Petition for Writ of Certiorari — O'Shell v. United States

f me Court, U.8.

ee { 4 E D

' 991017 OCT -7 1999

QO.

OFFICE OF THE CLERK

In The

Supreme Court of the United States

GLORIA K. O'SHELL, Petitioner

We

THE UNITED STATES OF AMERICA BY: United States

Department of Army, Louis Caldera, Secretary

of Army; and Army National Guard Bureau,

Major General William Navas Jr, Director

STATE OF INDIANA BY: Frank O'Bannon, Governor

Respondents

On Petition For A Writ of Certiorari

To The United States Court of Appeals

For the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Gloria K. O'Shell, Counsel of Record

1909 N. New Jersey Street

Indianapolis, Indiana 46202-1618

(317) 926-5168

Attorney for Petitioner

|

ate

QUESTIONS PRESENTED

1. PRELIMINARY: On November 21, 1991, the

President signed into law an amendment to Title

VII's "Section 717(c) (42 U.S.C. 2000e-16(c))",

giving federal employees “90 days" in which to

file a Title VII lawsuit after receipt of EEOC's

right to sue notice. However, the 1978-enacted

"30-day" limitation for “mixed issue" cases in

the MSPB-administered Adverse Actions Act ("AAA")

at 5 U.S.C.7703(b)(2) was not changed. The legis-

lative history to the 1991 amendments is silent

on the issue of the "30-day" filing limitation

anomaly remaining in 5 U.S.C. 7703(b)(2), which

EEOC and the Seventh Circuit continue to enforce

to the detriment of all federal employees. Other

circuits have held federal employees are entitled

to the "90-day" statute of limitations in any

Title VI1 action filed under Section 717(c),

regardless of whether they file a "mixed issues”

appeal with MSPB before appealing to EEOC.

QUESTION: Whether under basic rules of sta-

tutory construction, e.g.: "later law controls"

"pari materia" and “legislative history and intent",

the 1978-unchanged "30-day" statutory limitation

of the "AAA", 5 U.S.C. 7703(b)(2), can lawfully be

used by federal courts to deny federal employees

filing "mixed issues" appeals with MSPB, before

appealing to EEOC, the right to be accorded the

-11-

"90-day" statute of limitations contained in Title

VII's Section 717(c) (42 U.S.C. §2000e-16(c))

after its enactment date of November 21, 1991,

when filing claims under Section 717(c)?

QUESTION 2. When one or more actionable vio-

lations of a plaintiff's civil rights occur while

a Title VII law-suit is still pending against the

same defendants and arise out of the same set of

events or similar issues, may those claims be added

to the original complaint under the "continuing vio-

lations" authority of the 199l-amended FRCP 15(c)

and the “relation back" authority of Rule 60(b)?

3. PRELIMINARY: Indiana has a 5-year savings

and tolling statute: Ind.Code 34-1-2-8 (Appendix H,

pg 46), “saved" upon recodification for "any pro-

ceeding begun" before July 1, 1998. The Indiana

Supreme Court has interpreted this statute to cover

“negligence in proscecution" dismissals if "a claim

...met one of the (other) specific situations

described therein." Indiana trial rules 54 and 62

permit challenging a “non-final" judgment or order

by appeal or filing a Rule 60 motion for relief

which then “stays or suspends" the judgment below

until final disposition. Article 4 §23 of Indiana's

Constitution requires "all laws shall be general

and of uniform operation throughout the state".

QUESTION. Under the “full faith and credit"

obligations of the federal constitution; the

-i1i-

Tenth Amendment's reservation of powers to the

states "not delegated to the United States by

constitution"; and the Erie Doctrine (28 U.S.C.

§1652), is a federal court in Indiana required to

recognize and apply the Indiana Savings Act, Ind.

Code 34-1-2-8, as interpreted by the Indiana Su-

preme Court, to allow refiling of plaintiff's ori-

ginal complaint as a “new acton” on April 13, 1998,

after the Court of Appeals denied her appeal and

petition for rehearing on March 9, 1998, to the

district court's denial of her Rule 60 motion for

relief from its dismissal order alleging "“negli-

gence in proscecution"?

QUESTION 4. If Indiana's savings law and trial

rules are held binding on the federal courts situ-

ated in Indiana, what is the correct "abatement"

date for determining when the 5-year statute of

limitations begins for filing “a new action ...

‘after such determination’ (and have it) deemed a

continuation of the first (action)"?

QUESTION 5. Under the "continuation" language

of Indiana's savings statute, what is the tolling

effect for federal statutes of limitations appli-

cable to related causes of action occurring between

the date the “non-final" judgment or order was is-

sued in the first action and the date any challenge

by Rule 60 Motion or Appeal is "disposed" of?

QUESTION 6. When an Indiana federal court

-iv-

issues a “non-final” dismissal “without prejudice"

order, does this leave the situation the same as if

Suit had never been brought, allowing the district

court to deny application of Indiana's savings sta-

tute and the non-final/stay provisions of Indiana's

Trial Rules ("TR") 54, 62?

7. PRELIMINARY: Plaintiff was a commissioned

officer in the federally-recognized Indiana Army

National Guard component of the armed forces of the

United States; was paid entirely with federal funds;

and was subject to al] the rules and requirements

of Titles 10 and 32 of the federal codes and their

implementing federal regulations for the armed ser-

vices. She was involuntarily separated from the

Army National Guard and Indiana militia by separate-

ly issued “transfer out" orders.

QUESTION. Does plaintiff's employment as a mem-

ber of the federally-recognized and funded reserve

component of the armed forces of the United States

require the federal court in Indiana to exercise

“original jurisdiction” over her military employ-

ment claims against the United States and the state

of Indiana under the requirements of Article 3 §2

of the federal constitution; and 28 U.S.C. §§1331,

1343, 1346?

QUESTION 8. Is it permissible for the federal

courts to “subsume” non-related military employment

claims under Title VII for dismissal purposes even

-Ve

though plaintiff asserted those claims under

other legal authorities?

QUESTION 9. Is "“joinder" of two independent

and autonomous employers required in federal

court for just adjudication and remedies purposes

when one employer pays the individual's salary

and maintains separate personnel records, while

the other employer directs the daily work and

training activities of the individual; rates their

job performance; and takes the adverse action?

PARTIES AND PARENT

OR SUBSIDIARY COMPANIES

All parties to the case are shown in the

caption. Respondents are wholly-government

owned agencies or federal and state entities that

do not require listing under Rule 29.6.

-vi-

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ...........ceeeeeeeees

TAME OF ROTUIIATINE oc ceccciccescasecvis ix

(UE TE sasitiisivienean 1

SMUT. isc eee 2

CONSTITUTIONS AND STATUTES ......... 3, App.H

STATEMENT OF THE CASE AND PROCEEDINGS ... 3

REASONS FOR GRANTING WRIT .......22.e000: 10

I. Title VII‘s 199l-enacted "90 day"

Statute of Limitations directly conflicts

with the 1978-unchanged "30-day" filing

limitation for “mixed issue" cases and

should be resolved for the benefit of all

federal GUDICVORS. 6andsdcdinncnecdand 10

II. Primacy of state common law in sub-

Stantive matters not delegated to the

United States by constitution or statute

should require federal courts to permit

filing of independent complaints as “new

actions" and tolling of otherwise appli-

cable statutes of limitations under state

enacted savings and tolling statutes and

CEIGT PRISE. « vccvccdcccesicuaawesueuens 19

-vii-

PAGE

III. Original federal question juris-

diction of federal courts over claims

arising under the constitution and

statutes of the United States should

not be subject to the discretionary

denial authority of the federal courts.. 25

CONCLUSION .nccccccccccccccccccsccccceses 30

APPENDICES:

APPENDIX A - Court of Appeals Opinion

(March 25, 1999) ...ccccceee l

APPENDIX B - District Court Opinion

(September 28, 1998) ...... 4

APPENDIX C - Order Denying Rehearing

eNOS Se.) Pre 16

APPENDIX D - Court of Appeals Opinion

(Decided December 17, 1997) ...... 18

APPENDIX E - District Court Opinion

(April 16, 1997) ....... 24

APPENDIX F - Order Denying Rehearing

(March 9, 19GB} ccccccccee 32

APPENDIX G - District Court Dismissal

(Rent) 3, W9G2)- ccccsssess 33

APPENDIX H - Constitutional and Statutory

PROVISIONS ccccccccccccces 34

-vViil-

PAGE

APPENDIX I - Indiana Civil Rights Commission

(deme 25, I9GR) sicccccese 50

APPENDIX I - EEOC Letter Denying Acceptance

(August 16, 1981) iccescec 51

APPENDIX I - Army Letter Promising Action

(ty 225 TSOR) ckccsaccin 52

-ix-

TABLE OF AUTHORITIES

CASES PAGE

Abele v A.L. Dougherty Overseas Inc.,

192 F.Supp 955 (N.D.Ind 1961) ....... 22

Becton v Pena, 946 F.Supp 84 (DDC 1996) .. 17

Board of Regents v Tomano, 446 US 478 (1980) 24

Burnett v Central Railroad Co, 380 US

RE cue aed ddbeueenebeneeecs 25

Butler v West, 164 F3d 634 (DC Cir 1999) .. 12

Caminett v U.S., 242 US 470 (1916) ........ 14

Cohen v Austin, 833 F.Supp 512 (ED Pa 1993).. 17

Erie v Tompkins, 304 US 64 (1938) ......... 19

Fidelity Union Tr.Co v Field,311 US 169(1940) 20

Forest v USPS, 97 F3d 137 (CA6 1996) ...... 17

Landgraf v U.S.I. Film Prods, 114 S.Ct

SU SUES: Sic ceu tC eneaeebecesécesoces 17-18

McBurney v Carson, 99 US 567 (1878) ....... 18

Mindes v Seaman, 453 F2d 197 (CA5 1971) ... 29

Morris v Jenkins, 819 F2d 678 (CA7 1987) .. 23

Mt.-Dakota Utilities Co. v. NW Public

Service Co., 341 US 246 (1991) ........ 30

NeSmith v Fulton, 615 F2d 196 (CA6 1980) .. 29

Robbins v Benton, 41 F3d 1195 (CA7 1994)... 13

Smith v Navy, 86 FEOR 3238 (1986) ......... 29

The Fair v. Kohler Die Co, 228 US 22 (1913) . 30

Vesoloski v Repay, 520 NE2d 433 (Ind 1988).. 22

Wilson v Pena, 79 F3d 154 (DC Cir 1996) ... 17

=

“8

a

=—* _

CONSTITUTIONS PAGE

UNITED STATES:

PVETCOS © OO sahiceusdtsacsaesaendars App. H

APSIGCIO FS G2 ecccbccvecsccnescesats iv

ti. ee | roe pre rrr rT 8, 9, App. H

lst, 5th, 14th Amendments ........ 3, App. H

re, are bana App. H

LOCH AMONGMONE ccccccrccccccccccss ifi, 19

INDIANA:

PUCCROR. E. BAE Nbneesesadeneuaseniec App. H

gk ee err rr rr y App. H

RECCECE 5 EER Meaccasdaanncaendans App. H

RPRUGtE F Bee (ke tacosnncnauecesees App. H

AVCECTE GS GES ac cvocsucscsesess ii, 20, 24

PPETCID 6 ORF kv ccckscccwantnacwas 20

PPT SGIe ee BEE kW cbcentasntbndeaenne App. H

3 ee Beer erere errr re App. H

WPRTE WE 20 SE kiksGs cv ndkcacnasscnees App. H

PPSTEUE 26. BS “bebsawevcdcesreusiess App. H

STATUTES AND RULES

UNITED STATES:

5 U.S.C. §$§120921221 occ ccccecs 2, 9

5 U.S.C. §§2301-2302 ... 2, 5, 11, 14, App. H

9 U.S.0. BF7GE csccesesac 2, 4, 11, App. H

5 U.S.C. 87702 ..2, 4-6, 10-11, 13-14, 18, App. H

5 U.S.C. $7703 ...... i, 2, 10, 12-18, App. H

9 U.S.C. S779 cacccccccsccecescese App. H

TEURTO WD cvcvccccccsccccvesduscets iv, 28

i i Sainte Clg SRLS

Bel eth a STN

Ses De et REALS EB OE BALES 5 ig

1B BSG BIAS caccdccccceeceswedas 26

BB DiSiGu SAAS hc cccctedevcsicsces 2

BO Di Bits. DASOe sacciccececes iv, 2-3, 27, 30

BD Ui SiGs Fase See viedicaiccdecese iv, 2-3, 27

2B U.S.C. SUGAG ccccccceccccccces iv, 2-3, 27

ZB U5. SAIS. occcccccccccccecees 8, 26

7 Se ev ererer errr iii, 8, 19, 24

2B U.S... FEOF ccccccecscccssecess 3

FER Fo ais acaecacccaccscteccsace iv, 28

G2 U.S.C. GISBe cc ccccccscccsesens 2, App. H

OP US.65 BIRES ch oicdcescesesssves 3, 26-27

42 U.S.C. §§1985-86 ........ 3, 26-27, App. H

42 U.S.C. §82000d, Wh ..cccccccccees 3

BP: 0S.C. SRR SIA) cccccccss 5, 11, App. H

42 U.S.C. $2000e-§ ..nccccccccccces 16

42 U.S.C. §2000e-16(c)/ .... i-ii, 2, 4-6, 10-14

SOCOEOR TAPE) kd ndedke ces 16-18, App. H

42 U.S.C. §2000e-16(e) .......5ee0ee li

INDIANA CODE:

FT TE ETE TL EEE ETT CLL App. H

Lis VOCROIAE cd cdccecccccceecocces App. H

Gy Tee Sikadiosecesivcevews App. H

DG s TRANS | wescdvcevcceeevesenee App. H

LG FrStSaG vvacacdevecesecadees 7, App. #

ee err ye Pee Tee TT eT ee App. H

T.0. We2-d1D. .ccccvcccccccccecere 7, App. H

1.0. WebeFal] wccccccccccccccscecs App. H

-x1i-

PAGES

beGu BRmbeEeE «sc ccccccccceccesasees App. H

bee SOPUSEO® cccsces fi-111, 8-9, 20, 22, App. H

bebe SPPORMEOREScD cocececseseeasees 21

bebe DOPPORCE ceccacececscacdeeuces 20

bole SUMFSEPSD cvevccssccecestaséece 21

TRIAL RULES

PU BD he eh ecnccccccesocesese 41, 5, 7

FRCP/Indiana Trial Rule 60 ... ‘di-iti, 5, 7-8, 23

Indiana Trial Rule 54 ....... ii, iv, 8, 23, 26

Indiana Trial Rule 62 ............ ii, iv, 8, 23

FEDERAL ORDERS AND REGULATIONS

Emecutive Order 12850 ..ccccccccces 3

BO Gelotc BOSD coccccccceseccoessee 13

+ oe Ae) Morrrrrrrrrrryrrrrrr 10, 12

att

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully prays that a writ

of certiorari issue to review the judgment

be low.

OPINIONS BELOW

1. The unpublished opinion of the United

States Court of Appeals for the Seventh Circuit,

was decided March 25, 1999. Appendix A.

2. The unpublished opinion of the United

States District Court, Southern District of

Indiana, Indianapolis Division, was issued

September 28, 1998. Appendix B.

3. A timely petition for rehearing by the

United States Court of Appeals was denied on

July 9, 1999. Appendix C.

4. The unpublished, preceding opinion of

the United States Court of Appeals was decided

December 30, 1997. Appendix D

5. The unpublished, preceding opinion of

the United States District Court, was issued

June 16, 1997. Appendix E.

6. A timely petition for rehearing the

December 30, 1997 appellate opinion was denied

March 9, 1998. Appendix F

7. An unpublished order dismissing the

original (May 1990) complaint without prejudice

was issued by the United States District Court

on April 3, 1992. Appendix G

eee ee Se

ate

JURISDICTION

This Petition for Certiorari is based on a

decision by the United States Court of Appeals for

the Seventh Circuit issued on March 25, 1999.

Appendix A.

A timely petition for rehearing was denied on

July 9, 1999. Appendix C

The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

Diversity jurisdiction of the district

court was invoked under 28 U.S.C. §1331: plain-

tiff being a citizen of Indiana and defendants

citizens of both Indiana and Washington D.C.

Subject matter jurisdiction of the district

court as to plaintiff's federal civil service

employment claims for wrongful suspensions and

discnarge was invoked under Title VII: 42 U.S.C.

§§198la, 2000e as amended in 1991; the Pronhibi-

ted Personnel Practices Act of 1978 ("PPPA"),

5 U.S.C. §§2301-2302, made actionable by the

procedural Adverse Actions Act of 1978, 5 U.S.C.

§§7701-7703; the 1978 Whistleblowing provisions

of 5 U.S.C. §§1209, 1212, 1214, 1221 as amended;

and the jurisdictional authorities of: 28 U.S.C.

§1331, general federal question; §1343(a), redress

for violation of civil rights; and §1346, claims

against the United States).

Original and pendent jurisdiction of the

oe

District Court was asserted over plaintiff's mili-

tary employment claims for breach of contract

and civil rights violations in her dual status as

an active member of the Army's National Guard

component and Indiana militia. Authorities relied

on were: the First, Fifth, Fourteenth Amendments

and Supremacy Clause of the United States Consti-

tution; 42 U.S.C. §1983 of the Civil Rights Acts

together with 42 U.S.C. 2000d, h and Executive

Order 12550 for non-federal receipients of federal

funds; 28 U.S.C. §1331, general federal question;

42 U.S.C.§§1985-1986, prohibiting conspiracies to

deprive persons of civil rights which attaches

original jurisdiction under 28 U.S.C. §1343(a);

28 U.S.C. §§1346(b)(1), and §2671: tort claims.

The district court denied jurisdiction

over plaintiff's dual federal/state military

employment claims under 28 U.S.C. §1367(c).

The appellate court did not address denied

jurisdiction over plaintiff's military employment.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Federal and state constitutional and

statutory provisions relied on are shown at

Appendix H, consisting of 16 pages.

STATEMENT OF THE CASE

Plaintiff, a white female, was employed as

a federal civil service employee by Department

of Army (“Army) for almost 27 years at the time

willie

discharged January 10, 1992, by the same active

Army National Guard Bureau ("NGB") officers who

unsuccessfully attempted to discharge her in June

1988, on the pretext of having a “messy desk".

Army employed plaintiff as a federal auditor in

NGB's laison office located in Army's Finance and

Accounting Center, Fort Harrison, Indiana.

The first (June 3, 1988) discharge was

appealed to the Merit Systems Protection Board

(“MSPB") under the “mixed issues” authority of

5 U.S. .§§7701-7702. After a 2-day hearing in

October 1988, MSPB restored plaintiff to duty

after finding defendants committed continuing

sex discrimination and retaliation violations

of plaintiff's Title VII rights

After return April 1989, plaintiff filed

several never responded to EEO complaints with

Army; and then sued Army and NGB defendants May

17, 1990, under “exhaustion of remedies” provi-

sions, 5 U.S.C. §7702(e), 42 U.S.C. §2000e-16(c).

She sought injunctive relief; backpay for unreme-

died suspensions and denial of a GS12 promotion.

During pendency of the 1990 lawsuit,

plaintiff was compelled to file five more EEO

complaints against the same defendants sued due

to their continued harrassment and threats of

discharge. Due to non-response (App.1), plain-

tiff alleged these complaints also fell under

eta Oa Rn etre a ae eet Sta es

within

5 U.S.C §7702(e), 42 U.S.C.§2000e-16(c) 180-day

“exhaustion” provisions in her 1993 Amendment.

Upon receipt of court orders setting the

1990 lawsuit for trial on June 8, 1992, defendants

discharged plaintiff on January 10, 1992, for al-

leged insubordination. A “mixed issues” appeal

was timely filed with MSPB January 1992 (5 U.S.C.

§7702); requesting consolidation of all pending

EEO complaints; and asserting whistleblowing and

non-retaliation rights under 5 U.S.C. §§2301-2302,

1214-1221; and 42 U.S.C. §2000e-3(a), 16.

On February 12, 1992, plaintiff's attorney

filed a STAY request with his withdrawal (Docket

Entry 504, App.No.1,Exh.C, Appeal). In March 1992,

the district court issued a 30-day "show cause"

order but did not address the STAY request. Due to

a mail mixup, plaintiff did not respond timely. On

April 3, 1992, the court dismissed the suit “with-

out prejudice"for "failure to proscecute”.

Plaintiff timely appealed MSPB's denial of

the January 1992 discharge appeal to EEOC (5 U.S.C.

§7702(b)). EEOC's Right to Sue notice, received

November 1992, gave "30 days” to file an EEO law-

suit. In reliance on the November 21, 1991, "90-

day" filing amendment to 42 U.S.C. §2000e-16(c),

on February 8, 1993, plaintiff filed an Amended

and Supplemented Complaint to the original 1990

action under FRCP Rule 15(c)(1991) and Rule 60(b).

illien

(Argued AppBrf,pp 29-32;ReplyBrf ppl3-19). And

cited reliance on the 180-day non-response provi-

sions of 5 U.S.C. §7702(e) for the five EEO com-

plaints filed before discharge. 5 U.S.C.§7702(e)

directs "an employee shall be entitled to file a

civil action to the same extent and in the same

manner as provided in Section 717(c) of the Civil

Rights Act of 1964 (42 U.S.C. §2000e-16(c)"

(Argued: AppBrf pp 12-13,28-29; ReplyBrf pp 7-11)

Because of timing and nexus, the February

1993 Amended Complaint filing also included claims

against Army, NGB and Indiana National Guard defen-

dants for breach of federal and state employment

contracts entered into on August 14, 1980, and for

involuntary transfer of plaintiff without statu-

tory and regulatory-prescribed due process to the

inactive/unpaid Standby Reserve on March 1,1989,

effectively ending her military career. Plaintiff

alleged termination of her military employment was

Obtained through conspiracy of NGB defendants at

Fort Harrison with Indiana National Guard officers.

"Abuse of command" and civil rights com-

plaints were filed with the Inspector Generals of

both Indiana and Army. Army did not respond and

they were denied by the state's Adjutant General.

An employment discrimination complaint was filed

with the Indiana Civil Rights Commission who re-

fused jurisdiction on June 25, 1991, stating that

et

plaintiff's "relationship with the Indiana Army

National Guard was as a ‘uniformed member of the

United States armed forces’ and not as an employee

within the meaning of the Indiana Civil Rights

law" (App.1 ) Indiana acknowledged receipt

and docketed her Tort Claims Notice as File1911790

on September 24, 1991, but did nothing further.

Plaintiff alleged her involuntary sepsra-

tion violated statutory rights as a commissioned

officer to have a "peer board review" and approval

by the Governor before separation (Ind.Code 10-2-

3-6); and civil rights violations of federal and

state constitutions, the Uniform Code of Military

Justice and regulatory customs and usages of the

United States Armed Forces prescribed by Indiana

for its armed forces (Ind.Code 10-2-3-10).

All claims asserted in the February 1993

Amended Complaint, refiled as a "new action” on

April 13, 1998, were filed under the 1991 "con-

tinuing violation” amendments to FRCP 15(c) and

Rule 60(b) “relation back" authority since they

arose out of the same fact situation, addressed

the same or similar issues, and named the same

defendants sued May 17, 1990.

For four years, the district court took

no action. The court then denied the Rule 15(c)

Amendment/Supplemental request. The Rule 60(b)

Motion for Relief from its previous dismissal

ERI IR RE CN

of.

order of April 3, 1992, was denied April 16,

1997. Plaintiff timely appealed on June 11,

1997. The Appeals Court affirmed the judge's

discretionary denial of a Rule 60(b) Motion on

December 30, 1997. Plaintiff timely petitioned

for rehearing which was denied March 9, 1998.

Plaintiff timely refiled her claims as

an independent complaint April 13, 1998, in re-

liance on: (1) FRCP 60(b); (11) Indiana's Savings

and Tolling statute(Ind.Code 34-1-2-8); (111) the

Erie Doctrine(28 U.S.C. §1652), combined with the

"full faith and credit" obligations of Article 4

§1 of the United States Constitution; and, (iv)

equitable application of FRCP/Ind.Trial Rules 54,

62, establishing "“non-finality” of any judgment in

Indiana permits challenge by either appeal or Rule

60 motion which stays and suspends the initial order

or judgment until final “disposition”.

By unpublished order issued September

28, 1998, the district court dismissed plaintiff's

federal civil service employment claims with pre-

judice and denied “pendent jurisdiction” over

state claims relative to her federal-state mili-

tary employment in the Indiana Army National

Guard. First “subsuming"” them al] under Title

VI1; finding the Title VII action untimely; and

citing lack of jurisdiction under the discre-

tionary authority of 28 U.S.C. §1367(c). The

PR tC 3 RRA Ark

-9-

district court held:

(1) A 1993 change to Indiana's Savings

statute, Ind.Code 34-1-2-8, barred its appli-

cation to “negligence in proscecution" dis-

missals. But did not address passage of the

Recodification Act of 1998, on July 1, 1998

(P.L. 1-1998); which made the Act of “no effect"

for “any proceeding begun” before July 1, 1998.

(Argued: App.Brf pp 21-23; ReplyBrf pp 5-7)

(11) The federal judge stated agreement

with other circuit rulings which did not address

the Indiana's Savings statute, holding plain-

tiffs have five years after a “failure/abate-

ment" determination to refile their claims as a

"new action (which shall be) deemed a continua-

tion" of the first action. Nor did he adress

Indiana's trial rules staying and suspending any

judgment in Indiana until a Motion for Relief or

Appeal is "disposed of". (Argued: ReplyBrf ,pp3-7)

(1411) In holding plaintiff “did not

file this action within the '30 day period’

(pertaining) to (EEOC's) right to sue letter”,

he cites to pre-1991 initiated lawsuits which do

not address Title VII's "90-day" amendment.

On March 25, 1999, the appellate court

summarily affirmed the district court's denial of

the April 13, 1998, complaint; but did not address

her military employment and conspiracy claims; sta-

-10-

tutory construction arguments; or application of

Indiana savings law and trial rules etc.

On July 9, 1999, plaintiff's timely-filed

petition for rehearing was denied by a three-judge

panel without discussion.

REASONS FOR GRANTING THE WRIT

I. Title VII's 199l-enacted "90-day" Statute

of Limitations directly conflicts with the 1978-

unchanged “30-day” filing limitation for “mixed

issue" cases contained in the "Adverse Actions

Act" ("AAA") (5 U.S.C. §7703(b)(2)), and should

be resolved for the benefit of all federal

employees consistent with the legislated his-

tory and stated intent of the 1991 Amendments.

The conflict in filing limitations between

the "30-day" filing limit in the "AAA" and the

199l-expanded "90-day" filing limit of Title

VII's 42 U.S.C. §2000e-16(c), actually and

prospectively affects over a million or more

federal, postal, legislative, judicial and other

employees identified at 29 CFR 1614.103(b).

Thousands of these employees are subjected each

year to appealable adverse actions few of which

proceed into federal court or are successful

according to MSPB's annual reports.

Most adverse actions are countered with the

affirmative defenses set forth for “mixed issue"

cases in 5 U.S.C. 7702(a)(1)(B) and the "PPPA"

abe

5 U.S.C. 2301-2302(b)(1),(d). That is: discrimi-

nation on the basis of race, color, religion,

i he RULER LTO Teg eS aaa

sex or national origin, retaliation, age; sex

as it relates to equal pay; handicapping con-

dition; marital status or political affiliation;

or “any rule, regulation or policy" implement-

ing these Acts, including Executive orders and

the federal Constitution (5 U.S.C. §2301(b)(2);

42 U.S.C. 2000e-16(e)).

5 U.S.C. 7701(c)(2)(3) requires setting aside

"any prohibited personnel practice described in

Section 2302(b)". Section 2302(b)(11) prohibits:

"tak(ing) or fail(ing) to take any other

personnel action if the taking of or failure

to take such action violates any law, rule,

or regulation implementing or directly con-

cerning the merit system principles contained

in Section 2301 of this Title"

9 U.S.C. §2301(b)(9)(A) and 2302(b)(9)(A)-(B),

(11), reenforce Title VII's prohibitions against

retaliation. (42 U.S.C. 2000e-3(a), 16)

Under the “mixed issues" proceedings set out

in 5 U.S.C.§7702, an individual appeals first to

MSPB; and, if MSPB's decision is negative, then

appeals to EEOC or files a Title VII lawsuit.

} However, most judges require a “right to sue"

: letter from EEOC prerequisite to filing suit; and,

A latte Re RT AE Wl aD eRe Led a teen at 5 AOE HR RELLY ORS SENG APT ae KOS AOR RM ERMA Ag SS Sop URES? SER TR Sa Sead ome

EEOC regulations establish the agency's "final

es}

decision" in an adverse action must be appealed

to MSPB first and not EEOC (29 CFR §§1614.302(da)

(11)(3), §1614.310 (7-1-1998 ed.) Therefore,

there is no escaping possible application of the

"30-day" filing conflict in 5 U.S.C. 7703(b)(2).

The time required to merge and master person-

nel, agency, MSPB and EEOC regulations with the

federal acts, Executive Orders and union contracts

to determine individual rights cannot be over-

estimated as was recognized in Butler v West,

164 F3d 634,638 (D.C.Cir 1999), stating:

"When the discrimination is alleged as a vio-

lation of Title VII, the federal employee

‘must negotiate and exhaust the complex

administrative regime’ that governs Title

VII public employment cases in addition

to the usual procedures for challenging

an adverse personnel] action under the

Civil Service Reform Act."

The legislative history and stated Congres-

sional intent behind the 199l-amended Section

717(c), emphasized the "90 days" filing right

was absolutely critical to enable federal

employees making it through convoluted "mixed

issues” proceedings time to obtain attorney

representation and file a lawsuit. In contrast

to appellants who are generally without a job,

secondary income or substantial savings to pay

a

thousands for advance retainer fees, federal

Supervisors are immediately and continuously

provided with unlimited competent, free legal

representation at the taxpayers expense.

Since it took several years for EEOC to

revise its 29 CFR 1613 regulations to conform

to the 1991 amendments to Title VII, plaintiff

relied on the enactment date of November 21,

1991, and the legislated history and stated

intent of Section 717(c) amendments to allow

her “90 days" to prepare and file her Title VII

Amended and Supplemented Complaint in February

1993, which contained the January 1992 discharge

and earlier actionable events, rather than the

"30 days" contained in EEOC's right to sue

letter. I.E. "Regulations cannot trump the

plain language of the statutes." Robbins v

Benton, 41 F3d 1195, 1198 (CA7 1994).

Plaintiff also relied on the “plain meaning"

of Section 7703(b)(2) which directs:

"Cases of discrimination ‘subject to' the

provisions of section 7702 of this title

‘shall be filed’ under Section 717(c) of

the Civil Rights Act of 1964 (42 U.S.C.

2000e-16(c)..."

This language parallels Section 7702(e)(1) which

states:

"Notwithstanding any other provision of law

obit.

...an employee ‘shall be entitled to file a

civil action ‘to the same extent and in the

same manner as provided in Section 717(c)'..."

"It is elementary that the meaning of a statute

must, in the first instance, be sought in the

language in which it is framed; and if that is

plain, the sole function of the court is to

enforce it according to its terms." Caminett

v U.S., 242 US 470, 485 (1916)

However, the last sentence of Section7703(b)

(2), unchanged since 1978, directs: "Notwith-

standing any other provision of law, any such

case filed under any such section ‘must be filed

within 30 days’ after the date the individual

filing the case received notice of the judicial-

ly reviewable action under...section 7702".

The legislative history to Title VII's 1991

amendments makes no reference to the "30-day"

filing conflict in 5 U.S.C. 7703(b)(2). But

5 U.S.C. 2302(d) of the "PPPA", establishing

Subject matter limits for the "AAA" directs:

“This section shall not be construed to extin-

guish or lessen... any right or remedy

available to any employee ...in the civil

service under...section 717 of the Civil

Rights Act of 1964 (42 U.S.C. 2000e-16)"

There is no record that EEOC or other parti-

cipating federal agency, all of whom were fully

Bene lat Rak tp gt Te A oe! ee

x

knowledgeable of this conflict, did anything

to bring this conflict to the attention of

legislators for resolution. However, it is un-

reasonable to believe that the 1991 Congress

would have intended this last sentence of 5

U.S.C. §7703(b)(2), standing alone and taken out

of context with the immediately preceding, direc-

tive language, to "gut" the "90-day" filing right

it took federal employees over twenty years to

obtain on par with private sector employees for

defeating them when filing "mixed issues”

Claims under Title VII in federal court.

Plaintiff argued statutory construction prin-

Ciples of “legislative history and intent", "pari

materia" and “later law controls" should be

applied by the district and appellate courts to

determine this issue, consistent with a substan-

tial body of federal and state law generally com-

peling this approach when two conflicting statu-

tory directives control the same identical issue.

The district court asserted plaintiff's

failure to file within the 30 days directed in

EEOC's right to sue letter defeated her Title VII

Claims filed in 1993, and refiled after abatement

in April 13, 1998. But the court did not address

any statutory construction arguments. And cited

only pre-1991 initiated lawsuits which did not

address the "90-day" amendment to Title VII.

oie

However, the judge did state : "There is no

reason, in either legal or practical terms to

use ‘any period of limitation other than that

prescribed in Title VII itself to determine

when suit had to be brought." App. B

In its affirmance of the district court's

decision, the appellate court likewise did

not address plaintiff's statutory construction

arguments, noting only that: "But whether she

is ‘right or wrong’ (as to the “longer 90-day

limit imposed by 42 U.S.C.2000e-5(f)(1) (sic)")

‘is of no consequence’ given her five-year delay”

in filing which “missed the deadline". Neither

court specified the beginning date for the "5-

year period” they referred to. App. A

Over the eight years since enactment of the

"90-day" amendment, there is_increasing conflict

in circuit rulings addressing the irreconcilabi-

lity of the "30-day" limit in 5 U.S.C.7703(b)(2)

versus the "90-day" filing limit of Title VII's

Section 717(c) that should be resolved by the

Supreme Court for the benefit of all federal

and other affected employees. In contrast to

the Seventh Circuit's adherance to "30-day"

rulings arising from lawsuits pre-dating the

1991 enactment, other circuits are using

divergent rationales to ensure application of

the "90-day" filing right. I.E.::

«its

(1) Becton v Pena,946 F.Supp84, 85-87 (DDC

1996) discussed the “procedural anomaly that

Congress...did not intend (as to forcing) dif-

ferent time limits...for filing Title VII suits

depending on which administrative body--EE0C or

MSPB--initally hears a federal employees claim."

The court discussed the legislative history

wherein Congress concluded a “30 day limitation

period for filing suit against the federal gov-

ernment is, in most instances, ‘simply too short'

to allow plaintiffs adequate time to prepare and

file their claims in federal court; and held the

30-day limitation in Section 7703(b)(2) is "no

longer jurisdictional under the 1991 Amendments

to 42 U.S.C. §2000e-16(c) extending a 90-day sta-

tute of limitations for discrimination actions".

(11) Forest v USPS, 97 F3d 137,140-141 (CA6

1996), relying on Landgraf v USI Film Prods,

114 S.Ct 1483, 1499 (1994) and Wilson v Pena,

79 F3d 154,162 (D.C.Cir 1996), summarily held

that the 1991 Acts 90-day limitation “was good

law when Forest filed his complaint and thus

Forest filed his complaint in a timely manner."

(111) Cohen v Austin, 833 F.Supp 512, 516-

517 (ED Pa 1993) argued that EEOC's refusal to

review an MSPB decision, as stated in plaintiff's

right to sue notice, was not the "judicially

«>

reviewable action" referred to by Congress in

5 U.S.C.§7703(b)(2) since EEOC's source auth-

ority to issue a “final decision" may only be

asserted under Title VII's 42 U.S.C. 2000e-16(c).

Further, under Section 7702's express terms,

only the agency, MSPB or the Special Panel issue

the “judicially reviewable action" decision cited

to at 5 U.S.C. §§7702(a)(2)3(b)(3),(5)(A)-(B);

(d)(2)(A). EEOC only issues a “consideration

determination" on a Board decision (Section 7702

(b)(1)); which “may not be used in any ‘judicial

proceeding'"(§7702(b)(2)). Citation to its own

regulations in its right to sue letter indicates

EEQC's belief that 42 U.S.C. §2000e-16, not

5 U.S.C. 7702 is the sole source of its authority.

(iv) Landgraf, Id. at pp 1497-98 et al, rela-

tive to defendants conduct and events preceding

the "90-day" amendment to Section 717(c) held:

“Changes in procedural rules while a suit is

pending are not usually considered retroactive

because such changes do not impose a new burden

upon the parties” (114 S.Ct at 1502). “Rules of

procedure regulate secondary rather than primary

conduct. Therefore, institution of a new proce-

dural rule after the conduct giving rise to the

suit does not make that rule retroactive." Cit-

ing McBurney v Carson, 99 U.S. 567, 569 (1878).

E.G. the “action” regulated by the

-19-

amended 90-day limitations period is plaintiff's

"filing" of a lawsuit which occurs after passage

of the 1991 civil rights act--not defendants con-

duct which may have occurred before the November

21, 1991 enactment date.

II. Primacy of state common law in substantive

matters not otherwise delegated to the United

States by constitution or statute should require

federal courts to permit filing of independent

complaints as “new actions" and tolling of other-

wise applicable statutes of limitations under state

savings and tolling statutes, and trial rules.

Under the “full faith and credit" obligations

of the United States Constitution, Article 4 §1

and the Tenth Amendment, reserving all powers to

the states that are not delegated to the "United

States by Constitution", the Supreme Court long

ago established the Erie Doctrine, codified at

28 U.S.C.§1652, requiring that the “laws of the

several states, except when the Constitution or

-..Acts of Congress otherwise require or pro-

vide ‘shall be regarded as rules of decision’

in civil actions in the courts of the United

States, in cases where they apply." Erie v

Tompkins, 304 US 64,77-79 (1938) expressly held:

"Except in matters governed by the federal

constitution or by Acts of Congress, the

Mn

law to be applied in any case is the ‘law

of the state'...whether declared in a sta-

tute or by its highest court in a decision...

Congress has no power to declare substan-

tive rules of common law in a state...and

no clause in the Constitution purports to

confer such a power upon the federal courts."

The Supreme Court has declared: "It is inadmis-

sable that there be one rule of state law for

litigants in the state courts and another rule

simply because of diverse citizenship for liti-

gants in federal courts." Fidelity Union Tr.

Co. v Field, 311 US 169, 177-180 (1940)

Due process and equal protection of the law

for Indiana citizens is guaranteed by the Ind-

iana Constitution. Article 4 §23 requires:

"all laws shall be general and of uniform opera-

tion throughout the state." Article 4 §27 holds:

"every statute is a public law" which the General

Assembly is required to “grant to any citizen or

class of citizens...upon the same terms (which)

shall...equally belong to all citizens."

Since 1881, Indiana has had its own (5-year)

savings and tolling statute: Ind.Code 34-1-2-8,

saved by the July 1, 1998, Recodification Act.

E.g.: Ind.Code 34-7-1-1(1998) states: "The sub-

Stantive operation and effect of the ‘prior civil

law and procedure’ continue uninterrupted as if

-2)]-

the recodification act of...1998...had not been

enacted."

(11) Ind.Code 34-7-1-3(a)(1998) states: "The

recodification act of...1998...does not affect:

1) any rights or liabilities accrued;...3) any

violations committed; 4) any proceedings begun...

9) the validity, continuation or term of any con-

tracts...executed...before...July 1, 1998...Those

rights, liabilities, penalties, offenses, pro-

ceedings...contracts...'continue and shall be

imposed and enforced under prior civil law and

procedure’ as though the recodification act of

1998...had not been enacted."

(141) Ind.Code 34-6-2-113.5(1998) states:

"Prior civil law and procedure for purposes of

Indiana Code 34-7 refers to the statutes that are

repealed or amended in the Recodification Act of

...1998...as the statutes existed before the

effective date of applicable or corresponding

provisions" (Argued App.B8rf pp 20-25)

The lower courts did not address these 1998-

enacted savings provisions, maintaining only that

“negligence in proscecution" dismissals were ex-

Cluded from coverage. However, plaintiff filed

her Amended Complaint on February 8, 1993; and,

after “abatement” on appeal, filed a “new action”

on April 13, 1998. Both filings preceded the July

1, 1998, Recodification Act and should be saved.

«2%

The Indiana Supreme Court interpreted Ind.

Code 34-1-2-8 to cover "negligence in proscecu-

tion" dismissals if “a claim would otherwise be

saved by the statute because it met one of the

(other) specific situations described therein."

Vesoloski v Repay, 520 NE2d 433,434 (Ind 1988)

The district court recited Indiana's ruling and

“tolling” language used: "If after the commence-

ment of an action, the plaintiff fails therein

...a New action may be brought within five (5)

years after such determination and ‘be deemed a

continuation of the first’, for the purposes

herein contemplated," and then applied it to

Indiana's Abele v A.L.Dougherty Overseas Inc,

192 F.Supp 955, 956-57 (N.D. Ind 1961): “the

Statute ‘saves employment action brought in

State court after expiration of original statute

of limitations when brought within five years

after identical claim ‘dismissed without preju-

dice’ by federal district court." App. A

However, the lower courts inequitably re-

jected application of Indiana's “continuation”

language to plaintiff's case, holding a "“dis-

missal without prejudice leaves the situtation

the same as if a suit had ‘never been brought'",

ignoring their cited case of Abele, Id. They

also cite cases from other circuits, not address-

Indiana law to hold that: “in the absence of a

=23n

Specific ‘statute’ to the contrary, there is ‘no

tolling’ of the statute of limitations for the

period of time during which the action so dis-

missed was pending". The Seventh Circuit held

in another Indiana case: Morris v Jenkins, 819

F2d 678 (7th Cir 1987): "...statutes have been

passed in nearly all of the states, providing

for a renewal of actions which have failed on

account of some matter not involving the merits.

These statutes...contemplate...a new and dis-

tinct suit shall be commenced ‘which shall be

treated as a continuation’ of such former suit."

Both lower courts ignored plaintiff's argu-

ments that Indiana's savings statute must be

read in the context of Indiana trial rules ("TR"),

Similar to FRCP 54(b), Indiana's TR54(B),(E)(2)

defines any “non-final" order or judgment as one

adjudicating "fewer than all the Claims...rights

and liabilities of fewer than all the parties

(which) ‘shall not terminate an action as to any

of the claims or parties." No limiting criteria

is assigned. Any order or judgment may then be

“challenged...by appeal, motion and the like".

Ind.TR 62(B)(4)-(5) establishes proceedings

to enforce a judgment are “stayed and suspended"

upon “filing and ‘disposition’ of...(4) a

motion for relief from a judgment or order made

pursuant to Rule 60, or (5) an appeal."

«Phu

The "full faith and credit" obligations of the

federal constitution compel recognition of Indi-

ana's constitutional requirement at Article 4

§23, that "all laws shall be general and of uni-

form operation throughout the state." In refus-

ing to apply Indiana law as enacted and inter-

preted by the state's legislature and highest

court, the federai courts have denied application

of the Erie Doctrine, 28 U.S.C. §1652, in Indiana.

(Argued: Reply Brf, pp 3-7)

Requiring the federal courts to comply with

the Erie doctrine and “full faith and credit"

obligations of the U. S. Constitution for appli-

cation of state substantive law affects every

claimant proceeding before a federal court.

States enact savings acts and trial rules for

the benefit of state citizens and rely on them

to be applied “equally” to all citizens in

federal as well as state forum courts. Under

current rulings of the Seventh Circuit, federal

courts may now "pick and choose” among other

state rulings to circumvent and avoid state

forum law with which they do not agree.

The tolling case of Board of Regents v Tomano,

446 US 478, 481-482 (1980), held: “The need for

uniformity, while paramount under some federal

statutory schemes, has not been held to warrant

the displacement of state statutes of limitations

aft.

for civil rights actions". The Supreme Court has

reversed decisions below on the ground that the

prior action was a timely suit which "tolled" the

Statute of limitation. Burnett v NY Central RR

Co., 380 US 424 (1965)

Indiana's savings act and trial rules are "sub-

ject matter blind" as to any lawsuit in which a

“failure or abatement occurs" or in which an

appealable “non-final" order or judgment arises.

Plaintiff asserts the “plain language" of Ind-

iana's savings law and trial rules at issue deny

federal judges "discretionary authority" to dis-

regard them under their (29 U.S.C.§453) judicial

oath. State citizens are guaranteed due process

rights legislated for their benefit by elected

State representatives in federal forum courts,

which calls for the supervisory enforcement

powers of the Supreme Court.

Only by according plaintiffs, as a private

attorney-general, the full range of federal and

State law allowing continuing response to retali-

atory actions, without having to undertake cost

prohibitive, piecemeal litigation subject to

“claims preclusion” barriers, may the aims and

Objectives of the peoples' federal and state

elected representatives be achieved.

III. Original federal question jurisdiction of

federal courts over claims arising under the

constitution and statutes of the United States

o26=

should not be subject to the discretionary denial

authority of the federal courts.

By “subsuming" all of plaintiff's military

employment claims under Title VII and then dismis-

sing them for “untimeliness", the lower courts

avoided addressing their merits. However, the

district court recognized plaintiff's status as a

“uniformed member of the...Indiana National Guard

in a part-time position;" and reliance on: “42

U.S.C. §1983; 18 U.S.C. §241; and 42 U.S.C. §1985:

conspiracy to interfere with civil rights; and

federal and state Military Acts."

The district court correctly stated Title VII

covered “only civilians" in military departments.

But then held: "discrimination-based claims pur-

suant to federal law ‘other than Title VII’ can-

not be maintained and must be dismissed;" dis-

missing them as “pendent state law claims" for

"lack of jurisdiction" under 28 U.S.C §1367(c).

Plaintiff submits this “subsumption” approach

is a "non-final" judgment under FRCP/Ind.TR 54,

as “all the claims, rights and liabilities of all

the parties" are not adjudicated. (Argued: Reply

Brf, pp 3-5) And denies plaintiff and all others

similarly situated equa: access to the federal

courts whenever interrelated supervisors are in

a position to retaliate against them, directly or

indirectly, in both civilian and military careers.

‘ =»

However, the principles of “claim preclusion",

compel bringing both types of employment claims

into one federal complaint when the same or inter-

related defendants are involved and the facts of

the case are such as to give rise to a "cons-

piracy" action. Lower court rulings now put

plaintiff and other reserve members in the pre-

carious, “catch 22" position of being denied

review of their military employment claims when-

ever submitted with Title VII-covered claims.

This "subsumption" by Title VII of all other

causes of action denies otherwise controlling

“original jurisdiction statutes such as: 28

U.S.C. §1331: civil actions arising under the

constitution, laws or treaties of the United

States; 28 U.S.C. §1343(a): any civil action

authorized to recover damages for 42 U.S.C.

§1985 civil rights violations; redress 42 U.S.C.

§1983 violations; recover damages or secure relief

under any Act of Congress providing for protection

of civil rights; 28 U.S.C. §§1346(b)(1), 2671:

Claims against the United States” for torts of

government employees, including “military depart-

ments" and “members of the National Guard"

Plaintiff furnished evidence she held dual

employment status with both the federally recog-

nized forces of the United States (national guard

component) and the Indiana National Guard. (Reply

-28-

Brf,App.No.2) At no time was Title VII asserted

for alleged civil rights violations and breach

of separate military employment contracts cover-

her 17-year career and preceded Army's employ-

ment in NGB's laison office. There was no

connection between her civilian and military

jobs except for interrelated employers.

Titles 10 and 32 -0f the United States Code

establish the federal basis and independent nature

of NGB as a military organization, separate from

Army. Indiana is clearly a separate employer.

(Argued: Appel.Brf,pp 35-39; Reply Brf,pp 1-2)

Every military personnel action had a separate

federal and state authorizing order. All train-

ing assigned was for a federal mission; all pay

received was from federal funds. Plaintiff took

separate oaths to serve the President and Governor

of Indiana as separate “Commanders in Chief" upon

entry into the Indiana National Guard in 1980.

The Title VII “subsumption” dismissal of plain-

tiff's military employment claims leaves her and

all other reservists denied redress under the

"myriad" of federal laws relied upon and cited to

that should compel the federal court to exercise

“original jurisdiction", separate from civilian

employment claims. No subsumption case cited by

the lower courts addressed a “mixed” employment

complaint containing separate military and

-29-

civilian claims against different employers. But

reservists and guardsmen frequently work for

supervisors who are in a position to affect both

their civilian and military careers.

EEOC makes it a "general rule" to join sepa-

rate government employers who “bear joint respon-

sibility for an act of alleged discrimination" to

ensure “all agencies are joined which are parties

indispensable to just adjudication of a complaint."

Smith v Navy, 86 FEOR 3238 (1986). Compulsory and

permissive joinder of claims and parties are stan-

dard and essential to judicial economy under fed-

eral and state civil procedures. There was noth-

ing “unique" in joining interrelated defendants

and causes of action in one complaint. Only the

lower courts' “subsumption” response and denial

of “original jurisdiction" was unique. Mindes v

Seaman, 453 F2d 197,201 (Sth Cir 1971), citing

NeSmith v Fulton,615 F2d 196, 201-02 (CA6 1980):

"A court is required to determine whether the

case involves an alleged ‘violation of a

constitutional right, applicable statute or

regulation and whether intraservice remedies

have been exhausted. If (review is granted),

the court is...to weigh the nature and strength

of the challenge to the military determination,

the potential injury to plaintiff if review is

refused, the type and degree of anticipated

» Me

interference with the military function and

...extent to which military discretion or ex-

pertise is involved in the challenged decision."

Plaintiff's military employment claims against

federal and state employers raises questions

under 28 U.S.C. §1331, which confers "power to

decide whether or not the federal question itself

has merit and is well founded." Mt-Dakota Utili-

ties Co v NW Public Svc Co., 341 US 246,249 (1991).

Quoting from Justice Holmes: “If the plaintiff

makes a substantial claim under an Act of Con-

gress, there is jurisdiction whether the claim

ultimately be held good or bad." The Fair v Koh-

ler Die Co, 228 US 22, 25 (1913).

The Supreme Court's supervisory enforcement

authority is required to prevent denial of ori-

ginal jurisdiction over federal questions when

litigants file mixed military and civilian

employment claims in the same federal lawsuit.

CONCLUSION

The Petition for a Writ of Certiorari should

be granted.

tfully 7 d,

GLORIA K. O'SHELL, Attdrney for Petitioner

1909 N. New Jersey Street, Indianapolis,

Indiana 46202-1618 - (317) 926-5168

Dated: October 6, 1999 (*Reduced per Order)

App. A-1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 24, 1999°

Decided March 25, 1999

UNPUBLISHED ORDER

Before NOT TO BE CITED PER

CIRCUIT RULE 53

Hon. William J. Bauer, Circuit Judge

Hon. Joel M. Flaum, Circuit Judge

Hon. Daniel A. Manion, Circuit Judge

No. 98-3750 Appeal from the United

States District Court for the

GLORIA K. O’SHELL, Southem District of Indiana,

Plaintiff-Appellant, Indianapolis Division

Vv.

UNITED STATES OF No. IP 98-0494-C-T/C

AMERICA; ROBERT M.

WALKER, Acting Secretary John D. Tinder,

of the Army; MAJOR Judge

GENERAL WILLIAM

NAVAS, JR., Director,

Army National Guard

Bureau; et al.,

Defendants-Appellees.

ORDER

“After an examination of the briefs and record, we have

concluded that oral argument is unnecessary, and the appeal is

submitted on the briefs and record. See Fed. R. App. P. 34(a).

App. A-2

In 1990, Glona O’Shell, then a civilian employee of the

United States Army, commenced an action alleging that various

dependants, all of them bearing some connection to the Army,

discruminated against her on the basis of her gender. In April

1992, the district court dismissed O’Shell’s case without

prejudice for failure to prosecute. Subsequently O’Shell moved

for relief under Fed. R. Civ. P. 60(b), and we affirmed the district

court's denial of the motion. O ‘Shell v. United States Dept. of

the Air Force, 132 F.3d 36, 1997 WL 800875 (7" Cir. 1997)

(unpublished order). In January 1992, several months before the

district court dismissed O’Sheil’s case, the Army discharged her.

O’Shell filed a discrimination charge with the EEOC and, in

November 1992, received a right-to-sue letter.

More than five years later, in April 1998, O’Shell filed this

suit challenging her 1992 discharge and reiterating the allegations

made in her 1990 action. O’Shell claimed that her rights had

been violated under a host of provisions, including Title VII of the

Civil Rights Act of 1964 and the First, Fifth and Fourteenth

Amendments. All of her claims, of course, are subsumed under

Title VII, “the exclusive judicial remedy for claims of

discrimination in federal employment.” Brown v. Gen. Serv.

Admin.. 425 U.S. 820, 835 (1976); see also Waid v. Merrill Area

Pub. Sch., 91 F.3d 857, 861-62 (7 Cir. 1996) (“Title VII

provides a comprehensive statutory scheme for protecting nghts

against discrimination in employment’’). And, although O’Shell

names several, only the Secretary of the Army is a proper

defendant. See 42 U.S.C. § 2000e-16(c); Espineuva v. Garrett,

895 F 2d 1164, 1166 (7" Cir. 1990).

On Appeal, we need only address whether the district court

correctly held that this Title VII action is time barred. Like the

district court, we find that it is_ The EEOC issued O’Shell a

right-to-sue letter on November 14, 1992. In the absence of

special circumstances giving rise to waiver, estoppel, or equitable

App. A-3

tolling, a “mixed” case involving both a complaint of

discrimination and a challenge to job actions (such as O’Shell’s

dismissal) appealable to the Merit Systems Board must be filed

within 30 days after receipt of the notice of right to sue. 5 U.S.C.

§§ 7702(a)(1)(B)(1); 7703(b)(2); Blaney v. United States, 34

F.3d 509, 512 (7" Cir. 1994); Butler v. West, 164 F.3d 634, 638

(D.C. Cir. 1999). O’Shell argues that, even though hers is a

mixed case, the longer 90-day limit imposed by 42 U.S.C. §

2000e-5(f)(1) should apply. See Williams-Guice v. Board of

Educ. Of Chicago, 45 F.3d 161, 163 (7 Cir. 1995) (Title VII

sets 90-day limit). But whether she is night or wrong is of no

consequence given her five-year delay in filing. Moreover, we

reyect O’Shell’s argument that the dismissal of her 1990 case

without prejudice preserved her cause of action for filing at a later

date. Dismissal without prejudice has no consequence on the

running of the statute of limitations. See Conover v. Lein, 87

F.3d 905, 908-909 (7" Cir. 1996). O’Shell filed her suit at least

five years too late, on April 13, 1998. She missed the deadline,

and the record reveals no circumstances that would justify waiver,

estoppel, or equitable tolling.

AFFIRMED.

App. B-4

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

GLORIA KAY O’SHELL, )

Plaintiff, )

vs. ) IP 98-494-C-

T/G

)

UNITED STATES OF AMERICA, )

et al., )

Defendants. )

JUDGMENT

The court, having this day made its Entry,

IT IS THEREFORE ADJUDGED that the plaintiff's

federal claims are dismissed with prejudice and that the any

pendent state law claims are dismissed for lack of jurisdiction.

(s/ John D. Tinder

JOHN D. TINDER, Judge

United States District Court

Dated: _9/28/98 _

ENTRY DISCUSSING PENDING MOTIONS

I. Introduction

In Homola v. McNamara, 59 F.3d 647, 650 (7 Cir. 1995),

Judge Easterbrook made the following observations for a panel of

the Seventh Circuit Court of Appeals:

Litigation is society’s way to resolve disputes. Courts invite

parties to make their evidence and arguments known. Appellate

App. B-5

courts correct errors. After the process has run its course, there

should be peace between former adversaries. Many persons do

not see litigation this way, however. They adopt a never-say-die

attitude. If the first case goes against them, then some chicanery

must be to blame. Now if the courts are unable to separate truth

from fiction - the premise of this attitude toward the results of

litigation - one would suppose that remedy lies in a political

forum, or perhaps in an occasion for writing an expose. Yet

many litigants who refuse to accept judgments against them see

their balm as - more litigation!

This is a case which would have served as a paradigm for the

foregoing mulish description.

This action is a sequel to plaintiff Gloria Kay O’Shell’s

claims of discrimination, retaliation, and creation of a hostile

work environment brought in O ‘Shell v. Department of the Air

Force. IP 90-1373-C-M/F (S.D.Ind. April 3, 1992). This earlier

case was dismissed for failure to prosecute. O’Shell filed post-

judgment motions, which were denied. The denial of these

motions was affirmed on appeal in ( ‘Shell v. Department of the

Air Force, No. 97-2470 (7 Cir. December 20, 1997)

(unpublished). O’Shell then filed the present action to carry on

her legal siege of her former employer and associated entities and

individuals.

II. Background

The operative pleading setting forth O’Shell’s claims in this

case is her complaint, filed on April 13, 1998. It is likely no

coincidence that this action was filed less than thirty (30) days

after the Court of Appeals’ mandate in No. 97-2470 was docketed

in IP 90-1373-C-M/F. O’Shell explains in her complaint that she

brings this action:

App. B-6

for the continuing sex discrimination, harassment, maintenance of

hostile and abusive working conditions and ongoing retaliation

suffered by plaintiff prior to and at the time of her wrongful

suspension in May 1991 and subsequent wrongful termination on

January 10, 1992.

The defendants are (1) the United States of America, (2) the

United States Department of Army, (3) the United States Army

National Guard Bureau, (3) Hon. Robert M. Walker, Acting

Secretary of the Army, (4) Major General William Navas,

Director of the Army National Guard Bureau, (5) the State of

Indiana, and (6) Indiana Governor O’ Bannon.

O’ Shell was employed as a full-time federal civil service

career employee for twenty-six (26) years. From 1968 until

January 10, 1992, she worked as a Financial Quality Assurance

Analyst at the Army’s USAFAC, located at FBH, Indiana. She

states that during the last years of her employment, she

experienced discrimination based on gender and also because she

took part in appropriate procedures in an effort to correct the

discrimination. Beginning in June 1987, she was repeatedly

suspended for one to ten days without pay. These suspensions

were later used for “discharge purpose(s].” O’Shell was initially

discharged on June 3, 1988. She was reinstated after a hearing in

October, 1988; however, two suspensions prior to the June

termination were left on her record. It was based on those two

suspensions, as well as issues dealing with compensation and

career development opportunities, that O’Shell filed IP90-1373-C-

M/F.

O’Shell was discharged for a second time on January 10,

1992. She contends that she was discharged that time because

she filed five (5) Title VI/EEO formal complaints against her

superiors, also because she served as a whistle blower in her

federal auditor position, and because she assisted other federal

App. B-7

civilian employees as Pago ai representative. She claims to

have been employed as both a civilian employee of the Army and

a miliary employee of the United States Armed Forces, Guard and

Reserve Components in a part-time position.

III. Discussion

A. Standard Under Rule 12(b)(6)

The defendants challenge the sufficiency of the complaint

pursuant to Rule 12(b). The purpose of a motion to dismiss is to

test the sufficiency of the complaint, not to decide its merits.

Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7* Cir. 1990),

cert. denied, 502 U.S. 855 (1991). In making the assessment

required by the motions to dismiss, the court liberally construes

O’Shell’s allegations and applies the principle that “a complaint

must contain either direct or inferential allegations respecting all

the material elements necessary to sustain a recovery under some

viable legal theory. Herdrich v. Pegram. 1998 WL 483926, *3

(7" Cir. August 18, 1998) (citing Sutliff, Inc. v. Donovan Cos.

Inc., 727 F.2d 648, 654 (7" Cir. 1984)).' Ifa plaintiff pleads

facts which show that she has no claim, then she has pleaded

herself out of court. Early v. Bankers Life & C. asualty Co., 959

F 2d 75, 78 (7" Cir. 1992); Conn v. GATX Terminals Corp., 18

F.3d 417, 419 (7" Cir. 1994). She is not saved by having pleaded

a legal conclusion that if consistent with the facts would establish

his right to relief, for he has shown that it is inconsistent with the

facts. Benson v. Cady, 761 F.2d 335, 338 (7" Cir. 1985).

In lacampo v. Hasbro, Inc., 929 F Supp. 562 (D.R.I. 1996),

1

O’Shell differs from the typical pro se litigant because she is a

licensed attorney. “While we treat pro se litigants gently, a pro

se attomey ts not entitled to special treatment.” Lockhart v.

Sullivan, 925 F.2d 214, 216 n.1 (7 Cir. 1991).

App. B-8

a federal district court cogently held that, “[I]ike a battlefield

surgeon sorting the hopeful from the hopeless, a motion to dismiss

invokes a form of legal triage, a paring of viable claims from

those doomed by law.” Id. At 567. See also Guckenberger v.

Boston University, 957 F.Supp. 306, 313 (D.Mass. 1997). This

technique is well-suited to O’Shell’s action.

B. Analysis

O’Shell invokes a medley of statutes in support of her

complaint: Title VII of the Civil Rights Acts of 1964, as

amended, alleging discrimination based on gender; 42 U.S.C. §

1983, alleging violation of her nghts arising from the First, Fifth,

and Fourteenth Amendments and the Supremacy Clause of the

United States Constitution; and 18 U.S.C. § 241 and 42 U.S.C. §

1985, alleging conspiracy to interfere with her civil rights. She

also invokes federal and state Military Acts.

District courts have orginal jurisdiction over all civil actions

arising under the laws of the United States, see 38 U.S.C. § 1331.

Title VII is one such law, and among other purposes was designed

to protect from discrimination “employees or applicants for

employment ... in military departments ....” 42 U.S.C. §

2000e-16(a). An aggrieved individual bring a civil action against

the government pursuant to 42 U.S.C. § 2000e-16(c), which is

also known as § 717(c) of the Civil Rights Act.

In amending Title VII to include federal employees,

“Congress created ‘an exclusive judicial remedy for claims of

discrimination in federal employment.’” Forest v. United States

Postal Serv., 97 F.3d 137, 141 (6 Cir. 1996) (quoting Brown v.

General Servs. Admin., 425 U.S. 820, 835 (1976)). In Brown.

425 U.S. at 832, the Supreme Court expressed the view that:

The balance, completeness, and structural integrity of § 717 are

App. B-9

inconsistent with the ... contention that the judicial remedy

afforded by § 717(c) was designed merely to supplement other

putative judicial remedies.

The Court’s discussion is based on its view that litigants might

evade “the rigorous administrative exhaustion requirements and

time limitations” of § 717 by recasting Title VII claims as claims

under other statutes and so frustrate the legislative policies

underlying Title VII. /d. At 833. This recasting of claims to

invoke other remedial mechanisms is simply not permitted.

Based on the authoritative construction of § 717 in Brown

and its progeny, therefore, O’Shell’s claims of discrimination

based on statutes other than 42 U.S.C. § 2000e-16(c) are

dismissed for failure to state a claim upon which relief can be

granted. Ramey v. Bowsher, 915 F.2d 731, 734 (D.C Cir. 1990),

cert. denied, 499 U.S. 947 (1991) (tort claim barred by the

exclusivity of Title VII); Castro v. United States. 775 F.2d 399

(1* Cir. 1985) (§ 717 is exclusive judicial remedy for claims of

discrimination in federal employment); Day v. Wayne County Bd.

of Auditors, 749 F.2d 1199, 1204 (6" Cir. 1984) (“[A] federal

employee claiming job discrimination may proceed only under

Title VII, and may not secure additional remedies by proceeding

also under [42 U.S.C.] § 1981.”); DiPompo v. West Point

Military Academy, 708 F Supp. 540, 544 (S.D.N_Y. 1989)

(dismissing 42 U.S.C. § 1985 claims as well as New York State

statutory claims because of Title VII preemption); Carver v

Casey, 669 F Supp. 412, 418-19 (S.D.Fla. 1987) (dismissing §§

1983 and 1986 claims because of Title VII preemption); Person

v. United States Dept. of Agriculture, 593 F Supp. 1054, 1058-

59 (E.D.Wis. 1984) (dismissing claims under 28 U.S.C. §§ 1331,

1343, 2201, and 2202 and Fifth Amendment of the United States

Constitution because of Title VII preemption).

In her complaint, O’Shell freely admits that her claims are

App. B-10

wholly related to her alleged wrongful suspensions and

termination, the last of which occurred in 1992. To the extent

that O’Shell complains about the administrative and judicial

proceedings derived from her 1990 law suit, those claims are also

related to her miliary employment and the subsequent actions of

her federal employer. As a result, O’Shell’s discrimination-based

claims pursuant to federal law other than Title VII cannot be

maintained and must be dismissed.

Further, O’Shell names seven defendants in this action.

Section 717(c) of Title VII directs that “the head of the

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

defendant.” 42 U.S.C. § 2000e-16(c); Blong v. Secretary of the

Army, 877 F.Supp. 1494, 1495 (D.Kan. 1995) (Secretary of the

Army was the only proper defendant in a § 717 case brought by a

civilian employee). Therefore, this court lacks subject matter

jurisdiction over any of the defendants other than Robert Walker,

Acting Secretary of the Army.~ The statutory remedies available

to O’Shell cannot be circumvented by suing individuals im tort.

Bush v. Lucas, 462 U.S. 367, 390 (1983) (barring recovery

against federal employee’s supervisor for defamation).

The defendants assert that Title VII claim is untimely.

Although O’Shell filed a number of administrative charges before

and during the 1990 lawsuit, the most recent right to sue letter she

?To the extent that O’Shell asserts a claim as a uniformed

member of the armed forces as a member of the Indiana National

Guard in a part-time position, her claim fails. Title VII does not

apply to uniformed members of the armed forces. The term

“military dependants” within the section proscribing

discrimination against employees of such departments includes

only civilian employees. Knutson v. Wisconsin Air National

Guard, 995 F.2d 765 (7" Cir.), cert. denied, 510 U.S. 933

(1993); Roper v. Department of the Army, 832 F.2d 247 (2™ Cir.

1987).

App. B-11

alleges to have received was received in November 1992. The

notice informed O’ Shell that she had thirty (30) calendar days to

file an appropriate civil action in federal court. See Randle v.

Bentsen, 19 F.3d 371, 373 (7" Cir. 1994): 5 US.C. § 7703(b)(2).

It is quite apparent-apparent from the face of the complaint

filed on April 13, 1998 - that O’Shell did not file this action

within the 30-day period which pertained to the most recent of the

right-to-sue letter. The timely filing of a Title VII action is a

“condition precedent” to filing suit, and is subject to equitable

modification. Perkins v. Silverstein, 939 F 2d 463, 470 (7" Cir.

1991); see also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89,

95-96 (1990) (“the same rebuttal presumption of equitable tolling

applicable to [Title VII] suits against private defendants should

also apply to suits against the United States”). O’Shell’s

whistleblowing claim is likewise subject to a 30-day period of

limitations for seeking judicial review. See 5 US.C. §§

7702(a)(2), 7703(b)(2); McAdams v. Reno. 64 F 3d 1137, 1142

(8" Cir. 1995) (“Employees pursuing relief through an EEO

mixed case complaint may file a civil discrimination action in

federal district court within 30 days of a final decision by the

agency....”).

The running of the statute of limitations is an appropriate

ground for dismissal if it is apparent on the face of the complaint.

Rylewicz v. Beaton Serv., 698 F.Supp. 1391, 1398 (N.DIil.

1988); see also Jablon v. Dean Witter & Co., 614 F.2d 677, 682

(9hCir. 1980). O’Shell argues vigorously that the present action

was timely filed pursuant to both federal and state law.

Federal law is the proper source for determining whether the

plaintiff's action has been timely brought. The Supreme Court

held in the Occidental Life Ins. Co. of California v. EEOC, 432

U.S. 355 (1977), that it would be inconsistent with federal law to

apply a state statute of limitations to actions instituted by the

App. B-12

EEOC under Title VII since the EEOC was “required by law to

refrain from commencing a civil action until it ha[d] discharged

its administrative duties.” /d. At 368. There is no reason, in

either legal or practical terms, to use any period of limitation

other than that prescribed in Title VII itself to determine when suit

had to be brought. Lopez v. Louisiana Nat'l Guard, 733 F Supp.

1059 (E.D.La. 1990), aff'd, 917 F.2d 561 (5 Cir. 1990).

O’Shell seeks to avoid the straightforward computation of

time with respect to the present claim by suggesting that the

“involuntary dismissal without prejudice” of No. IP 90-1373-C-

M/F on April 3, 1992, saved her cause for refiling at some future

date. This tolling argument is without merit. Generally, a

dismissal without prejudice leaves the situation the same as if the

suit had never been brought. Hilbun v. Goldberg, 823 F.2d 881,

883 (5" Cir. 1987), cert. denied, 485 U.S. 962 (1988). Asa

result, where a case is dismissed, without prejudice, and the

statute of limitations has run, the plaintiff is precluded from re-

filing an action. Petrucelli v. Excel Recycling & Manufacturing,

Inc., 46 F.3d 1298, 1304 n.6 (3™ Cir. 1995).

Further, in the absence of a specific statute to the contrary,

there is no tolling of the statute of limitation for the period of time

during which the action so dismissed was pending. Parker v

Marcotte, 975 F.Supp. 1266 (C.D.Ca. 1997), Wilson v

Grumman Ohio Corp., 815 F.2d 26 (6" Cir. 1987); Bomer v.

Ribicoff, 304 F.2d 427 (6" Cir. 1962). Some courts have held

specifically that a timely claim which is dismissed without

prejudice for failure to prosecute does not toll the statute of

limitations. Dupree v. Jefferson, 666 F.2d 606, 610-11 (D.C.Cir.

1981); Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11"

Cir. 1982); Harris v. City of Canton, Ohio, 725 F.2d 371, 376-

77 (6" Cir. 1984). Other courts have merely assumed the same

proposition, with which this court is in agreement. Porter v.

Beaumont Enterprise and Journal. Inc., 743 F.2d 269, 273 (5®

App. B-13

Cir. 1984), Wei v. State of Hawaii, 763 F.2d 370, 372 (9" Cir.

1985)

O’Shell’s argument that the Indiana law controls the timing

of the refiling of her claims would fare no better, even if the

argument 's premise was sound. In order to characterize this

action as having been timely filed, O’Shell attempts to use the

Indiana savings statute, Ind.Code 34-1 1-8-1 (1998), commonly

known as the Journey Account Statute.> Under certain

circumstances, this statute permits a plaintiff to reinstate a lawsuit

which has suffered procedural default and have the lawsuit

considered a continuation of the original action. See. e.g.,

3

The Seventh Circuit provides an interesting history and rationale

of Indiana's Journey’s Account in Morris v. Jenkins, 819 F.2d

678 (7th Cir. 1987):

At common law, suits frequently failed a decision on their merits

on account of some matter of form. In such cases, the plaintiff

was permitted, within a reasonable time, to sue out a new writ,

and such renewal suit was deemed a continuation of the first. The

tume which was reasonable for such purpose was computed

theoretically with reference to the number of days required for

plamtiff to joumey to the place where the court was held, and

hence the name “Joumey’s Account.” (citations omitted). This

ancient remedy is not now recognized in this country, but, in lieu

thereof, statutes have been passed in nearly all of the states,

providing for a renewal of actions which have failed on account of

some matter not involving the merits. These statutes do not

contemplate a renewal or continuance of the former suit as at

common law under Journey’s Account, but that a new and distinct

suit shall be commenced, which shall be treated as a continuation

of such former suit.

Id. at 679 n.2 (citations omitted)(quoting Pennsylvania Co. v.

Good, 103 N_E. 672, 673 (1913)).

App. B-14

Mayfield v. Continental Rehabilitation Hosp. Of Terre Haute.

690 N.E.2d 738, 741 (Ind.App. 1998); Eves v. Ford Motor Co.,

152 Ind.App. 34, 42-43, 281 N.E.2d 826, 831 (1972) (statute

saves Claim brought in state court after expiration of original

statute of limitations when brought within 5 years after same

action abated by federal district court for jurisdictional reasons);

Abele v. A.L. Dougherty Overseas. Inc., 192 F.Supp. 955, 956-

57 (N.D.Ind. 1961) (statute saves employment action brought in

state court after expiration of original statute of limitations when

brought within 5 years after identical claim dismissed without

prejudice by federal district court). However, an action may be

saved “if a plaintiff commences an action and the plaintiff fails in

the action from any cause except: (1) negligence in the

prosecution of the action .. . a new action may be brought not

later than . . . three (3) years after the date of the determination

under subsection (a)... and be considered a continuation of the

original action commenced by the plaintiff.” IND. CODE § 34-

11-8-1. As already noted, No. IP 90-1373-C-M/F was dismissed

on April 3, 1992, based on O’Shell’s failure to prosecute.

Although O’Shell filed post-judgment motions and an appeal,

those proceedings were not commenced for ten months after the

original action was dismissed. Considering this history, it must

be concluded that neither the letter nor the spirit of Indiana’s

Journey Account Statute can rescue the plaintiff's present action

~ from dismissal.*

S her argument, O’Shell argues that her claim is saved under an

older and now repealed version of this statute. Ind.Code § 34-1-

2-8. The Indiana case law which interpreted that statute held that,

despite statutory language to the contrary, a claim which could be

reinstated under the previous version of the Journey Account

Statute would not be defeated by negligence in the prosecution.

Vesolowski v. Repay, 520 N.E.2d 433, 435-36 (Ind. 1988).

Interestingly, negligence in prosecution is the very reason that

(continued...)

A

4

j

|

;

&|

3

i

4

;

4

i

i

SS ht atid Blac Pade

App. B-15

IV. Conclusion

The plaintiff's federal claims are either not cognizable at all

or barred by the applicable period of limitations within which

such claims had to be brought. With respect to the issue of

timeliness, the parties should recognize that “[s}tatutes of

limitations . . . represent a pervasive legislative judgment that it is

unjust to fail to put the adversary on notice to defend within a

specified period of time and that the right to be free of stale claims

in time comes to prevail over the right to prosecute them.”

Railroad Tel. v. Railway Express Agency, 321 U.S. 342, 349, 64

S. Ct. 582, 586 (1944). Whether considered as the attempted

continuation of O ‘Shell v. Department of the Air Force, IP 90-

1373-C-M/F (S.D.Ind. April 3, 1992), or as asserting new claims,

or both, the plaintiff's federal claims are time-barred.

Accordingly, the defendants’ motions to dismiss are granted. To

the extent that O’Shell asserts pendent state law claims, the

exercise of supplemental jurisdiction such claims is inappropriate

where the federal claims have been dismissed, and the state law

claims are therefore dismissed for lack of jurisdiction. 28 U.S.C.

§ 1367(c).

Judgment consistent with the Entry shall now enter. The

conference set for October 14, 1998, is vacated.

IT IS SO ORDERED.

(s/John D. Tinder

JOHN D. TINDER, Judge

Date: __ 9/28/98 United States District Court

*(...continued)

O’Shell’s 1990 suit was dismissed. In any event, in 1993, the

Indiana legislature amended the Joumey Account Statute to

clarify that it would not save an action which had failed due to

negligence in the prosecution. P.L. 239-1993.

App. C-16

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

July 9, 1999

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. JOEL M. FLAUM, Circuit Judge

Hon. DANIEL A MANION, Circuit Judge

GLORIA K. O’SHELL,

Plaintiff-Appellant,

No. 98-3750 v

UNITED STATES OF

AMERICA, ROBERT M

WALKER, Acting Secretary

of the Army, MAJOR

GENERAL WILLIAM

NAVAS, JR., Director,

Army National Guard

Bureau; et al.,

Defendants- Appellees

a

ee ee ee

ORDER

Appeal from the United

States District Court

for the Souther

District

of Indiana,

Indianapolis

Division.

No. IP 98-0494-C-T/C

John D. Tinder, Judge.

On consideration of the petition for rehearing filed in the

above-entitled case on May 14, 1999, by plaintiff-appellant, no

judge in active service has requested a vote thereon, and all of the

judges on the orginal panel have voted to deny a rehearing.

Accordingly,

App. C-17

IT IS ORDERED that the aforesaid petition for rehearing

be, and the same is hereby DENIED.

App. D-18

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

(Submitted December 17, 1997°)

Before

UNPUBLISHED

ORDER

NOT TO BE CITED

PER CIRCUIT RULE

53

Hon. JOEL M. FLAUM, Circuit Judge

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

GLORIA K. O’SHELL ]

Plaintiff-Appellant. ]

No. 97-2470 V. ]

UNITED STATES ]

DEPARTMENT OF THE ]

AIR FORCE, et al., ]

Defendants-Appellees. ]

]

]

]

ORDER

Appeal from the United

States District Court

for

the Southern District

of

Indiana, Indianapolis

Division.

No. 90 C 1373

Larry J. McKinney,

Judge.

On May 17, 1990, Gloria K. O’Shell commenced an action

After an examination of the briefs and the record, we have

concluded that oral argument is unnecessary, and the appeal is

submitted on the briefs and the record. See Fed. R. App. P.

34(a); Cir. R. 34(f).

*

oe

zt

ve J

Rs

=

edb sak inet Ribs Nnchiewids<rpeid stat

App. D+49

alleging that a number of defendants, all of whom bear some

connection to the United States Army,' discriminated against her

on the basis of her gender. On April 3, 1992, the district court

dismissed O’Shell’s case without prejudice for failure to

prosecute, pursuant to Rule 41(b) of the Federal Rules of Civil

Procedure. Ten months later, O’Shell filed numerous motions,

including a motion for relief from the district court’s order of

dismissal, which the district court construed as a motion pursuant

to Rule 60(b) of the Federal Rules of Civil Procedure. The

district court denied O’Shell’s Rule 60(b) motion and she appeals.

We affirm.

The district court dismissed O’Shell’s case for failure to

prosecute because she exhibited a pattem of failing to comply

with district court deadlines. O’Shell failed to meet filing

deadlines, failed to attend a pre-trial conference, and did not

respond to an Order to Show Cause, which gave her 30 days to

explain why her action should not be dismissed. Prior to the

dismissal, the district court issued two orders waming explicitly

that if she failed to respond to the court’s orders her case might be

dismissed with prejudice.” After O’Shell failed to respond to the

bre included claims against the Departments of the Army and Air

Force, the National Guard Bureau, the United States Army

Finance and Accounting Center, the United States Army Civilian

Appellate Review Agency, and fifteen individual defendants.

Pursuant to a motion by the defendants, the district court

dismissed all of the claims against all of the defendants expect

O’Shell’s claim against the Secretary of the Army under Title VII

of the Civil Rights Act of 1964.

Klthough O’Shell was represented by counsel at the time of the

first order, her counsel had filed a motion to withdraw. The court

granted counsel's motion to withdraw shortly after the issuance of

(continued...)

App. D-20

Order to Show Cause, the district court dismissed her case

without prejudice.

The district court explained that it denied O’Shell’s Rule

60(b) motion for relief from judgment because she had failed to

satisfy any of the criteria identified in the rule. Rule 60(b)

permits a party to seek relief from a final judgment on the grounds

of mistake, inadvertence, excusable neglect, newly discovered

evidence, fraud, or other justifying reason.

‘A trial court’s decision to deny Rule 60(b) relief ‘is entitled

to great deference,’ and is reviewed under the abuse of discretion

standard.” Robb v. Norfolk & Western Ry. Co., 122 F.3d 354,

357 (7 Cir. 1997) (quoting Tobel v. City of Hammond, 94 F 3d

360, 362 (7" Cir. 1996)). “We will find that a district court has

abused its discretion only if no reasonable person could agree

with the district court.” 7obel, 94 F.3d at 362. “Because we are

lumited to the question of whether a district court’s Rule 60(b)

determination involved an abuse of discretion, we do not review

the merits of the underlying judgment, and our review is far

narrower than it would be on direct appeal.” Provident Sav. Bank

v. Popovich, 71 F.3d 696, 698 (7th Cir. 1995). “Relief unde

Rule 60(b) ‘is an extraordinary remedy and is granted only in

exceptional circumstances.’” United States v. 8136 S. Dobston

Street, 125 F.3d 1076, 1082 (7" Cir. 1997) (quoting Dickerson v.

Board of Educ., 32 F.3d 1114, 1116 (7™ Cir. 1994) (citations and

internal quotations omitted)). O’Shell asserts that she was

entitled to relief under Rule 60(b) because of excusable neglect,

?(...continued)

the first warming. The withdrawal of counsel did not excuse

O’Shell’s failure to meet or respond to the district court’s

deadlines because both orders were served upon O’Shell and set

deadlines after the date of counsel’s withdrawal. Moreover,

O’Shell was a licensed attorney at that time.

=

App. D-21

misconduct on the part of her former attomey and the United

States Attomey representing the defendants, and the district

court’s failure to treat her like a typical pro se litigant.

O’Shell argues that she could not meet the d:strict court’s

deadlines because her time was consumed by the administrative

proceedings that the defendants had commenced against her in

relation to her numerous claims of discrimination. She also states

that she lacked adequate time to respond to the deadlines because

she was experiencing stress from the loss of her job, withdrawal

of her attomey, and search for new employment. Additionally,

O’Shell asserts that she did not respond to the Order to Show

Cause because the notice of the order sent to her got mixed up

with one of her tenant’s junk mail.

If O’Shell faced pressing deadlines in the administrative

Proceedings against her, she could have informed the district court

of these proceedings and requested an extension or formal stay

until the conclusion of the administrative proceedings. O’Shell

made no such request to the district court. O’Shell’s decision to

forgo compliance with the district court’s deadlines while she

dealt with the administrative Proceedings does not rise to an

“exceptional circumstance” that requires reversal of the district

court’s denial of her Rule 60(b) motion. “[W]here a party

willfully, albeit through ignorance or carelessness, abdicates its

responsibilities, relief from judgment under Rule 60(b) is not

warranted.” Zuelzke Tool & Engineering Co., Inc. v. Anderson

Die Castings, Inc., 925 F.2d 226, 229 (7" Cir, 1991).

O’Shell next argues that defense counsel and her attomey

committed misconduct in violation of Indiana’s Rules of

Professional Conduct by failing to inform the district court judge

of the pending administrative Proceedings. The argument is

unconvincing. “[T]he pro se status of an opponent does not

impose any special duty on a litigant.” Provident Sav. Bank. 7]

App. D-22

F 3d at 699. It was O’Shell who bore the burden of informing the

district court why she could not comply with the deadlines.

O’Shell also asserts that the defendants’ purpose in commencing

additional administrative proceedings against her was to obstruct

her from meeting the district court’s deadlines. However, O’Shell

fails to identify any facts that support her claim that the

defendants acted unlawfully in filing administrative proceedings.

In an attempt to support her assertion that the district court

abused its discretion in denying her Rule 60(b) motion. O’Shell

states that the district court improperly recognized that she was a

licensed attomey and treated her differently than a typical pro se

litigant. This argument is unavailing because we have noted that

‘“[w]hile we treat pro se litigants gently, a pro se attomey is not

entitled to special treatment.” Lockhart v. Sullivan, 925 F.2d

214, 216n.1 (7" Cir. 1991).

O’Shell raises for the first time in this appeal that she is

entitled to relief because the district court dismissed her

underlying claim “without prejudice” This issue is waived as it

was not presented to the district court. Oates v. Discovery Zone,

116 F.3d 1161, 1168 (7" Cir. 1997); Beshear v. Weinzapfel, 474

F.2d 127, 133 (7 Cir. 1973). Additionally, O’Shell raises

several issues that relate to the dismissal of her cause of action;

however, on review of the denial of a Rule 60(b) motion we do

not review the merits of the underlying claim. Provident Sav.

Bank, 7\ F.3d at 698. Lastly, O’Shell’s argument that the district

court improperly denied her request to amend or supplement her

claims with a 118 page “Supplemental Verified Amended

Complaint” is without merit. Viacom, Inc. v. Harbridge

Merchant Services, Inc., 20 F.3d 771, 784-85 (7" Cir. 1994) (a

plaintiff generally must succeed in setting aside the judgment

before seeking leave to amend the complaint).

O’Shell failed to demonstrate an “exceptional circumstance”

App. D-23

that would entitle her to relief from the district court’s judgment.

_ Therefore, the district court did not abuse Its dis

cretion in denying

her Rule 60(b) motion.

AFFIRMED.

App. E-24

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

GLORIA K. O’SHELL,

Plaintiff,

CAUSE NO IP 90-1373 C

M/F

)

)

)

)

)

)

TOGO D. WEST, JR., )

SECRETARY OF THE ARMY,)

UNITED STATES )

DEPARTMENT OF THE )

ARMY,' )

Defendant. )

ORDER ON PLAINTIFF’S MOTION FOR RELIEF FROM

JUDGMENT

In the instant case, Plaintiff Gloria K. O’Shell alleged that a

large group of defendants, all of whom bear some connection to

the United States Army, discriminated against her on the basis of

her gender. O’Shell filed her initial complaint on May 17, 1990,

but this Court dismissed the matter on April 3, 1992, based upon

O’Shell’s failure to prosecute her claim. Ten months later,

O’Shell filed numerous motions, including a motion for relief

from this Court’s order of dismissal, which this Court has treated

as a motion under Rule 60(b) of the Federal Rules of Civil

Procedure. Three years passed before these motions received the

consideration of this Court, and all the motions aside from the

1

Togo D. West, Jr., the current Secretary of the Army, has been

automatically substituted as the proper defendant to this action

pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

App. E-25

60(b) motion have been denied. On October 4, 1996, this Court

directed the parties to complete an additional round of briefing

pertaining to the pending 60(b) motion, and the parties have

complied with this order. Upon review of these briefs and the

materials incorporated by reference, this Court now DENIES

O’Shell’s motion for relief from the dismissal order.

To place the present 60(b) motion in context requires a

review of the events leading up to this Court’s dismissal of the

action - - as well as other, more recent, events. When O’Shell

initially filed this action on May 17, 1990, she included claims

against the Departments of the Army and Air Force, the National

Guard Bureau, the United States Army Finance and Accounting

Center, the United States Army Civilian Appellate Review

Agency, and fifteen individual defendants. Only July 25, 1990,

the defendants moved for dismissal of all of the claims against all

of the defendants aside from O’Shell’s claim against the Secretary

of the Army (“Secretary”) under Title VII of the Civil Rights Act

of 1964. In an order dated September 24, 1990, this Court

granted the defendants’ motion and dismissed all of the defendants

except for the Secretary and all of the claims except for the Title

VII claim.

On October 19, 1990, the Secretary filed a motion to

dismiss under Rule 8 of the Federal Rules of Civil Procedure.

According to the Secretary, the thirty-one page complaint violated

the Rule’s requirement that a pleading should include “‘a short and

plain statement of the claim....” Fed R. Civ. P.8(a). In an

order dated July 31, 1991, this Court agreed that the plaintiff's

allegations were “confusing and at times rambling” but declined

to dismiss the action. Instead, this Court directed O’Shell to file

an amended complaint in compliance with Rule 8(a). O’Shell

complied with this order and filed an amended complaint on

August 13, 199].

App. E-26

On September 23, 1991, this Court issued a pretrial

scheduling order which established deadlines for filing of

contentions and discovery matter. Of particular relevance, this

order directed O’Shell to file her contentions “on or before

Jenuary 3, 1992....” On January 13, 1992, James Kelly,

O’Shell’s attorney, filed a motion to withdraw as counsel of

record. While this motion was still pending, this Court issued an

order, dated February |19, 1992, noting that O’Shell had failed to

file her contentions in a timely fashion. This order then directed

O’Shell to file her contentions by March 13, 1992. The order

also stated: “Should the plaintiff fail to respond to this Order of

the Court, this matter may be dismissed with prejudice.” In

addition, this order scheduled a pretrial conference for February

28, 1992. The order was served upon O’Shell and counsel for the

United States. In a separate order bearing the same date, this

Court granted Kelly's motion to withdraw as plaintiff's counsel

This order was also served upon O’Shell and counsel for the

United States

On February 28, 1992, counsel for the United States

attended the pretrial conference, but O’Shell did not. That same

date, this Court issued an order to show cause, which gave

O’Shell thirty days to inform the Court why her cause of action

should not be dismissed. This order specifically stated that a

failure to show good cause would result in dismissal of her

claims. Because O’Shell did not respond to the order to show

cause, this Court issued an order on April 3, 1992, dismissing her

cause of action pursuant to Federal Rule 41(b) based upon her

failure to prosecute her claims.

Ten months later, on February 8, 1993, O’Shell filed her

own appearance in this action~ along with several other motions -

(continued...)

App. E-27

~ meluding a “Verified Motion for Relief from 3 April 1992 Order

of Dismissal without Prejudice” (“Motion for Relief’). O’Shell

also filed a motion to supplement and amend her complaint - - as

well as a 131-page amended complaint. Through this amended,

O’Shell sought to state claims against forty-one different

defendants, including several whom this Court had previously

dismissed from the action. In an entry dated October 4, 1996

(“October Order’), this Court denied most of O’Shell’s pending

motions. Rather than simply reject O’Shell’s Motion for Relief

out of hand, however, this Court indicated that the motion would

be treated as having been filed under Rule 60(b) of the Federal

Rules of Civil Procedure. The October Order then directed the

Parties to submut an additional round of briefs addressing whether

O’Shell had a “meritorious claim or defense” under Title VII. To

be more specific, the Secretary had previously filed a brief

pertaining to certain 12(b) defenses; in this brief. the Secretary

argued that O’Shell had failed to file a timely charge of

discrimination with the Equal Employment Opportunity

Commission. The October Order instructed the parties to further

develop this issue “for the purpose of determining whether the

plaintiff has a meritorious claim which can be adjudicated, even if

a further basis for granting Rule 60(b) relief can be found.” Both

parties have submitted briefs as ordered.

Although the October Order directed the parties to focus

their attentions upon whether O’Shell filed a timely EEOC

charge, this Court now considers it more appropriate to being the

inquiry by examining whether O’Shell’s Motion for Relief meets

the requirements of Rule 60(b). The Federal Rules enumerate

*(..continued)

O’Shell differs from the more typical pro se litigant in that she is

a licensed attorney. “While we treat RIO sé litigants gently, a pro

&€ attomey is not entitled to special treatment.”

Sullivan, 925 F.2d 214, 216n.1 (7 Cir. 1991).

App. E-28

several instances under which a party may seek and obtain relief

from a court’s judgment. As one example, a court may “grant

relief from a judgment under the particular circumstances listed”

in Rule 60(b). Russell vy. Delco Remy Div. Of General Motors

Corp., 51 F.3d 746, 749 (7" Cir. 1995). In relevant part, this

rules states:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly

Discovered Evidence; Fraud, Etc. On motion and upon such

terms as are just, the court may relieve a party or a party’s legal

representative from a final judgment, order, or proceeding for the

following reasons: (1) mistake, inadvertence, surprise, or

excusable neglect; (2) newly discovered evidence which by due

diligence would not have been discovered in time to move for a

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

denominated intrinsic or extrinsic), misrepresentation, or other

misconduct of an adverse party; (4) the judgment is void; (5) the

judgment has been satisfied, released or discharged, or a prior

judgment upon which it is based has been reversed or otherwise

vacated, or it is no longer equitable that the judgment should have

prospective application; or (6) and other reason justifying relief

from the operation of the judgment. The motion shall be made

within a reasonable time, and for reasons (1), (2), and (3) not

more than one year after the judgment, order, or proceeding was

entered or taken.

Fed. R. Civ. P. 60(b). In addition, it is important to note that

“[rJelief under Rule 60(b) is an extraordimary remedy that is to be

granted only in exceptional circumstances.” Provident Sav. Bank

v. Popovich, 71 F.3d 696, 698 (7" Cir. 1995); Russell, 51 F.3d at

749. “[Whhere a party willfully, albeit through ignorance or

carelessness, abdicates its responsibilities, relief from judgment

under Rule 60(b) is not warranted.” Zuelzke Tool & Eng’g Co.

y. Anderson Die Castings, Inc., 925 F.2d 226, 228 (7 Cir.

1991). The decision of whether to grant or deny a Rule 60(b)

i

App. E-29

motion is “committed to the district court’s sound discretion.”

Russell, 51 F.3d at 749.

O’Shell’s Motion for Relief does not satisfy any of the

criteria identified by Rule 60(b). This Court dismissed O’Shell’s

cause of action because she failed to meet the deadlines

established in the pretrial scheduling order, because she failed to

appear for a pretrial conference, and because she failed to respond

to an order of this Court which gave her thirty days to explain

why her cause of action should be dismissed. The Motion for

Relief does not attempt to attribute these failures to “mistake.

inadvertence, surprise, or excusable neglect,” so Rule 60(b)(1)

does not apply. Similarly, O’Shell has not identified any “newly

discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule 59(b),” so

Rule 60(b)(1) offers her no assistance 2

Rule 60(b)(3) allows a party to seek relief from a final

judgment based upon “fraud... . misrepresentation, or other

misconduct of an adverse party....” In the Motion for Relief.

O’Shell asserts that the defendant “unlawfully and intentionally

obstructed” her from complying with the pretrial scheduling order

by filing additional proceedings against her. Moreover, she

asserts that the defendants’ attomey “unethically and improperly

she Motion for Relief does incorporate by reference O’Shell’s

second amended complaint, which offers extensive factual

discussion of O’Shell’s claims. However, O’Shell does not

indicate in her Motion for Relief that this complaint contains any

facts which could not have been discovered in time to file a Rule

59(e) motion. More importantly, the second amended complaint

has itself been stricken from the record. To allow O’Shell to

obtain relief from judgment by relying upon facts contained in a

document which has already been explicitly excluded from any

subsequent proceeding would make little sense.

App. E-30

acted to take advantage” of her ‘unrepresented status.’” Under

the circumstances, this Court does not believe these allegations

support the “extraordinary remedy” of Rule 60(b) relief. First,

O’Shell has not identified any facts to support her claim that the

defendants acted unlawfully in filing the additional proceedings.

Second, it is inappropriate for O’Shell to claim that the defendants

took advantage of her unrepresented status. This Court’s order

wamed that dismissal would result if she did not show good

cause, as an attorney herself, O’Shell should have known she

could only avoid that result by filing some sort of response.

Third, and most importantly, O’Shell has never fully

explained why she failed to meet the deadlines established by the

pretrial scheduling order and the order of February 28, 1992. If

she faced pressing deadlines in the separate proceedings against

her, she could have informed this Court of that fact. She could

have also requested a formal stay of this action pending resolution

of the administrative proceedings. To have notified this Court of

the additional proceedings would have likely satisfied this Court’s

request for her to show good cause why her action should not be

dismissed. O’Shell did not exercise any of these options. Stated

sumply, O’Shell has requested relief from judgment based upon

actions which occurred before this Court entered that judgment.

If she would have notified the Court of her inability to respond to

the prior orders, then her action would not have been dismissed in

the first place. These circumstances do no warrant Rule 60(b)

relief.

The two remaining specific criteria of Rule 60(b) are equally

unavailing to O’Shell. Nothing suggests that the prior judgment

is void, so Rule 60(b)(4) does not apply. Similarly, Rule 60(b)(5)

is inapplicable because there ts no indication that “the judgment

has been satisfied, released or discharged, or a prior judgment

upon which it is based has been reversed or otherwise vacated, or

it 1s no longer equitable that the judgment should have prospective

App. E-31

application... .”

The Rule contains a catch-all Provision, which allows a

court to grant a 60(b) motion based upon “‘any other reason

justifying relief from the operation of the judgment.” Fed. R. Civ.

P. 60(b)(6). This provision could encompass O’Shell’s argument

that defense counsel and her attomey had a duty to inform this

Court of the additional Proceedings against her. However, this

argument lacks credence. O’Shell has identified no legal

authority suggesting that either the United States Attomey or her

attomey - - who withdrew as her representative before this Court

asked her to give good cause why her action should be dismissed -

- bore any duty to notify this Court of Separate administrative

proceedings. Ultimately, this Court believes that duty fell upon

O’Shell’s own shoulders. Once again, if she would have notified

this Court of her difficulty meeting the pretrial deadlines, this

Court could have rescheduled those deadlines or stayed the

Proceeding. O’Shell may not use a 60(b) motion to obtain relief

from a dismissal which she could have avoided by paying diligent

attention to the action she had filed.

In conclusion, this Court would emphasize that Rule 60(b)

“was intended to address mistakes attributable to special

circumstances... .” Russell, 51 F.3d at 749 No special

circumstances exist in the Present case. If O’Shell would have

notified this Court of the additional Proceedings against her, this

Court could have given her additional time or entered a Stay.

Under the circumstances, Rule 60(b) relief would be

inappropriate. Therefore, this Court now DENIES O’Shell’s

Motion for Relief. The order of dismissal shall remain in effect

as previously entered.

IT IS SO ORDERED THIS 16% day of April, 1997.

App. F-32

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Dated March 9, 1998

Before

Hon. JOEL M. FLAUM, Circuit Judge

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

GLORIA K. O’SHELL, ] Appeal from the United

Plaintiff-Appellant. ] — States District Court

for

No. 97-2470 V. ] the Southern District

of

UNITED STATES ] Indiana, Indianapolis

DEPARTMENT OF THE ] Division

AIR FORCE, et al., ]

Defendants-Appellees. ] No. 90 C 1373

J

] Larry J. McKinney,

] Judge.

ORDER

On consideration of the petition for rehearing filed by

plaintiff-appellant on February 23, 1998, all members of the panel

have voted to DENY the petition. Accordingly,

IT IS ORDERED that the petition for rehearing be, and the

same is hereby, DENIED.

App. G-33

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

GLORIA K. O’SHELL,

Plaintiff.

MICHAEL P.W. STONE.

Secretary of the Army,

)

)

)

V. ) CAUSE NO. IP 90-1373-C

)

)

)

Defendant )

ORDER OF DISMISSAL

The plaintiff having failed to show Cause why this cause

should not be dismissed for failure to prosecute, pursuant to Rule

41(b) of the Federal Rules of Civil Procedure, this cause is now

ORDERED DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED this 3 day of April, 1992.

LARRY J. McKINNEY, JUDGE

United States District Court

Souther District of Indiana

App. H-34

United S Constituti

Article 2 § 2 U.S. Constitution

“[1] The President shall be commander in chief of the Army and

Navy of the United States, and of the militia of the several states,

when called into the actual service of the United States...”

Article 4 § 1] U.S. Constitution

‘Full faith and credit shall be given in each state to the public

acts, records and judicial proceedings of every other state. And

the congress may by general laws prescribe the manner in which

such acts, records and proceedings shal! be proved, and the effect

thereof.”

Amendment 2 U.S. Constitution

‘A well-regulated militia being necessary to the security of a free

state, the nght of the people to keep and bear arms, shall not be

infringed.”

Amendment 14 U.S. Constitution

‘All persons bom or naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of the United States and of

the state wherein they reside. No state shall make or enforce any

law which shall abridge the privileges or immunities of citizens of

the United States; nor shall any state deprive any person of life,

liberty, or property without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

Indiana Constituti

Article | § 12

‘All courts shall be open; and every person for injury done to him

in his person, property or reputation shall have remedy by due

course of law. Justice shall be administered freely, and without

purchase, completely, and without denial; speedily and without

App. H-35

delay.”

Article 1 § 23

“The General Assembly shall not grant to any citizen, or class of

citizens, privileges or immunities which, open the same terms,

shall not equally belong to all citizens.”

Article 1 _§ 24

“No ex post facto law, or law impairing the obligation of

contracts, shall ever be passed.”

Article ] § 33

“The mulitary shall be kept in strict subordination to the civil

power.”

Article 4 § 23

“In all cases enumerated in the preceding Section [§ 22; Local or

special laws forbidden], and in all other cases where a general law

can be made applicable, all laws shall be general, and of uniform

operation throughout the State.”

Article 4 § 27

“Every statute shall be a public law, unless otherwise declared in

the statute itself.”

Article 5 § 12

“The Governor shall be commander-in-chief of the armed forces,

and may call out such forces, to execute the laws or to suppress

insurrection, or to repel invasion.”

Article 12 § 1 & § 2

§ 1 “A militia shall be provided... (and) may be divided into

active and inactive classes and consist of such military

organizations as may be provided by law.”

—

App. H-36

§ 2 “The Governor is Commander-in-Chief of the militia and

other military forces of this state.”

Article 15 § 1

“All officers, whose appointment is not otherwise provided for in

this Constitution, shall be chosen in such manner as now is, or

hereafter may be, prescribed by law.”

Article I5§4 —

“Every person elected or appointed to any office under this

constitution, shall, before entering on the duties thereof, take an

oath or affirmation to support the Constitution of this State and of

the United States, and also an oath of office.”

USC.

§ 2301. Merit system principles

(a) This section shall apply to -

(1) an Executive Agency; and

(b) Federal personnel management should be implemented

consistent with the following merit system principles:

(2) All employees ... should receive fair and equitable

treatment in all aspects of personnel management without

regard to political affiliation, race, color, religion, national

origin, sex, marital status, age, or handicapping condition,

and with proper regard for their privacy and constitutional

rights.

(9) Employees should be protected against reprisal for the

lawful disclosure of information which the employees

reasonably believe evidences --

(A) a violation of any law, rule or regulation, or

2USC.

App. H-37

§ 2302. Prohibited personnel practices

(a)(1) For the purpose of this title, “prohibited personnel

practice” means any action described in subsection (b) of this

section.

(2) For the purpose of this section --

(A) “personnel action” means --

(ili) an action under chapter 75 of this title or other

disciplinary or corrective action:

(B) “covered position” means, with respect to any personnel

action, any position in the competitive service .. .

(C) “agency means and Executive agency...

(b) Any employee who has authority to take, direct others to

take, recommend, or approve any personnel action, shall not, with

respect to such authority --

(1) discriminate for or against any employee or applicant

for employment --

(A) on the basis of race, color religion, sex or national

origin, as prohibited under section 717 of the Civil Rights

Act of 1964 (42 U.S.C. 2000e-16):

(9) take ox fail to take, or threaten to take or fail to take,

any personnel action against any employee or applicant for

employment because of --

(A) the exercise of any appeal, complaint, or

grievance right granted by any law, rule, or regulation:

(B) testifying for or otherwise lawfully assisting any

individual in the exercise of any night referred to in

subparagraph (A);

(D) for refusing to obey an order that would require

the individual to violate a law:

App. H-38

(10) discriminate for or against any employee or applicant

for employment on the basis of conduct which does not

adversely affect the performance of the employee or applicant

or the performance of others ....

(11) take or fail to take any other personnel action if the

taking of or failure to take such action violates any law, rule,

or regulation implementing, or directly concerning, the merit

system principles contained in section 2301 of this title.

(c) The head of each agency shall be responsible for the

prevention of prohibited personnel practices, for the compliance

with and enforcement of applicable civil service laws, rules, and

regulations, and other aspects of personnel management, and for

ensuring (in consultation with the Office of Special Counsel) that

agency employees are informed of the nghts and remedies

available to them under this chapter and chapter 12 of this title.

Any individual to whom the head of an agency delegates authority

for personnel management, or for any aspect thereof, shall be

similarly responsible within the limits of the delegation.

(d) This section shall not be construed to extinguish or lessen

any effort to achieve equal employment opportunity through

affirmative action or any right or remedy available to any

employee or applicant for employment in the civil service under --

(1) section 717 of the Civil Rights Act of 1964 (42 U.S.C.

2000e-16), prohibiting discrimination on the basis of race,

color, religion, sex, or national ongin;

SUS.C.

§ 7513. Cause and procedure

(a) Under regulations prescribed by the Office of Personnel

Management, an agency may take an action covered by this

subchapter against an employee only for such cause as will

promote the efficiency of the service.

(d) An employee against whom an action is taken under this

App. H-39

section is entitled to appeal to the Merit Systems Protection Board

under section 7701 of this title.

SUS.C.

§ 7701. Appellate procedures

(a) An employee . . . may submit an appeal to the Merit

Systems Protection Board from any action which is appealable to

the Board under any law, rule, or regulation. An appellant shall

have the right....

(c)(2) Notwithstanding paragraph (1), the agency's decision

may not be sustained under subsection (b) of this section if the

employee....

(B) shows that the decision was based on any prohibited

personnel practice described in section 2302(b) of this title; or

(C) shows that the decision was not in accordance with

law.

SUSC.

§ 7702. Actions involving discrimination

(a1) Notwithstanding any other provision of law, and except

as provided in paragraph (2) of this subsection, in the case of any

employee .. . who --

: (A) has been affected by an action which the employee or

applicant may appeal to the Merit Systems Protection Board,

and

(B) alleges that a basis for the action was discrimination

prohibited by --

(i) section 717 of the Civil Rights Act of 1964 (42

U.S.C. 2000e-16

the Board shall, within 120 days of the filing of the appeal, decide

both the issue of discrimination and the appealable action in

App. H-40

accordance with the Board's appellate procedures under section

7701 of this title and this section

(3) Any decision of the Board under paragraph (1) of this

subsection shall be a judicially reviewable action as of --

(A) the date of issuance of the decision if the employee or

applicant does not file a petition with the Equal Employment

Opportunity Commussion under subsection (b)(1) of this

section, or

(B) the date the Commission determines not to consider

the decision under subsection (b)(2) of this section

(b)(1) An employee or applicant4nay, within 30 days after

notice of the decision of the Board under subsection (a) 1) of this

section, petition the Commussion to consider the decision

(2) The Commission shali, within 30 days after the date of the

petition, determine whether to consider the decision. A

determimation of the Commission not to consider the decision may

not be used as evidence with respect to any issue of discrimination

in any judicial proceeding concering that issue

(e)( 1) Notwithstanding any other provision of law, if at any

tume after -

(A) the 120” day following the filing of any matter

described in subsection (a)(2) of this section with an agency,

there 1s no judicially reviewable action under this section or an

appeal under paragraph (2) of this subsection:

(B) the 120” day following the filing of an appeal with the

Board under subsection (a) 1) of this section, there is no

judicially reviewable action (unless such action is not as the

result of the filing of a petition by the employee under

subsection (b)( 1) of this section, or

(C) the 180" day following the filing of a petition with the

Equal Employment Opportunity Commission under subsection

(b)( 1) of this section, there is no final agency action under

subsection (b), (c), or (d) of this section,

App. H-4]

an employee shall be entitled to file a civil action to the same

extent and in the same manner as provided in section 71 7(c) of the

Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c))....

(2) If, at any time after the 120" day following the filing of

any matter described in subsection (a)(2) of this section with an

agency, there is no judicially reviewable action, the employee may

appeal the matter to the Board under subsection (a)(1) of this

section

(3) Nothing in this section shall be construed to affect the right

to trial de novo under any provision of law described in

subsection (a)(1) of this section after a judicially reviewable

action, including the decision of an agency under subsection

(a2) of this section.

SUSC

§ 7703. Judicial review of decisions of the Merit Systems

Protection Board

(2) Cases of discrimination subject to the provisions of section

7702 of this title shall be filed under section 717(c) of the Civil

Rights Act of 1964 (42 U.S.C. 2000e-16(c))....

Notwithstanding any other provision of law, any such case filed

under any such section must be filed within 30 days after the date

the individual filing the case received notice of the judicially

reviewable action under such section 7702.

(c). « . except that in the case of discrimination brought under

any section referred to in subsection (b)(2) of this section, the

employee or applicant shall have the right to have the facts

subject to trial de novo by the reviewing court.

App. H-42

4USC

§ 1981a. Damages in cases of intentional discrimination in

employment.

(a) Right of recovery

(1) Civil mghts

In an action brought by a complaining party under

section 706 or 717 of the Civil Rights Act of 1964 (42 U.S.C.

2000e-5) [42 U.S.C.A. §§ 2000e-5 or 2000e-16] against a

respondent who engaged in unlawful intentional discrimination

(not an employment practice that 1s unlawful because of its

disparate impact) prohibited under section 703, 704, or 717 of

the Act (42 U.S.C. 2000e-2 or 2000e-3) [42 US.C.A. §§

2000e-2, 2000e-3, or 2000e-16], and provided that the

complaining party cannot recover under section 1981 of this

title, the complaining party may recover compensatory and

punitive damages as allowed in subsection (b) of this section,

in addition to any relief authorized by section 706(g) of the

Civil Rights Act of 1964 [42 U.S.C.A. § 2000e-5(g)], from

the respondent.

(b) Compensatory and punitive damages

(1) Determination of punitive damages.

A complaining party may recover punitive damages

under this section against a respondent (other than a

government, governmental agency or political

subdivision) if the complaining party demonstrates that

the respondent engaged in a discriminatory practice or

discriminatory practices with malice or with reckless

indifference to the federally protected nghts of an

aggrieved individual.

(c) Jury tral

If a complaining party seeks compensatory or punitive

damages under this section --

(1) any party may demand a trial by jury; and

App. H-43

(2) Discriminatory practice

The term “discriminatory practice” means the

discrimination described in paragraph (1)... of subsection (a)

of this section.

42USC.

§ 1985. Conspiracy to interfere with civil rights

(3) Depriving persons of rights or privileges

If two or more persons in any state or Territory conspire . . .

for the purpose of depriving, either directly or indirectly, any

person or class of persons of the equal protection of the laws, or

of equal privileges and immunities under the laws; or for the

purpose of preventing or hindering the constituted authorities of

any State or Territory from giving or securing to all persons

within such State or Territory the equal protection of the laws .. .

in any case of conspiracy set forth in this section, if one or more

person engaged therein do, or cause to be done, any act in

furtherance of the object of such conspiracy, whereby another is

incurred in his person or property, or deprived of having and

exercising any right or privilege of a citizen of the United States,

the party so injured or deprived may have an action for the

recovery of damages, occasioned by such injury or deprivation,

against any one or more of the conspirators.

42U SC.

§ 1986. Action for neglect to prevent mi

Every person who, having knowledge that any of the wrongs

conspired to be done, and mentioned in section 1985 of this title,

are about to be committed, and having power to prevent or aid in

preventing the commission of the same, neglects or refuses so to

do, if such wrongful act be committed, shall be liable to the party

injured, or his legal representatives, for all damages caused by

such wrongful act, which such person by reasonable diligence

App. H-44

could have prevented, and such damages may be recovered in an

action on the case, and any number of person guilty of such

wrongful neglect or refusal may be joined by defendants in the

action....

42USC.

§ 2000e-3. Other unlawful employment practices

(a) Discrimination for making charges, testifying, assisting, or

participating in enforcement proceedings.

It shall be an unlawful employment practice for an employer to

discriminate against any of his employees . . . because he has

opposed any practice made an unlawful employment practice by

this subchapter, or because he has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under this subchapter.

42USC.

§ 2000e-16. Employment by Federal Government

(a) Discriminatory practices prohibited; employees or applicants

for employment subject to coverage

All personnel actions affecting employees .. . in military

departments as defined in section 102 of Title 5 . . . shall be made

free from any discrimination based on race, color, religion, sex ,

or national ongin.

(c) Civil action by employee . . . for redress of grievances; time

for bringing of action; head of department, agency, or unit

as defendant

Within 90 days of receipt of notice of final action taken by a

department, agency, or unit referred to in subsection (a) of this

section, or by the Equal Employment Opportunity Commission

upon an appeal from a decision or order of such department,

agency, Or unit on a complaint of discrimination based on race,

color, religion, sex or national ongin brought pursuant to

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

—————EEee =

App. H-45

succeeding Executive orders, or after one hundred and eighty days

from the filing of the initial charge with the department, agency,

or unit or with the Equal Employment Opportunity Commission

on appeal from a decision or order of such department, agency, or

unit until such time as final action may be taken by a department,

agency, or unit an employee . . . if aggrieved by the final

disposition of his complaint, or by the failure to take final action

on his complaint may file a civil action as provided in section

2000e-5 of this title, in which civil action the head of the

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

defendant.

(d) Section 2000e-5(f) through (k) of this title applicable to civil

actions

The provisions of section 2000e-5(f) through (k) of this title,

as applicable, shall gover civil actions brought hereunder, and

the same interest to compensate for delay in payment shall be

available as in cases involving nonpublic parties. '

(e) Governmental agency or official not relieved of

responsibility to assure nondiscrimination in employment or

equal employment opportunity.

Nothing contained in this Act shall relieve any Government

agency or official of its or his primary responsibility to assure

nondiscrimination in employment as required by the Constitution

and statutes or of its or his responsibilities under Executive Order

11478 relating to equal employment opportunity in the Federal

Government.

28USC.

§ 1652. State laws as rules of decision

The laws of the several states, except where the Constitution

or treaties of the United States or Acts of Congress otherwise

require or provide, shall be regarded as rules of decision in civil

So in original.

ee

App. H-46

actions in the courts of the United States, in cases where they

apply.

Ind. Code

34-1-2-8 |New actions; continuation of action

Sec. 8. If, after the commencement of an action, the plaintiff

fails therein, from any cause except negligence in the prosecution,

or the action abate, or be defeated by the death of a party, or

judgment be arrested or reversed on appeal, a new action may be

brought within five (5) years after such determination, and be

deemed a continuation of the first, for the purposes herein

contemplated.

Ind. Code

34-1-2-2 General Limitations

Sec. 2. The following actions shall be commenced within the

period herein prescribed after the cause of action has accrued, and

not afterwards:

(6) Upon contracts in writing other than those for the payment

of money . . . within ten (10) years. However, upon contracts in

writing other than those for the payment of money entered into

before September |, 1982 . . . action must be commenced within

twenty (20) years.

Ind. Code

10-2-1-1. Short title. — This article shall be known and may be

cited as the Indiana Military Code.

lnd, Code

10-2-1-2. Definitions ....

‘Federally recognized national guard” denotes that portion of the

Indiana national guard which has met all the requirements for,

and has been recognized by, the national military establishment as

App. H-47

a part of the reserve components of the armed forces of the United

States...

“National Guard” may apply to the national guard of Indiana or

the national guard of the United States according to the tenor of

the appropriate section.

“Officer” shall mean commissioned officer, including warrant

officer, in the armed forces of the state of Indiana.

Ind. Code

10-2-3-4 National guard; officers; eligibility

Sec. 4. All officers shall be commissioned by the governor,

who shall be and is, ex officio, the commander in chief, and no

person shall be commissioned in the national guard of this state,

unless that person is a citizen of the state. No commission shall

be issued to any officer of the national guard except to general

officers until such officer shall have passed a satisfactory

examination before a board as to the officer's knowledge of

military affairs proportionate to the office to be held and the

officer’s general knowledge and fitness of the service. No person

shall be eligible for appointment to the office of major-general to

command the national guard or as a brigadier-general, unless that

person has served ten (10) years as a commissioned officer of the

national guard or army of the United States. No person shall be

eligible for appointment to any staff, other than the governor's

honorary staff, corps or department unless that person has the

technical training requisite to qualify for such appointment, to be

determined by the examining board appointed for the purpose.

Ind. Code

10-2-3-5 National guard, officers; eligibility; preference in

appointment

Section 5. No person shall be commissioned as an officer of

the national guard . . . unless that person has successfully passed

such tests as to physical, temperamental, and professional fitness

Fa NE eT

App. H-48

as may be prescribed by the laws and regulation s applicable to

the federally recognized national guard....

Ind. Code

10-2-3-6 National guard; officers; discharge; inactive national

guard

Section 6. At any time, the moral character, capacity, and

general fitness for the service of any national guard officer may

be determined by an efficiency board of three (3) commissioned

officers, senior in rank to the officer whose fitness for service

shall be under investigation, such board to be convened by the

governor, and if the findings of such board shall be unfavorable to

such officer and be approved by the governor, the officer shall be

discharged....

Ind. Code

10-2-3-7 National guard; officers; oath

Sec. 7. Each commissioned officer of the national guard of

Indiana before entering upon the duties of his office, shall take

and subscribe to the following oath, or such other oath as may be

required by national guard regulations:

a , do solemnly swear that I will support and

defend the Constitution of the United States and the

constitution of the state of Indiana against all enemies, foreign.

and domestic; that I will bear true faith and allegiance to the

same; that I will obey the orders of the President of the United

States and the governor of the state of Indiana, that I make this

obligation freely, without any mental reservation or purpose of

evasion, and that I will well and faithfully discharge the duties

of the office of _, in the national guard of the state

of Indiana upon which I| am about to enter, so help me God.”

Ind. Code

10-2-3-10 Uniform code of military justice; customs and usage

of armed forces of the United States

App. H-49

Sec. 10. All matters relating to organization, commissioning

and separation of officers . . . discipline. and government of the

national guard, not otherwise provided in IC 10-2, shall be

decided by the uniform code of military justice governing the

armed forces of the United States, the regulations, customs, and

usage of the armed forces of the United States and/or national

guard regulations.

Ind. Code

10-2-7-11 Trustee; other funds; separate funds

Sec. 11. The govemor, as trustee, is hereby authorized to

receive from the secretary of defense of the United States, such

funds, designated as ‘“Other Funds,” as are now in the custody of

the secretary of defense, and which were collected by certain

national guard organizations of this state for their own use and

benefit .... The governor, as trustee, is likewise authorized to

receive from any branch of the United States government any

military funds which may at any time be recovered from the

United States govemment. The funds so received shall be paid

into the state treasury and shall be kept as a separate and distinct

fund and shall be distributed for the benefit of the national guard

of this state, and such sums are hereby appropriated, in such

manner as the governor, in his discretion, shall determine.

App. I-50

INDIANA CIVIL RIGHTS COMMISSION

Gloria K. O’Shell DOCKET NO.

EMse91020205

VS. EEOC NO. 240910017

Indiana Army National Guard

The Indiana Civil Rights Commission has administratively

dismissed the above-referenced case, for the following reasons:

_X. 4. Lack of Jurisdiction *(explanation below)

iniiersniiimaansal

* Complainant’s relationship with Respondent was as a

uniformed member of the U.S. armed forces and not as an

employee within the meaning of the Indiana Civil Rights Law.

Date: 6/25/91 /s/_ Karen M. Freeman-Wilson

Karen M. Freeman-Wilson, Director

Indiana Civil Rights Commission

i a ia i

App. I-51

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 19848

Washington, D.C. 20036

August 16, 1991

Gloria K. O’Shell

1909 N New Jersey Street

Indianapolis, Indiana 46202

Re: Appeal No. 01912718

Dear Ms. O’Shell:

This is in reference to correspondence which the Office of Federal

Operations recently received.

_X_ Your appeal is premature. You may, however, file a new

appeal when a final decision is issued in your case. See

enclosure.

s/ Dol L. Rozzi. Di

Dolores L. Rozzi, Director

| Office of Federal Operations

Enclosure

cc: Department of the Army

C. & C. R., SFMR-RBE

1941 Jefferson Davis Hwy.

Arlington, Virginia 22202-4508

App. I-52

DEPARTMENT OF THE ARMY

(SEAL) OFFICE OF THE ASSISTANT SECRETARY

(SEAL)

WASHINGTON, D.C. 20310-1813

23 July 1991

SFMR-RBE

Ms. Dolores L. Rozzi, Director

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 19848

Washington, DC 20036

Re: Complaint of Glona K. O’Shell

and M.P.W. Stone, Secretary,

Department of the Army

Docket Number: 01.91.2718

Dear Ms. Rozzi:

Referenced appeal is not properly before the Office of Federal

Operations as an appeal to a final agency decision. Rather,

appellant contends that her EEO complaints are not being timely

and properly processed. I have directed an inquiry into her

allegations. It is the intent of the Department of the Army that

appellant is accorded due process in a timely manner.

(s/ Stanley L. Kelly, Jr.

Staniey L. Kelly, Jr.

Deputy Director, Equal Employment Opportunity

Compliance and Complaints Review Agency

cf:

SAAA-EO