or would have accrued to him

in the future had he remained employed

with the Defendant City." (Plaintiff’s

Petition, Exhibit A, p. 3, Par. 5.)

Plaintiff counters that’ the

parties intended the Settlement Agreement

to provide for reinstatement with

seniority and benefits (underscore) retro-

active to 1980. Plaintiff focuses on a

App. 27

letter dated November 27, 1989 from

Defendant’s attorney which details the

settlement negotiations between the par-

ties. (Plaintiff’s Memorandum; Exhibit B.)

The letter recounts that Piaintiff origi-

nally proposed reinstatement and full

restoration of seniority benefits plus a

lump sum payment of $20,000. Id.

Defendant offered a counter-proposal of

reinstatement and full restoration of

seniority and benefits plus a lump sum

payment of $15,000. Id. (underscore)

The Court does not find the

Plaintiff’s reliance on presettlement

negotiation s persuasive. Once settlement

negotiations are reduced to writing, they

are entitled to a degree of certainty.

Cummings v. Beaton & Associates, Inc., 259

App. 28

Ill .App.3d 287, 618 N.E.2d 292;~ 301 -{aet

Dist. 1992). "Parol negotiations are not

on the same legal footing as executed,

written agreements, for reasons fully

embedded in... contract law." Id. at

302, citing Land of Lincoln Savings & Loan

Vv. Michigan Avenue National Bank of Chica-

go, 103 I1l.App.3d 1095, 1101, 432 N.E.2q

378, 383 (1982) ("[E])vidence of prior or

contemporaneous oral agreements is not

admissible to vary or contradict the terms

of a writing, otherwise unambiguous on its

face.")

The Plaintiff does not argue and

the Court does not find that the terms of

the Settlement Agreement are ambiguous on

their face, and thus, when interpreting

the Settlement Agreement, the Court will

ey? pa + 4) s ‘ & be ”

te Peet ha eee eR Eee

Pad SNR ty RT SE

App. 29

not consider evidence of prior written and

oral settlement negotiations. [In fact,

the plain language of the Settlement

Agreement suggests that the parties ex-

plicitly excluded provisions for benefits.

Plaintiff’s Memorandum; Exhibit A, p.3,

yar. 5. Additionally, the Settlement

Agreement states that the "Plaintiff

understands and agrees that [the] Settle-

ment Agreement is a final and total set-

tlement" and that "the Settlement Agree-

ment contains the entire agreement between

the parties." (Plaintiff's Memorandum;

Exhibit A, p.4, Par.6 and p.5, Par.10.)

Given the unambiguous language of the

Settlement Agreement, the Court concludes

that the Defendant did not violate the

terms and conditions of the Settlement

ee ARTES. NDEI, Tg EE LT A RRS RDS Se RE 1

App. 30

Agreement by not providing Plaintiff with

the requested benefits.

Plaintiff also relies on a

Minute Order issued December 10, 1990 in

Busa, et al. v. Barnes, 84 C 6525, in

Support of his argument that he is entit-

led to vacation time accumulated prior to

his discharge and vacation time which

could have been accumulated between 1984

and 1990 if the Defendant had not dis-

charged Plaintiff. However, contrary to

Plaintiff’s Suggestions, Busa does not

stand for the proposition that "reinstate-

ment" with "seniority" retroactive to a

specific date entitles the employee to

vacation time accumulated prior to peta:

mation and to vacation time which could

have been accumulated had defendant not

App. 31

éathdcous the employee.

In Busa, the Court expressly

that the defendant did not "dispute the

amount of accrued vacation time to which

the plaintiff's were entitled, but only

the time when such accrual may be used."

Busa, 84 ¢ 6525 n.l. The Busa court

rejected the defendant’s contention that

the employee would have to wait a year

before using his accrued vacation time.

Busa stands for the proposition that

"reinstatement" with "seniority" retroac-

tive to a specific date entitles the

employee to immediate use of his vacation

time. Since the Busa defendant apparently

did not argue that the employee had waived

his right to accumulated vacation time,

the Busa Court only addressed the issue of

i

App. 32

when the employee was entitled use his

accumulated vacation. Thus, this Court

finds that the Busa court did not address

the pertinent issues regarding waiver of

accumulated vacation time raised by the

parties in the present case.

Finally, assessing plaintiff’s

claim for $47,735.23, the Court holds that

the Settlement Agreement does not entitle

Plaintiff to reimbursement for the sum he

withdrew from his pension fund.

In support of his claim for

reimbursement, Plaintiff argues that if

the Defendant had not discharged him, the

Plaintiff would not have had to withdraw

$47,725.23 tea Ban pension fund, the

Municipal Employees’ and Laborers’- Annuity

and Benefit Fund of Chicago. Plaintiff

States further that until he pays his

pension fund he will not be eligible to

receive benefits under the Early Retire-

ment Incentive Program (ERIP). ERID

offers fund members a one-time opportunity

to retire early and receive an enhanced

annuity. (Defendant’s Response; Exhibit B

and C.)

Despite the Plaintiff’s asser-

tions, this Court holds that Defendant is

not obligated to reimburse Plaintiff for

the money Plaintiff withdrew from his

pension fund. Once again, the Court looks

to the unambiguous language of the Settle-

ment Agreement which requires Plaintiff to

release, waive and discharge the Defendant

from any claim "arising out of or relating

to Plaintiff’s employment relationship

App. 34

with the City... including. . . other

benefits of employment which Plaintiff may

have been entitled to at any time he was

employed with the Defendant City and/or

which could or would have accrued to him

in the future had he remained employed

with the Defendant City ." (Defendant’s

Memorandum; Exhibit A p.3).

Furthermore, the Illinois Gener-

ot enact ERIP until late

1992 or early 1993, and thus, the parties

could not have contemplated providing

Plaintiff with benefits pursuant to ERIP

when they signed the Settlement Agreement

in December, 1989. (Defendant’s Memoran-

dum; Exhibit B and C.)

Thus, to require the Defendant

to reimburse Plaintiff for $47,725.23, the

App. 35

sum Plaintiff withdrew from his pension

fund, would clearly contravene the intent

of the parties as manifested in the Set-

tlement Agreement. The Court determines

that the Defendant did not violate the

terms and conditions of the Settlement

Agreement when it refused to reimburse the

Plaintiff for sums the Plaintiff withdrew

from his pension fund.

Violation of the Shakman Decree

The Court holds that the Piain-

tiff has not stated a claim for violation

of the 1972 Shakman decree. The Shakman

consent decree prohibits a public employer

from "conditioning, basing or knowingly

prejudicing or affecting any term of

aspect of governmental employment, with

respect to one who is already a governmen-

App. 36

tal employee, upon or because of any

political reason or factor." Shakman v.

Democratic Organization of Cook County,

481 F.Supp. 1315, 1358 (N.D. Ill. 1979),

vacated on other grounds, 829 F.2d 1987

(FER. Gaz: 1987). Plaintiff fails to

allege that he was denied benefits or

early retirement because of political

reasons.

CONCLUSIONS

For the foregoing reasons, the

Court holds that the Defendant did not

violate the Settlement Agreement.

Plaintiff’s Petition to enforce the Terms

and Conditions of the Settlement Agreement

is denied.

ENTER :

App. 37

(Signed)

- : John A. Nordberg

United = States

District Judge

DATED: December 30, 1993

App. 38

Minute Order

John A. Nordberg 85 C 5956

December 30, 1993

Lucille, et al v. City of Chicago,

[memorandum Opinion Attached]

et al

App. 39

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

JOHN LUCILLE, ORVILLE JONES, AND JAMES

WHITE, PLAINTIFFS,

Vv.

CITY OF CHICAGO, an [Illinois Municipal

Corporation, et. al., Defendants

No. 85 C 05956

FINAL JUDGMENT ORDER

[Marked R92 and docketed by the District

Clerk, Stuart Cunningham, on 1/18/90.

Also filestamped Received by Thomas

Strubbe, Clerk of the 7th Circuit Court of

Appeals and marked as Exhibit 14 of John

Lucille’s 8/15/94 Petition for Rehearing]

This cause comes to be heard for

the entry of Judgment and Final Settlement

App. 40

in the above cause with all parties given

notice and the Court fully advised in the

premises; ;

1. That as the Plaintiff John

Lucille has resolved his dispute with the

Defendants, the City of Chicago, Charles

Pounian, Eugene Barnes, William Sommerford

and Lester Dickinson by way of Settlement

Agreement, Judgment is hereby entered in

favor of the Plaintiff, John Lucille and

against the City of Chicago in the total

of TWENTY ONE THOUSAND AND 00/100 DOLLARS

($21,000.000), as damages and not as back

pay, and inclusive of all costs and

attorneys’ fees.

2. That the complaint is hereby

dismissed against defendants Pounian,

Barnes, Sommerford and Dickinson, with

App. 41

prejudice and that the judgment is to be

paid by the City of Chicago.

3. That this judgment Order is

a Final Order, and is entered in accor-

dance with the Settlement Agreement which

has been signed by all parties or the

authorized representatives and filed with

the Court.

4. That the City’s obligations

pursuant to this Final Order shall be

completed within sixty days of the receipt

by the Defendants’ counsel of a copy of

the entry of the Judgment.

$. That judgment is entered

against the City of Chicago and in favor

of attorney Steven H. Sosman in the total

amount of FOUR THOUSAND AND 00/100

(4,000.00).

App. 42

6. That on or before January

16, 1990, or upon receipt by defendants’

counsel of a copy of this Judgment Order,

whichever occurs last, John Lucille shall

be further afforded career service upon

reinstatement to that position.

January 18,, 1990

(SIGNED)

John A. Nordberg

Steven H.Sosman

Attorney for John Lucille

7 South Dearborn

Suite 1310

Chicago, Illinois 60603

641-3755

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