Petition for Writ of Certiorari — Foxx v. Department of the Navy

Supreme Court, U.S.

FILED

Q2 - 23 WN 20202

OFFICE OF THE CLERK

N o.

IN THE

SUPREME COURT OF THE UNITED STATES

GEORGE J. FOXX,

Petitioner,

v.

DEPARTMENT OF THE NAVY, ET AL,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

GEORGE J. FOXX

P.O. Box 4173

Tampa, FL 33677

(813) 963-3699

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QUESTIONS PRESENTED

Did intentional breached parties’ agreement regarding

personal and venue jurisdiction constitute a void

judgment pursuant to Rule 60(b)?

Was there a violation of Petitioner’s due process in the

proceedings below regarding the void venue transfer

and void judgments?

Was there error for the courts below to disregard

petitioner’s request for relief pursuant to Rule 59?

‘i

FOXX v. DEPARTMENT OF THE NAVY, ET AL

CERTIFICATE OF INTERESTED PERSONS

AND

CORPORATION DISCLOSURE STATEMENT

The following have an interest in the outcome of this case:

Department of the Navy, Respondent

George J. Foxx, Petitioner

Hon. Gerald Bruce Lee, District Judge

Richard Parker, Esq., Counsel for the Respondent

Arthur Erwin Peabody, Jr., Counsel for the Respondent

ill

TABLE OF CONTENTS

PAGE

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Certificate of Interested Persons and

Corporation Disclosure Statement ................... il

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Jurisdictional Statement .................scscsccccseeees l

Constitutional and Statutory

ER eee l

I ON so cas accssdvcupsencenecvcceses 2

Reasons for Granting the Writ ..................00000. 4

Argument: It was Reversible Error

To Dismiss Petitioner’s Appeal ..................006. 4

Points of Fact and of Law .................sceceecscere 8

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iv

TABLE OF AUTHORITIES

CASES

Blair v. City of Greenville,

649 F.2d 365, 368 (5™ Cir. 1993) .........cccceceeeeees

Carteret Savings and Loan Association v. Dr. Neil

Jackson, 812 F.2d 36, 39 (1" Cir. 1987) ..........2006

Foxx v. Dalton,

46 F.Supp. 24 1268 (1999) ........cccccccsccesceccesess

Foxx v. Danzig,

CA-99-558-A, USDC, Alexandria ..................0e0

Foxx v. Office of Personnel Management,

AT-0731-00-0647-I-! (MSPB, 2000) ...............465

Honneus v. Donovan,

OT BOF 8 Oe FID inn ccecccesscvescansnecornsens

Johnson Waste Materials v. Marshall,

GES Fe Faas FOTO ve ccncccccesercssssnesescsnsceseunes

McDonnell Douglas Corp. v. Green,

GE UB, FI CAT cena cesnsvecusssevsassssearsatiencsson

Pickford v Talbot, 225 U.S. 651, 658 , 32 S.Ct. 687,

SE LE, CCE nc ccccsvintcnccccdnsnsessccncsccessen

Precision Etchings & Findings v. LGP Gem, Lid.,

tf we bi ee Pe Se | ra

Reeves v. Sanderson Plumbing Products, Inc.,

S.Ct. (99-536) 197 F.3d 688 reversed (2000) ..........

Scotian v. Palane, BOE FBG V9 o.0scvescrscevcessecseeses

Sea-Land Serv. v. Ceramica Europa II, Inc.,

160 F.3d 849, 52 (1" Car. 19968) .........000s0esescenes

PAGE

Sipes v. United States,

744 F.2d 1418 (10 Cir. 1984) .0.....cccccccccceecece eee. 8

Texas Dept. of Community Affairs v. Burdine,

Gu US. OS, ee Oe... ee 6

United States v. Beggerly,

-- U.S. --, 118 S.Ct. 1862, 1867-1868,

Ore Cy GRID cau Acehvnicoutiasi wena ee 10

United States v. Holzman,

762 F.2d 720, 724 (9 Cir. 1985) .........cccceceeeccees y

United States v. Schlei (citing Brady),

373 U.S. 87, $3 S.CR LIGG-G7 ........cnccccocessccoceess 5

XYZ Options, Inc., (citing Pepper v. Litton),

ue OS. 2S (OR niin oe. 5

OTHER AUTHORITIES

Rules Of Civil Procedure 59, 60(b)

Civil Rights Act of 1964, As Amended,

42 U.S.C. § 2000e-5, 16 et seq.

The United States Constitution

l

OPINION BELOW

On October 1, 2001 and July 30, 2001, respectively, the

United States Court of Appeals for the Fourth Circuit, in

critical curt decisions denied Petitioner the requested relief

from void judgments. Copies of the decisions are enclosed in

the Appendix.

JURISDICTIONAL STATEMENT

The Petition for Writ of Certiorari is made pursuant to 28

U.S.C. § 1254(1). Jurisdiction for the appeal was pursuant to

28 U.S.C. § 1291, appeal from a final judgment of the district

court that constituted a void judgment based on fraud.

Jurisdiction for the original proceedings was pursuant to the

Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-5,

16 et seq. employment discrimination, separate and

subsequent wrongdoings and violations of due process

before, during, and after the wrongful employment dismissal,

intentional breach of parties’ agreement regarding venue and

personal jurisdiction.

“Ne CONSTITUTIONAL AND

STATUTORY PROVISIONS

The case involved race discrimination and reprisal in

employment, fraudulent behavior, inhibition of exonerating

evidence, prohibiting personnel practices not consistent with

the “Doctrine of Fairness,” obstruction of justice, and

violations of civil, due process, and procedural rights based

upon Title VII, The Civil Rights Act of 1964, as amended, 42

U.S.C. §§ 2000e-5, 16 and the provisions guaranteed by the

U.S. Constitution. Also, intentional breached parties’ agree-

ment where void judgment was in effect over the parties due

to lack of personal jurisdiction in transferred venue.

2

STATEMENT OF THE CASE

In a timely manner, Petitioner filed a motion for relief or

order pursuant to Fed. R. Civ. Proc. 59 and 60(b) in District

Court. This motion was based on “new evidence” and the

presentation of evidence that violated Rule 60(b) void

judgments. See detailed background of the proceedings in

Foxx v. Dalton, 46 F.Supp 2d 1268 (1999) and Foxx y.

Danzig, DC, E.D., VA, 99-558-A. Counts I-VI of Petitioner’s

complaint alleged that Respondent had been “deceitful’’

toward the Petitioner in the dismissal of Petitioner from the

position held in Panama. In Counts II-VI, the Court DENIED

DISMISSAL.

Petitioner was an employee of the Respondent for 18

years, and was fired for an alleged $27 travel voucher error.

Petitioner contended that there was no intent to defraud the

Respondent, as there was “no loss incurred.” In addition,

Petitioner paid Respondent the sum of $936.25 as good faith

for the direct and indirect costs associated with the $27 error,

and was still fired. There had been “five” Caucasians who

were similarly situated and were treated differently and

corroborated by witnesses in the U.S. Southern Command

agency’s personnel office, namely the personnel officers,

who had direct input into the personnel decisions that

resulted in “unfair treatment” of Petitioner versus the

similar, situated five Caucasians.

The firing of the Petitioner had equated to unfair and

excessive disciplinary action, and Petitioner should not have

been fired, see witness statement and declaration for clear

and concise clarification Appendix (A5). Petitioner had been

a model employee, holding the position of supervisory

computer programmer analyst, Information Systems Division

Director, and Command Automated Data Processing Security

Officer, NM-11, for the U.S. Naval Station Panama Canal.

Petitioner, a Vietnam veteran, had accumulated over 60

3

career awards and commendations, and had “no” disciplinary

action prior to the firing.

The Fourth Circuit erred in denying Petitioner due process

despite being a supervisory court when presented with

disputed evidence weighty enough warranting a reversal and

remand. The nucleus of this case has expanded nearing 12

years (May 1989 to present), before more than 111 decision-

makers (judges), and 25 venues, including this Honorable

Court for the “fifth”? time seeking overdue justice and relief.

Before the Fourth Circuit regarding the issues of void

judgments, lack of personal jurisdiction, breached parties’

agreements, the Appeals Court erred in disregarding

established precedence, case law, and the valid standards set

by this Honorable Court casting doubts on the integrity of

that Court’s decision in this case.

The issues in this case are crucial to “fundamental

fairness” in the workplace, while eliminating psychological

trauma, abating racial inequality, and removing prejudicial

favoritism while engaging in prohibited personnel practices,

and further desisting “judicial misconduct” when the

Appeals Court erred in favor of shielding corruption.

In sum, the Respondent intentionally breached the parties’

agreement over “repeated objections” enabling the

Respondent to use the district courts in a fraudulent and

unethical manner to “cheat” the Petitioner out of due process

and a retirement. This error created paths for void judgments

because there was a lack of personal and venue jurisdiction

over the parties based on the parties’ agreement and

violations under Rule 60(b) and 59 (evidence denial for a

new trial).

4

REASON FOR GRANTING

THE WRIT OF CERTIORARI

The nucleus of this case is nearing 12 years. The “fairest

and balanced” way to conclude this case is to remand this

case back to the district court with instructions to place this

case “back on the trial docket.” It is clear from the evidence

that Petitioner with more than 18 years of vested dedicated

service at the time of firing was subjected to “extreme racial

animus, unfair personnel practices, and harmful error before,

during, and after the firing process.” Petitioner was the

“victim” of motivated discrimination despite his protected

rights, being in a protected class, and procedural obligations

pursuant to 42 U.S.C. § 2000e-16, proscribed provisions of

the Civil Service Reform Act, EEO rules and regulations, and

the provisions guaranteed in the U.S. Constitution.

Further, the firing of Petitioner was so racially motivated

that Respondent’s behavior violated the “Principles of

Decency.” This Honorable Court in all diligence should

remand this case back for finality and monitor such case for

a fair outcome. And if there was impropriety in the

proceedings below, take the appropriate action where deemed

proper and in the interest of justice.

ARGUMENT: IT WAS REVERSIBLE ERROR

TO DISMISS PETITIONER’S APPEAL

The District Court erred when it granted Respondent’s

motion for change of venue that created confusion, conflicts,

and void judgment of the parties. Pursuant to Rule 60(b), no

further action was proper when the court of wanting lacked

personal and venue jurisdiction, See Scutieri v. Paige, 808

F.2d at 791, and Moore’s Federal Practice, 3D § 60.44[3]

Lack of Personal Jurisdiction. The courts’ errors were

“bias and not consistent” with integrity, nor with Rule

5

60(b) relief from void judgments, or the spirit of “fair

practice,” as the standards set by this Honorable US.

Supreme Court.

In pointing out the Respondent’s fraudulent behavior,

evidence of inhibition and obstruction of exonerating

evidence should not have been allowed to escape the Fourth

Circuit as a supervisory court, and should be remanded back

to the district court. Petitioner cited XYZ Options, Inc., citing

the Supreme Court in Pepper v. Litton, 308 U.S. 295 (1939)

which looked beneath the fraudulent scheme and fraud upon

the court, but denied Petitioner the same due process. The

evidence pointed to corruption, lies and deceit, and fraud

upon the court

Petitioner maintained that Respondent had engaged in

fraudulent behavior from the onset and cited United States v.

Schlei (11" Cir.) citing Brady, 373 U.S. 87, 83 S.Ct. at 1196-

97 stating “suppression by the Government of evidence

favorable to an accused upon request violates due process

when the evidence is material to guilt or punishment.”

The Respondent withheld evidence regarding the five

Caucasians’ misconduct in this case. There was “clear and

convincing evidence” corroborated via witnesses’ account

and declaration for the “provisions of deceit” and should be

allowed to manifest itself before a trier of the facts (a

demanded jury).

The separate and subsequent wrongdoings are governed

by Blair v. City of Greenville, 649 F.2d 365, 368 (5™ cir.

1981) citing J.W. Moore & T.S. Currier, Moore’s Federal

Practice 621, et seq. (1980). “A subsequent wrong

constitutes a new cause of action.” The unlawful holding of

Petitioner’s household goods for 18 months and causing

more than $14,000 worth of damages by Respondent, clearly

was wrong and had nothing to do with promoting the

efficiency of the service or the firing, but was retaliation and

reprisal for pursuing this litigation. In fact, such wrongful

6

actions proved “motivated racial intent and animus” toward

the Petitioner. The violations of Petitioner’s personal privacy

and household goods were separate and subsequent

wrongdoings.

The inhibition of exonerating evidence was corruption by

the Respondent that four Navy Caucasians (S. Danielson, M.

Birge, R.A. Kelly, and W. Wing) had committed more

egregious Offenses than the alleged error by the Petitioner,

and to treat the Caucasians very differently from Petitioner

goes to the core that Petitioner was indeed treated in a

disparate manner. The $27 error reason (six months later

after occurring) was a “motivated false and fake” reason for

the firing. See this unanimous Honorable Court’s precedence

in Reeves v. Sanderson Plumbing Products, Inc., §.Ct. (99-

536, June 12, 2000) 197 F.3d 668, reversed and 42 U.S.C. §

2000e-16.

Petitioner proved a prima facie case of discrimination, as

being in a protected case, Texas Dept. of Community Affairs

v. Burdine, 450 U.S. 248, 252-253 (1981), and meeting the

requirements as outlined in McDonnell Douglas v. Green,

411 U.S. 792 (1973). The supposedly legitimate reason

turned out to be a “false and a fake.” The Petitioner had

shifted the burden back the Respondent, and the Respondent

has since acknowledged inhibition and the destruction of

evidence. Further, if the reason was so legitimate, then every

person similarly situated after Petitioner should have been

fired. This was clearly not the case! It was disparity.

A Caucasian (H. Von Hollen) before the Petitioner

received a letter of reprimand, Petitioner was fired, and the

four Navy Caucasians were tre ted very differently, ranging

from no punishment to very little. Even though the five

Caucasians and Petitioner all worked for the U.S. Southern

Command and knew each other on a first name basis. The

Caucasians offenses ranged from travel fraud, theft of U.S.

Government property over $2,000, waste of over $50,000,

7

and providing false and perjurious statements to the courts,

OPM, and lawful authorities repeatedly to obstruct justice —

was certainly unfair and disparate. This had equated to

double standard in the workplace using favoritism and

animus as the catalyst. This was wrong! The Respondent had

inhibited and obstructed this evidence until clearly disclosed

in a separate matter before the Merit Systems Protection

Board (MSPB, 2000).

The provisions and nucleus of this case has continued to

be a spin-off to other cases. For example, in Foxx v. Office of

Personnel Management, AT-0731-00-0647-I-1, (2000), the

evidence of “unfairness” was clear and convincing as

demonstrated in Mrs. Mills’ Statement and Declaration. See

Appendix AS, an in-depth analysis of the discrimination and

disparity subjected toward this Petitioner. And clearly stated

that Petitioner should not have been fired and the firing was

unjust. This analysis clearly matched the provisions in Reeves

v. Sanderson Plumbing Products, Inc. [{1, 11] for a demanded

jury to decide based on the reasoning of this unanimous

Court.

To support Petitioner’s claim of motivated animus: (1)

Petitioner was greeted with racial animus when reporting to

duty, e.g., “Oh Shit!” “We had just bet if you had blue eyes

or a beard!” “Guess what our new supervisor is Black!” (2)

after only a few weeks of reporting to work, Respondent

personnel sent Petitioner racial and hatred material on

multiple occasions that were considered “offensive and racist

jokes” to wit: “Farmer’s Dayvorce” [Nigger-Nagger], “If

you are Unhappy” and “Why Worry” [threats], (3) and when

Petitioner complained three times, Respondent told Petitioner

to ignore such behavior, rather than take corrective actions.

Thereafter, (4) Petitioner having to bring his own chair to the

Christmas Day, 1989, dinner held at his supervisor’s quarters

because the Caucasian supervisor “did not” want Petitioner to

8

sit on his furniture, where ample seating was available. (5)

Other Caucasian males who were invited did not have to

bring their own chair. The Caucasian supervisor’s guests

laughed at Petitioner standing at the door with his chair in

hand.

In addition, (6) Petitioner was threatened to wit: “Leave

by sundown or be arrested” and (7) Petitioner’s life was

placed in danger and Harm’s Way recklessly during war

conditions in Panama and (8) the denying Petitioner of his

earned award for “Operation Just Cause” all were clearly

enough evidence for a reasonable jury to decide whether the

reason was legitimate or discriminatory. This again shifted

the burden to the Respondent where the burden is still cast.

The Fourth Circuit had this evidence before it and still failed

to grant the Petitioner a de novo review. This was reversible

error!

This case should be remanded with instructions to seek

finality on the issues prior to the engagement of void

judgments. The issues of discrimination involving the five

Caucasians, $14,000 worth of personal damages to

Petitioner’s household goods, intentional breaching of the

parties’ agreement, the Respondent’s aura at attempting to

influence the Court to fraud upon the Court, are ripe for a

reversal and remand. Also to be resolved are the violations of

civil, due process, and procedural rights while depriving

Petitioner of his vested property, pursuant to Sipes v. United

States, 744 F.2d 1418. The motivated animus and unfair

personnel practices are clearly warranted and should be

investigated. The “time” of a Writ of Certiorari is now “Tipe.”

i f F Ww

This case has been clearly affected by the following 10

compelling factors pursuant to Rule 60(b) and 59,

respectively:

9

1.) Judgment is void if a court plainly misinterprets a

grant of jurisdiction such that there is a blatant

usurpation of power. See United States v. Holzman,

762 F.2d 720, 724 (9 Cir. 1985).

2.) The court below lacked personal and venue

jurisdiction based on the parties’ agreement. Period.

Petitioner never waived the lack of jurisdiction nor

voluntarily submitted to the court’s jurisdiction. See

Precision Etchings & Findings v. LGP Gem, Ltd., 953

F.2d 21, 25-26 (1* Cir. 1992).

3.) It has been repeatedly stated “a judgment is void for

purposes of Rule 60(b)(4) ... if the judgment was

entered in violation of due process.

4.) If a judgment is void, the only way that the court may

exercise its discretion is by granting relief. If a court

determines that a judgment is truly void ... the court

really has no discretion at all; it must recognize

that the judgment is a nullity and grant relief. See

Honneus v. Donovan, 691 F.2d 1-2 (1* Cir. 1982).

5.) No Real Time Limit on Relief. Despite the express

language of the Rule, there is no real time limit of

any kind on a motion for relief from a void

judgment. A motion under Rule 60(b)(4) challenging

a judgment as void ... may be made at anytime. See

Sea-Land Serv., Inc. vy. Ceramica Europa II, Inc., 160

F.3d 849, 852 (1* Cir. 1998). If judgment is void for

lack of personal jurisdiction, Rule 60(b)(4) may be

made at anytime, and court does not have discretion to

deny such motion.”

6.) Appendix 5 clearly meets and exceeds the “standards”

of newly discovered evidence. It was after the initial

ruling and should have been considered as an

independent action, but was not. See Johnson Waste

10

Materials v. Marshall, 611 F.2d 593, 597-598.

7.) This evidence was valid and still should be based on

merit. At all times in this litigation, Petitioner’s hands

have been clean whereas, the Respondent’s hands

have been “unclean.” See Pickford v. Talbot, 225

U.S. 651, 658, 32 S.Ct. 687, 56 L.Ed. 1240 (1911) and

Carteret Savings and Loan Association v. Dr. Neil

Jackson, 812 F.2d 36, 39 (1* Cir. 1987). Respondent

had admitted and acknowledged the validity of

Appendix AS.

8.) This litigation has been stained and engraved deeply

sO as to present a “grave miscarriage of justice” and

so justifies opening the prior judgment. See United

States v. Beggerly — U.S. --, 118 S. Ct. 1862, 1867-

1868, 141 L.Ed. 2d 32 (1998). In this case the grave

miscarriage standard was met.

9.) The proceedings in Foxx, 46 F.Supp. 2d 1268 when

the Court stated Counts II-VI “Dismissal Denied,”

that was in essence res judicata, meaning that decision

should not have been disturbed, and a 2-3 day trial on

the merits should have been allowed to settle this long

overdue dispute. The court below erred and disturbed

the decision “causing a grave misunderstanding

and miscarriage of justice,” despite a lack of

personal jurisdiction from the wanting court.

10.) Most importantly, the U.S. Constitution guaranteed

Petitioner safeguards and due process against judicial

abuse, but this Petitioner remained a victim in spite of

enduring the “gauntlet of injustice” on the venues. It is

obvious that the July 2000 evidence in Appendix AS5 is

independent of the September 28, 1999 ruling. It is

further clear that the Appeals Court, a supervisory

court erred in not correcting this fault. This Court is

now left with the task of fixing an obvious error that

1]

will otherwise remain a travesty and miscarriage of justice.

Finally, this Petitioner is appearing before this Honorable

U.S. Supreme Court for the “fifth” time and it “must” make

itself available to this Petitioner. This Court must according

to the laws and the Constitution look at the merits and issues

of Rule 60(b) void judgments and include 42 U.S.C. §§

2000e-5, 16 that were born from the intentional breached

parties’ agreement by the Respondent that made personal and

venue jurisdiction lacking to a court of wanting.

To endure more than 111 judges for this Petitioner to be

granted a Writ to examine the lies, deceit, corruption,

discrimination, and obstruction of the legal process that

denied Petitioner full and fair access to justice is “cruel and

equates to judicial default.”’ Petitioner was the “victim” of

employment discrimination and inhibition corroborated by

the evidence and should not have been fired as stated in

Appendix AS.

Petitioner has fought for nearly 12 years “not for fun,” but

to see justice prevail in this case. The merits of this case can

apply to “alP’ Federal employees and the general public at

large who may find them in a similar situation. Petitioner was

a veteran who wanted to honor his country with dignity and

valor — and did. Petitioner’s unfair treatment in this “House

of Justice” in search for justice to find it, and have justice

hide and shield herself before corruption and misdeeds is

wrong! Petitioner is asking this Court to examine the

evidence, look at the record and merits of nearly 12 years of

fighting, and embrace the principle of fairness according to

the doctrine — and act accordingly.

Petitioner has never been before the demanded jury as

first sought, but instead been abused by the process. The

record clearly demonstrated unfairness and abuse in a “clear

and convincing” standard. This case for years has been

predicated on racism, prejudice, inhibition, obstruction,

12

“fraud upon or influence upon the court,” and Respondent’s

egregious and heinous behavior — rather than full and fair

disclosure of the “five” Caucasians and proper conduct for a

fair resolve in making right of those wrongs.

To permit void judgments and the effects thereof

(discrimination and reprisal) where personal and venue

jurisdiction was not proper based on the parties’ agreement to

Stand is not only a violation of the law, but that of human

decency as well. And to fight for nearly 12 years should not

become the norm in our society hence forth in search of

justice — where there would be none. A granted Writ is right

and the proper thing to do for a 2-3 day demanded jury trial

to resolve all issues. Justice demands Petitioner to be heard.

According to the “Doctrine of Fairness” Petitioner was

similarly situated; yet treated differently. All employees in

the Federal sector that are similarly situated should be treated

fairly because they are entitled to fair and equitable treatment

under the law. It was just that the Respondent excluded this

Petitioner.

CONCLUSION

Wherefore, this Honorable Court should right a very

serious wrong and grant the Writ of Certiorari. Petitioner

respectfully requests the reversal and remand with

instructions to place this case back on the trial docket, or

other remedy that would promote fairness and justice in this

case that is long overdue, and “reverse the manifested

injustice.”

Respectfully Submitted,

s/ L yl

GEORGB/J. FOXX

IN THE

SUPREME COURT OF THE UNITED STATES

GEORGE J. FOXX,

Petitioner,

v.

DEPARTMENT OF THE NAVY, ET AL,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

APPENDIX

GEORGE J. FOXX

P.O. Box 4173

Tampa, FL 33677

(813) 963-3699

Ai

APPENDIX

PAGE

Petition for Rehearing and

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UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

October 1, 2001

No. 01-1268

CA-99-558-A

GEORGE J. FOXX

Plaintiff — Appellant

DEPARTMENT OF THE NAVY

Defendant — Appellee

On Petition for Rehearing and Rehearing En Banc

The appellant’s petition for rehearing and rehearing en

banc was submitted to this Court. As no member of the Court

or the panel requested a poll on the petition for rehearing en

banc, and

As the panel considered the petition for rehearing and is of

the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

rehearing en banc is denied.

For the Court,

/s/ Patricia S. Connor |

CLERK |

Ala

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

.

GeEorGE J. Foxx,

Plaintiff-Appellant,

63 ? No. 01-1268

DEPARTMENT OF THE Navy, John H.

Dalton, Secretary,

Defendant-Appellee.

al

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Gerald Bruce Lee, District Judge.

(CA-99-558-A)

Submitted: June 12, 2001

Decided: July 30, 2001

Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

George J. Foxx, Appellant Pro Se. Richard Parker, Arthur Erwin Pea-

body, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Alex-

andria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

2 Foxx v. DEPARTMENT OF THE Navy

OPINION

PER CURIAM:

George J. Foxx appeals from the district court’s order denying his

motion filed under Fed. R. Civ. P. 60(b), in which he sought relief

from the court’s judgment granting the Department of the Navy’s

motion for summary judgment and dismissing his employment dis-

crimination action. We have reviewed the record and the district

court’s order and find no abuse of discretion. Heyman v. M.L. Mktg.

Co., 116 F.3d 91, 94 (4th Cir. 1997) (stating standard of review).

Foxx based his motion for relief from judgment on Rule 60(b)(1),

(2), and (3). As such, the motion had to be filed not more than one

year after the entry of judgment. Fed. R. Civ. P. 60(b). The district

court entered its order dismissing the action on October 1, 1999."

Foxx did not file his Rule 60(b) motion until January 18, 2001, more

than one year later. We therefore find that the motion was untimely

filed.? National Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 264

(4th Cir. 1993) (outlining threshold factors to filing Rule 60(b)

motion).

Accordingly, we affirm the district court’s denial of Foxx’s Rule

60(b) motion on that ground. Shafer v. Preston Mem’l Hosp. Corp.,

107 F.3d 274, 275 n.1 (4th Cir. 1997) ("We have consistently recog-

nized that we may affirm a district court’s decision on different

grounds than those employed by the district court.") (citations omit-

ted). We dispense with oral argument because the facts and legal con-

tentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

‘The order was filed on September 28, 1999.

Although Foxx also sought relief under Rule 60(b)(6), he may not do

so. The provisions of Rule 60(b)(1), (2), or (3) and (6) “are mutually

exclusive, and thus a party who failed to take timely action [based upon

newly discovered evidence, mistake, or fraud] may not seek relief more

than a year after the judgment by resorting to subsection (6)." Pioneer

Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393

(1993).

ee

Pw So

A2

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISRICT OF VIRGINIA

ALEXANDRIA DIVISION

GEORGE J. FOXX,

Plaintiff,

VS. Civil Action No. 99-558-A

DEPARTMENT OF THE NAVY,

John H. Dalton, Secretary,

Defendant.

ORDER

THIS MATTER is before the Court on Plaintiff's

Objections to the Court’s Order. Plaintiff objects to the

Court’s April 16, 2001 Order denying Plaintiff's most recent

Motion for Relief from Judgment or Order. As stated I the

Court’s April 16, 2001 Order, all of Plaintiff's claims have

been disposed of by this Court, the United States Court of

Appeals for the Fourth Circuit, and the United States

Supreme Court. There are no issues remaining before this

Court. Therefore, it is hereby

ORDERED that this case is CLOSED. Accordingly, the

Court shall not hear additional motions and /or objections in

this case.

The Clerk is directed to forward a copy of this Order to

counsel or record and pro se Plaintiff.

Entered this _14th day of May, 2001

/s/ Gerald Bruce Lee

United States District Judge

Alexander, Virginia

05/14/01

A3

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA /

ALEXANDRIA DIVISION

GEORGE J. FOXX,

Plaintiff,

v. Civil Action No. 99-558-A

DEPARTMENT OF THE NAVY,

John H. Dalton, Secretary,

Defendant.

ORDER

THIS MATTER is before the Court on Plaintiff’s Motion

for Relief from Judgment or Order.

Plaintiff argues that the Court improperly granted a

motion for change of venue in this case, and Plaintiff also

argues that he should be permitted to produce “additional

new evidence” at a trial on the merits in this case. It is

unclear fro Plaintiff’s motion from which Judgment or Order

of this Court Plaintiff seeks relief. Plaintiff previously filed

motions for relief from the Court’s September 28, 1999

Order granting Defendant’s Motion to Dismiss, or, in the

Alternative, for Summary Judgment, and from the Court’s

November 5, 1999 Order denying Plaintiff’s Motion for

Reconsideration of the September 28, 1999 Order. On

February 6, 2001, this Court denied Plaintiff's motions for

relief from the September 28, 1999 and November 5, 1999

Orders.

The Court holds that Plaintiff’s arguments are moot.

Plaintiff essentially reasserts the arguments made and the

facts alleged in his previous motions and his Complaint. This

Court cannot take any further action on Plaintiff’s claims; the

judgments are final. The Court of Appeals for the Fourth

Circuit has affirmed this Court’s rulings on Plaintiff’s

Compliant and motions. The United States Supreme Court

has denied Plaintiff’s petition for a writ of certiorari.

Accordingly, it is hereby

ORDERED that Plaintiff’s Motion for Relief from

Judgment or Order is DENIED.

The Clerk is directed to forward a copy of this Order to

counsel of record and pro se Plaintiff.

Entered this _13th_ day of April, 2001

/s/ Gerald Bruce Lee

United States District Judge

Alexandria, Virginia

04/13/01

A4

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

GEORGE J. FOXX,

Plaintiff,

v. Civil Action No. 99-558-A

RICHARD H. DANZIG, Secretary,

United States Navy,

Defendant.

ORDER

THIS MATTER is before the Court on Plaintiff’s Motion

for Relief from Judgment or Order.

Plaintiff pro se seeks relief from the Court’s September

27, 1999 Order granting Defendant’s Motion to Dismiss, or,

in the Alternative, for Summary Judgment, and from this

Court’s November 5, 1999 Order denying Plaintiff’s Motion

for Reconsideration of the September 28, 1999 Order.

Plaintiff in the instant motion essentially reasserts the

arguments made and the facts alleged in his Complaint, his

objection to defendant’s motion to dismiss, and his motion

for reconsideration. The Court finds that Plaintiff presents (1)

no evidence of mistake or excusable neglect in the manner in

which Plaintiff litigated this case, (2) no newly discovered

evidence, and (3) no evidence of fraud or misrepresentation

by Defendant in the manner in which Defendant litigated this

case. See Fed. R. Civ. P. 60(b). Accordingly, it

is hereby

ORDERED that Plaintiff’s Motion for Relief for

Judgment or Order is DENIED.

The Clerk is directed to forward a copy of this Order to

counsel or record and pro se Plaintiff.

Entered this _6th_ day of February, 2001 ~

/s/ Gerald Bruce Lee

United States District Judge

Alexandria, Virginia

02/06/01

AS

MERIT SYSTEMS PROTECTION BOARD

401 West Peachtree Street NW, 10" Floor

Atlanta, GA 30308-3519

GEORGE J. FOXX

VS. No. AT-0731-00-0647-I-1

U.S. OFFICE OF PERSONNEL

MANAGEMENT & E.P.A.

/

WITNESS STATEMENT AND

DECLARATION

Name _ Elsie L. Mills

Tel. (937) 233-4501/233-3739

2. Address 1540 Hochwalt Ave., Dayton, Ohio

45408-1842

3. What was your official occupation while you

were in Panama? I was selected for the position

of Chief, Affirmative Employment &

Classification. I was temporarily selected for the

Civilian Personnel Officer for approximately

three months.

4. Did you know George J. Foxx? Yes

5. Did you know Harvey Von Hollen? Yes — His

supervisor during my temporary promotion

and his co-worker the rest of the time.

6. Did you know R.A. Kelly? Yes — Attended

Navy staff meetings as the AF representative

and he was there wit other Navy staff

employees.

7. Did you know William “Bill” Wing? Yes —

Financial/Budget Officer for Navy.

8. Did you know Charles Berg? Yes — Chief,

Manpower and my counterpart regarding

U.S. Navy civilian matters.

9. Did you know C. Mike Birge? Slightly — I

mostly dealt with a supervisor under him.

10. Did you know S. Comer? Yes — Commander,

U.S. Naval Station.

11. At the time of your official duty in Panama,

did the above named individuals work at the

Same agency or interagency under the U.S.

Southern Command? Yes.

12. In knowing the above individuals while you

worked in Panama, did you have official

contact (direct/indirect) with them in your

official capacity? Yes

- 13. In reference to Mr. Foxx, did you in your

official capacity ever observe any unlawful

treatment or unfair personnel management

practices that was prohibited by law

(including discrimination, disparate treatment,

threat or reprisal, or unfair/inequitable

treatment)? Yes — Initially Mr. Foxx was

given a 30-day Notice of Proposed Removal.

Before the 30 days was over he was told he -

had to be off Rodman Naval Station before

sundown or else. He wasn’t given travel

orders to ship his HHG’s or truck, and it

took 18 months for him to receive his

HHG’s. Furthermore, he wasn’t given any

pay due him or funds for travel expense. The

JTR, Part II says "in “order for the

Government to pay return transportation of

civilians to CONUS he/she must remain in

the overseas area for one year. Mr. Foxx was

less than two weeks of meeting that

requirement. Had he been given the full 30-

day notice of Proposed removal, he would

have met the one-year assignment period

required for Government paid return travel

expense. Other Navy employees were

charged with various offenses and none were

fired. Harvey Von Hollen and AF employee

and my co-worker was charged with travel

fraud and was given a reprimand.

CONCLUSION: Two employees charged

with travel fraud, one employee (Mr.

Foxx) was fired and the other employee (Mr.

Von Hollen) was given an Official

Reprimand. Mr. Foxx was even allowed to

serve his 30-day notice period. He was

threatened (told to leave by sundown or else)

and was allowed to receive money owed

him/and lump sum Annual Leave payment.

Where is the equal/fair treatment of all

employees?

14. In reference to Mr. Von Hollen, do you have

any knowledge directly or indirectly

regarding any alleged misconduct? Yes.

15. Did you personally intervene on Mr. Von

Hollen’s behalf? Yes — I wrote a letter on his

behalf and met with the AF IG Team

regarding his travel fraud case. I

recommended that he be allowed to remain

in his position and he was then given an

Official Reprimand.

16. Did you personally intervene on Mr. Foxx’s

behalf? Yes — I met with Charles Berg, Chief

Manpower and Navy’s spokesperson &

requested that Mr. Foxx be allowed to stay

for the 30-day notice period, so he would

meet the one-year required for return travel

at Government expense. Instead it was leave

or else.

17. In reference to Mr. Foxx and Mr. Von

Hollen, in your official capacity, were they

similarly situated? Yes — They were both NM-

11s, one worked for the Air Force and the

other worked for the Navy. However, they

were both serviced by the Civilian Personnel

Office, Howard AFB, Panama under the

jurisdiction of the U.S. Southern Command.

18. Were they treated differently regarding

personnel management practices? Yes.

19.Were you ever inquired upon from the offices

of any O.P.M. or E.P.A. regarding any

prohibited employment practices or any

investigation regarding Mr. Foxx? No.

20. Did any member of the offices of O.P.M. or

E.P.A. contact you at all between July 28,

1999 through June 01, 2000 regarding an

investigation about Mr. Foxx? No.

21. Would this be a harmful error to say you

were contacted by O.P.M. or E.P.A.

investigators, when in fact you were not? Yes.

22. If so contacted, what would you have told

investigators about official knowledge

regarding the treatment of Mr. Foxx? Mr.

Foxx was not allowed to remain in Panama

during the 30-day notice period. He was told

to leave by sundown or else. Was not given

any money due him and basically stripped of

all entitlements. How can an agency have

two employees charged with the same

offense and one fired and the other given a

reprimand. Mr. Von Hollen remained

employed and was promoted and ten years

later Mr. Foxx is still trying to be reinstated.

How just was that when all employees

(Federal) are supposed to be governed by the

same regulations and rules and treated so

differently. Navy kept Mr. Foxx’s HHGs for

18 months, broken open sealed shipping

containers and damaged Mr. Foxx’s

personal effects, costing the Government

thousands of dollars. His Official Personnel

Folder was tampered with/and or destroyed.

Yet no one has questioned Navy’s

wrongdoing and involvement.

23. If your input and knowledge were omitted by

O.P.M. and E.P.A. investigators, would such

omission render a suitability determination

faulty from the lack of information in your

opinion? Yes.

24. Was there anything unfair, immoral,

disparate, reprisal regarding the treatment of

Mr. Foxx after leaving the agency regarding

travel or the handling of his household goods

or personal property that was not warranted as

part of his firing? Yes - Jt -as unfair to run |

him out of Panama without |

JSunds/transportation to the airport. During

this time civilian/military personnel had

travel restrictions and I personally drove Mr.

Foxx to the airport and wasn’t sure that I

could take and safely return to the base due

to the travel limitations and my not being

familiar with the downtown area.

——

25. In you official capacity, were there ever any |

prohibited personnel practices, unfair and |

inequitable treatment, or discriminatory

practices subjected to Mr. Foxx that were not |

subjected to other similar situated

individuals? Yes — I could better understand

(not approve) of what happened to Mr. Foxx,

if he was new to the Federal service and

serving a probationary period. However, he

was a career employee (with veteran status)

with 18 years of service and numerous prior

awards and management gave him the most

serious punishment possible. What happened

to an Oral Admonishment, Official

Reprimand, and 3-5 day suspension? Those

kinds of penalties were given to other

employees. How unfair does it have to be,

before someone can take notice and do

something about the inequities done to Mr.

Foxx during his employment in Panama?

26. In your official capacity, should’ve Mr. Foxx

been terminated in comparison to the other

similarly situated individuals? No.

27. Did Mr. C. Mike Birge (MWR) encounter

misconduct while with the agency or

interagency under the direction of the U.S.

Southern Command? Yes.

28. Was Mr. Birge terminated? No.

29. Could Mr. Birge’s treatment be considered

different from Mr. Foxx? Yes.

30. Did R.A. Kelly encounter misconduct with

the agency or interagency under the direction

of the U.S. Southern Command? Yes — He

sold Government property for his own gain.

Nothing happened to him while he was in

Panama.

31. Was he treated differently from Mr. Foxx?

Yes — see above.

32. Are you aware of any unfair practices that

Mr. Charles Berg directed toward Mr. Foxx?

Yes — Mr. Berg was management

representative and made the decision to have

Mr. Foxx removed from Federal service. Mr.

Berg would not allow Mr. Foxx to complete

the 30-day notice period prior to removal.

Basically, he saw that Mr. Foxx was stripped

of all entitlements.

33. Are you aware of any unfair practices that

Mr. William Wing directed toward Mr. Foxx?

Yes — He refused to give Mr. Foxx his final

pay and payment for annual leave and

delayed numerous months before providing

a fund citation so that Mr. Foxx’s HHGs

could be shipped to the states. I personally

believe Mr. Wing’s actions were directed by

Charles Berg.

34. In accordance with the rules, regulations, or

law regarding official notice, did Mr. Foxx

receive due process or adequate personnel

management protection under the 30-day

notice? No.

35. Was Mr. Foxx promised a

promotion/upgrade for reporting to Panama as

part of his recruitment? According to Mr.

Foxx, he was (I believe him) and his

selection was during the time that there was

turmoil and restrictions in Panama. My boss,

the Civilian Personnel Officer left two days

after I got there. Since Mr. Foxx was being

considered for a job in Germany at the time,

management probably promised him a

promotion in order for him to commit.

36. Did Mr. Foxx get the promised

promotion/upgrade while in Panama? No.

37. Did you ever check Mr. Foxx’s personnel

file? No — However, the Staffing Specialist

Sor Navy did. As the Chief of the Branch I

signed all personnel action and they were

attached to the file. My review was to check

remarks, accuracy of salary and the

regulatory authority on the SF-5O0,

Notification of Personnel Action prior to

signing the SF-50.

38. Did you ever see a transportation agreement

with Mr. Foxx’s name on it? No — That was

the responsibility of the Staffing Specialist.

Normally the transportation agreement is

signed by the employee at their stateside base —

before they are given the travel orders. The

signed agreement authorizes then use of

Government funds. If by chance there

wasn’t an agreement in the file, the Staffing

Specialist should have had Mr. Foxx sign

another agreement.

39. Did you personally ever destroy any

information in Mr. Foxx’s personnel file? No.

40. When you did examine Mr. Foxx’s personnel

file, what did you see in it? N/A (see 37

above).

41. Do you have knowledge of any other

prohibited personnel practice that may have

an affect upon the treatment of Mr. Foxx?

There were numerous prohibited personnel

practices committed by my former boss. That

was the reason the AF IG Team was in

Panama for 2 or 3 months. I don’t believe

those practices had any affect on the

treatment of Mr. Foxx. Navy had its own

agenda, and it seems unlikely that one man

can stand alone and go up against Navy

when the system doesn’t seem to play fair.

42. In your official capacity and opinion, should

Mr. Foxx be reinstated into Federal service?

Yes — Knowing all the facts of the charge

and the firing of Mr. Foxx, if I was the

Staffing Specialist considering Mr. Foxx for -

reinstatement I would work very hard at

trying to get him reinstated. He has been

punished to the extreme when consider

another individual was charged with the

Same offense and received a reprimand. Had

Mr. Foxx not been fired he would be within

a few years of meeting the 30-year period for

retirement.

43. When decisions were being made in

reference to Mr. Foxx, Mr. Von Hollen and

others, who were the individuals involved? F.

Michael Bailey, Van Balzer, Charles Berg,

Captain Comer, Commander Kelly, William

Wing, the AF IG Team (I can’t remember

the names) however, they were in Panama

approximately three months. I was there and

met with the IG Team numerous times

regarding Von Hollen and I met and talked

to Bill Wing and Charles Berg, regarding

George Foxx.

44. Of the above named decision-makers, have

any of the decision-makers been contacted by

O.P.M. or E.P.A. investigators o your

knowledge? I wouldn’t know. Since they

didn’t contact me, who’s to say who they

contacted.

45. Based on prohibited personnel practice,

should Mr. Foxx have been fired in relations |

to other similar situated individuals who were

not? No. }

46. Would you consider the actions by the Navy,

agency, interagency or U.S. Southern

Command as “promoting the efficiency of the

service” via the termination action toward Mr.

Foxx? No.

47. In a comparative analysis, would you in your

opinion consider an investigation or

suitability determination by O.P.M. or E.P.A.

to be valid, sound, or in good personnel

management practice based on your official

knowledge of the Navy, agency, interagency,

or U.S. Southern Command treatment toward

Mr. Foxx? Mr. Foxx was charged with travel

fraud. Consideration was not given of his

prior outstanding performance or his more

than 15 years of Federal service. Regardless

of how good Mr. Foxx’s performance was

prior to and during his employment in

Panama he was fired due to a $27.00 error

on a travel voucher. Mr. Von Hollen was

charged with travel fraud too. To my

knowledge he never attended training, he

visited his family. If you took into

consideration the cost of airfare, per diem,

etc., it was much greater than $27.00.

However, Mr. Von Hollen was not fired, he

was given a reprimand. How can the. _

treatment of Mr. Foxx be valid or good

personnel management practice when

another employee commits the same

violation and more or less receives a slap on

the wrist? For one it was okay and the other

one’s Federal career was ruined.

48. In a comparative analysis, would you

consider the adverse actions taken by the

agency, Navy, O.P.M. or E.P.A. “to be

promoting the efficiency of the service” when

omitting prohibited personnel practice

including discrimination or disparity? The

disparity/discrimination is stated in 47 above.

The efficiency of the service was for one

employee and not for the other. Mr. Foxx

lost his career and Mr. Von Hollen was

reward for his wrongdoing. Von Hollen

remained in Panama and to my

understanding was promoted. O.P.M. did not

contact me and as it stands now they won’t

even consider Mr. Foxx’s suitability for

reinstatement until December 11, 2001. How

long must he be punished for a $27.00 error.

49. Your period of duty in the U.S. Southern

Command was:

June 1 989 to October 1991

From To

DECLARATION

I HEREBY deciare under the penalty of perjury

and under the provisions of 28 U.S.C. Section

1746 that the foregoing is true and correct to the

best of my knowledge.

/s/

ELSIE L. MILLS

Executed on this 3 day of July, 2000.

Notary Public

DONNA K. SIMON, Notary Public

In and for the State of Ohio .

My Commission Expires Dec. 1, 2003

Stamp or Seal

/s/

- Dayton, Ohio Donna K. Simon