Petition for Writ of Certiorari — Horton v. Ahler (No. 05-1094)

California APA Gov. Code section 11524, the federal

equivalent in dealing with exhaustion of

administrative remedies.

LEGISLATIVE MATERIAL

APA Gov. Code section 11524 was revised in 1997

to incorporate the statutory judicial review decided

by Darby v. Cisneros (1993) 509 U.S. 137; 1135S. Ct.

2539; 125 L. Ed.2d. 113.

OTHER AUTHORITIES

Duffy Administrative common law in Judicial

Review, 77 Tex. L. Rev. 121, 152-62 (1998) (viewing

Darby as a triumph of statutory judicial review (U.S.

§704) over common law judicial review.

Respondent/ Petitioner Willie J. Horton (hereinafter

"Horton") and Petitioner/Defendant San Diego

Unified School District (hereinafter "District") and

Defendant Commission on Professional Competence

(hereinafter “Commission")are the parties to this

action. In the instant case District had to exhaust

the administrative remedies mandated by the APA.

STATEMENT OF THE CASE j

This wrongful termination and damages case

began when the District refused to allow Horton to

return to work after the Administrative Law Judge

{hereinafter "ALJ") dismissed all charges against him

in May 2000, and the District's motion for

continuance was denied by the ALJ. The District did

not appeal the ruling (See Appendix B).

1. Background

The district failed to exhaust its administrative

remedies by not filing a motion for reconsideration or

appeal in according to APA Gov. Code section 11524.

The administrative intra-agency review process was

mandatory by its established rule. The District as

the original petitioner was mandated to exhaust

administrative remedies as a prerequisite for judicial

review. The District failed to take any action.

Four months later, without any explanation, the

District refiled the same charges with the same case

number as the adjudicated ruling and with the same

administrative agency. Horton objected to the refiling

of the same dismissed charges, but the second ALJ

concluded that Horton’s objection was irrelevant to

the case. The District and the Commission violated

25: U.S.C. §1738, the full faith and credit pees

which provides, in part,

"Full faith and credit shall be given in every

state to the public acts, records, and judicial

proceedings of every other state. And the

Congress may by general laws proscribe the

manner in which such action, records and

proceedings may be proved, and the full effect

thereof." (U.S.C., Art. IV, §1)

Horton filed a reconsideration petition contesting

the second unlawful proceeding in violation of APA

Gov. Code section111517. The -school board

participated in an illegal vote because Horton was

denied the opportunity to present oral or written

evidence under APA Gov. Code §11517(E)(1i). APA

Gov. Code section 11524 barred the District from

raising the same issues on judicial review. The

second ALJ did not have the jurisdiction to grant

continuance. Only the first ALJ had that authority:

"When a hearing officer... has been assigned to such

a hearing, no continuance may be granted except by

him for good cause shown." (Gov. Code section

11524). Horton alleges constitutional and aedistouy

claims against state officials who acted under color

of state law, and violated federally protected rights.

The due process clause and the equal protection

clause of the Fourteenth Amendment provides: "No

person shall ... be deprived of life, liberty, or property

without due process of law." The administrative

intra-agency review process was mandatory by it's

established rule. District had to exhaust all

remedies as a prerequisite for judicial review.

The U.S. District Court of Southern California

entered judgment for the San Diego Unified School

District and the Commission on Professional

Competence without addressing the jurisdictional

question of APA Gov. Code section 11524. Appendix

C.

The Ninth Circuit sustained the U.S. District

court judgment without rendering an opinion but

ruled the case was not for publication (See Appendix

A). The decision rests on an erroneous view of the

exhaustion of the administrative remedies statute,

APA Gov. Code section 11524, conflicts with the

decisions of this Court and other circuit courts. The

conflict raises an important question of law

warranting this Court's plenary review.

On April 2, 2005, Horton filed a timely petition for

rehearing en banc, which under Ninth Circuit Rule

35A (4) functioned both as a petition for rehearing

and a suggestion for rehearing en banc, and which

was treated by the Ninth Circuit as such. On August

4, 2005, the Ninth Circuit Court denied the

rehearing petition without comment, except to say

that no judge called for the vote (see Appendix A).

| REASONS FOR GRANTING WRIT

The District attempted to hide the first

si Baatradey culinc of May 25, 2000, and they

failed to appeal the first ealine The Ninth

Circuit Court of Appeals decision is_ flatly

inconsistent with numerous decisions of other

Courts of Appeal and the State Courts holding that

when Congress specifies the remedies, a party must

exhaust as a jurisdictional prerequisite to judicial

review of a class of agency actions. Courts do not

have discretion to excuse a party's failure to exhaust

one of those statutorily-prescribed administrative

remedies to judgements of prior proceedings. The

California APA reflects the same Congressional

intent regarding the exhaustion of administrative

remedies as the Federal APA which governs federal

administrative agencies.

If permitted to stand, the Ninth Circuit's ruling

would provide wrongdoers with a blueprint for using

discretion where Congress specified that the courts

could not use discretion. The Court of Appeal's

decision instructs wrongdoers that they need only to

hide a ruling if they failed to appeal. The Ninth

Circuit's decision fundamentally refused to interpret

the APA Gov. Code section 11524 requirements of

exhaustion by statute. As this Court has explained,

the statute "directs all courts to treat a state court

judgment with the same respect."

Horton is relying on the following cases because

they present facts and conclusions of law that

10

support the instant case. In Clausen v. Espy 42 F.3d

1522 (9" Cir. 1994), the Court held that the

petitioner under the APA exhaustion doctrine had to

appeal to a “superior agency authority" as a

prerequisite to judicial review when expressly

required by statute or when an agency rule requires

appeal before review and the administration action

is made inoperative pending that review. In the

instant case, the Ninth Circuit sustained the District

Court ruling even though District was required to

appeal the first administrative proceedings.

In Coteau Properties v. Department of Interior 53

F.3d 1466 (8 Cir. 1995), the Court held that

plaintiff was required to exhaust administrative

remedies before petitioning for judicial review of the

FAD. In the instant case District was mandated by

1]

the California APA to exhaust all administrative

remedies before it refiled the same dismissal

charges. In Darby the Court held that only

administrative appeals mandated by statute or by

agency rule need be pursued before seeking judicial

review of an agency decision. The Court did not have

authority to require exhaust.\n of remedies before

reviewing HUD administrative action under the APA,

where exhaustion was not mandated by statute or

agency rule. In the instant case, the California APA

Gov. Code section 11524 was mandated by statute

and agency rule to exhaust all administrative

remedies.

In Dixie Fuel Co. v. Commission of Social Security

171 F.3d 1052 (6™ Cir. 1999), the Court held that

the doctrine of exhaustion of administrative remedies

is mandated to that which the statute or rule clearly

mandates according to Darby. In Dickinson v.

Petroleum Conversion Corp. (1950) 331 U.S. 507, the

Court held that pending a definite ruling on the

matter, itis best to seek review of the first judgment

whenever its finality is a reasonable possibility, and,

if unsuccessful, to bring up the second judgment.

Because the "finality" of a state court judgment is a

jurisdictional requirement, any party can raise a

finality issue at any stage of the proceedings in the

Supreme Court. Preferably, such an issue should be

- raised and discussed in the certiorari petition and

response thereto, but if the parties fail to identify or

discuss a finality problem, the court itself can raise

and dispose of the matter at any juncture. In

Duguene Light Co. v. Barasch (1989) 488 U.S. 299,

13

306, the Court inquired into and resolved a finality

probiem, "although the parties have not discussed

it." Only after satisfying itself that the State Court

ruling was truly final did the Court proceed to

resolve the Federal Constitutional issues at stake.

In Glisson v. U.S. Forest Service 55 F.3d 1327 (7™

Cir. 1995), plaintiff appeared pro se, the Court

dismissed plaintiffs case on the ground that

defendant had failed to exhaust his administrative

remedies. The Court dismissed with prejudice

because it was too late for plaintiff to cure the

problem that had caused the dismissal. The doors

of the administrative agency were closed to him

because of his failure to file a timely appeal to the

Regional Forester. In the instant case, the doors for

District were closed at the time it refiled the

i4

dismissed charges in the second administrative

preceeding.

In Howell v. INC 72 F.2d 290 (2™° Cir. 1995), the

Court ruled pursuant to the Supreme Court’s

holding that under the Administrative Procedures

Act, the doctrine of exhaustion applies "only when

expressly required by statute or when an agency rule

required appeal before judicial review and the

administrative action is made inoperative pending

that review."

In Kremer v. Chemical Const. Corp. (1982) 102 S.

Cx: 1883, the Court held that final state court

judgments are entitled to full faith and credit in Title

VII action, but indicated that unreviewed

determinations by state agencies do not preclude

trial de novo in federal court on Title VII claims.

15

In Marine Mammal Conservancy v. Department of

AGR 134 F.3d 409 (10 Cir. 1998), the Court held

"that the administrative judge’s decision denying

plaintiff leave to intervene is now ‘final’; it became

such under §1.142(c)(4) of the regulations because

plaintiff did not file an administrative appeal.

In McCarthy v. Madison (1992) 503 U.S. 140; 112

S. Ct. 1981; 196 L. Ed.2d 291, the Court held "of

paramount importance" to any exhaustion inquiry is

the Congressional intent" citing Patsy v. Board of

Reagents of Florida (1982) 457 U.S. 496, 501; L.

Ed.2d 172; 102 S. St. 2557. "We therefore must

consider whether §200, by providing the conditions

under which agency action becomes ‘final’ for the

purposes of judicial review, limits the authority of

courts to impose additional exhaustion requirements

16

as a prerequisite to judicial review. The Court

further held exhaustion serves the twin purposes of

protecting the administrative agency authority and

promoting judicial efficiency. Where Congress

specifically mandates, exhaustion is required.

In Southern Ohio Coal v. Office of Surface Min. 20

F.3d 1418 (6™ Cir. 1994), the Court held that:

Given that SOCCO has

failed to exhaust its

administrative remedies

and that no exception to

the exhaustion doctrine

applies, we hold that the

District Court erred in

-exercising jurisdiction over -

OSM under = section

1276(c). We further hold

that the court did not have

jurisdiction to. enjoin

enforcement of the OSM

cessation order.

17

In the instant case, the District Court did not have

jurisdiction to grant District and Commission a

summary judgment. In University of Tennessee v.

Robert R. Elliott (year) 478 U.S. 788; 106 S. Ct. 3220,

the Court held that the decision rendered in state

administrative proceedings and not reviewed by the

State court did not have preclusive effect on

university employee’s Title VII racial discrimination

claims and theirs did not preclude trial de novo on

these claims in federal district court. Civil Rights

Act 1964 §719 et seg.; §706 as amended; 42 U.S.C.A.

§2000(e) et seq., 2000(e)-5(b).

The long and short of it is that the decision

plainly collides with this Court's interpretation of the

key constitutional foundation of discriminatory

application of the law, and review should be granted

18

for that reason alone. The error is so palpable,

moreover that Horton suggests this is one of those

exceptional cases in which summary reversal would

be in order. The issue is not one that will benefit by

further consideration by lower courts.

CONCLUSION

The decision collides so squarely with this Court's

decisions and threatens such mischief that review

should be granted, with summary reversal an

appropriate disposition. If, on the other hand, there

might be basis for such a differentiating certiorari

19

should be granted for plenary review of this question,

which would surely be an important one.

Respectfully Submitted,

20

Filed August 23, 2005

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

V.

WILLIE J. HORTON, UR., ) No. 04-5589

)

Plaintiff ) D.C. No. CV-03-

02007-MLF

)

)

Judge Marilyn Huff

JAMES AHLER,COMMISSION )

ON PROFESSIONAL )

COMPETENCE, SAN DIEGO _}

COUNTY, EDWARD LOPEZ, _)

SUE BRAUN, JOHN DE BECK, )

RON OTTINGER, FRANCES _)

ZIMMERMAN, ALAN BERSIN, )

TERRANCE SMITH, KMIKO _ )

FUKUDA, MARY HOPPER, )

KATHERINE COFFARO, JAIME)

BUENSUCESCO, DEBERIE _ }

GOMEZ, TONY ALVARADO, _)}

SAN DIEGO UNIFIED SCHOOL)

DISTRICT and DOES 1-20 )

NOTICE IS HEREBY GIVEN that Willie J. Horton,

the plaintiff above named, hereby appeals to the

Supreme Court of the United States from the final

judgment of the three-judge 9" circuit court of

appeals, dismissing the complaint entered in this

action on August 5, 2005.

APPENDIX A-21

This appeal is taken pursuant to 28 U.S.C. §1253

(or other relevant statute].

_ Respectfully submitted,

Willie J. Horton, Jr. Pro Se

1898 Ballina Street

San Diego, CA 92114

Telephone: (619) 263-2776

APPENDIX A-22

Filed April 11, 2005

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIE J. HORTON, JR., No. 04-5589

D.C. No. CV-03-

02007-MLF

MEMORANDUM*

Plaintiff-Appellant

JAMES AHLER, Judge; et al.,

)

)

)

)

V. )

)

|

Defendants-Appellees |

Appeal from the United States District Court

for the Southern District of California

Marilyn Huff. Marilyn L. Huff, District Judge,

Presiding

Submitted April 4, 2005**

Before: KOZINSKI, HAWKINS, and CLIFTON,

Circuit Judges.

Willie J. Horton, Jr. appeals pro se the district

court's order dismissing his 42 U.S.C. § 1983 action.

We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review de novo a district court's dismissal based

on res judicata, W. Radio Servs. Co. v. Glickman, 123

F.3d 1189, 1192 (9th Cir. 1997), and we affirm.

The district court properly concluded that res

judicata bars Horton's current action because a final

7 APPENDIX A-23

judgment on the merits was entered in Horton's prior

district court action in which he could have raised

the instant claims. See Headwaters, Inc. v. U.S.

Forest Service, 399 F.3d 1047, 1052 (9th Cir. 2005)

citing Semtek Int'l, Inc. v. Lockheed Martin Corp., 531

U.S. 497, 501-02 (2001).

All pending motions are denied. Appellant's

request for judicial notice is denied. AFFIRMED.

* This disposition is not appropriate for publication

and may not be cited to or by the courts of this

circuit except as provided by Ninth Circuit Rule

36-3.

** The panel unanimously finds this case suitable

for decision without oral argument. See Fed. R. App.

P. 34(a)(2).

APPENDIX A-24

Filed August, 4, 2005

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIE J. HORTON, JR., ) No. 04-5589

Plaintiff-Appellant ) D.C. No. CV-03-

) 02007-MLF

Vv. )

) ORDER

JAMES AHLER, Judge; et al., }

Defendants-Appellees )

Before: KOZINSKI, HAWKINS, and CLIFTON,

Circuit Judges.

‘The panel has voted to deny appellant's petition

for panel rehearing.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote

on whether to rehear the matter en banc. See Fed. R.

App. P. 35.

The petition for panel rehearing and petition for

rehearing en banc are denied.

Appellant's request for publication is denied.

No further filings shall be accepted in this closed

appeal.

APPENDIX B-25

BEFORE THE

COMMISSION ON PROFESSIONAL COMPETENCE,

SAN DIEGO UNIFIED SCHOOL DISTRICT

COUNTY OF SAN DIEGO, STAT& OF CALIFORNIA

In the Matter of the

Dismissal of

WILLIE HORTON, JR.,

)

| OAH L-2000030303

NOTICE OF RULING ON MOTION

At the conclusion of oral argument on May 22,

2000, both parties were given the opportunity to file

further argument on the Motion until the closed of

business on May 23, 2000.

On May 23, 2000, Horton filed by fax

transmission HORTON'S SUPPLEMENTAL

AUTHORITIES REGARDING WHETHER THE

ADMINISTRATIVE TRIBUNAL MAY ISSUE AN

ORDER NUNC PRO TUNC. This was marked for

identification as Respondent's Exhibit C.

The parties' positions are amply stated in the

papers filed. Horton claims that the District failed to

provide him with a hearing within 60 days of his

APPENDIX B-26

demand for hearing pursuant to Education Code

section 44944 and that this failure constitutes a

jurisdictional defect that cannot be remedied. The

District claims alternatively, 1) that the actual date

of the request for hearing is April 3, 2000 and not

February 28, 2000, and that the hearing will

commence within the statutory time since it is set to

begin on June 1, 2000; and 2) that the Office of

Administrative Hearings has the authority to granta

continuance of the hearing and that such a grant of

a continuance under Education Code _ section

44944(a), would extend the time for the

commencement of the hearing.

When the arguments are reduced to their

essence, the issue is quite straightforward. Under

the facts of this case, does the District's failure to

provide Horton with a hearing within 60 days of his

request for hearing constitute a jurisdictional defect

that cannot be remedied?

Although the District argues otherwise, the

operative date on which Horton requested a hearing

APPENDIX B-27

is February 28, and the Education Code required

that the District afford him a hearing on the charges

within 60 days. The 60" day from Horton's February

28, 2000 request for a hearing was April 28, 2000.

Willie Horton is a permanent classified and

certificated employee of the District and is currently

assigned as principal of the District's alternative

school, Youth Opportunity Unlimited.

On February 1, 2000 the District served Horton,

pursuant to Education Code section 44934, with

Dismissal Charges alleging that cause existed to

dismiss Horton from his employment as a principal.

Horton requested a hearing on February 28, 2000.

On March 21, 2000, Horton was mailed a Notice of

Case Setting from the Office of Administrative

Hearings setting the case for hearing on June lst

and 2nd. On March 29, 2000, Horton's attorney

received an Accusation from the District and on April

3, 2000 Horton's attorney filed a Notice of Defense.

A foundational premise of the administrative

process is the belief that the public interest is best

APPENDIX B-28

served by a process that is speedy and efficient and

not burdened by too many technical rules. That is

why the rules of evidence are generally related and

there are far fewer technical defenses available. The

notion is that in matters that are Solved with the

public interest (and occupational licensing clearly

meets this standard) hearings on the merits are the

preferred method of resolving disputes.

In a sense, this is what the District argues. The

District claims the charges against Horton are very

serious and, because of this, the public interest

requires that a hearing on the merits be ctmideioted.

Further, the District argues that the Office of

Administrative Hearings (OAH) has the power to

fashion relief that will insure that this matter be

heard on the merits.

Although all courts have certain powers inherent

in their nature, each court has enumerated powers

that flow from the constitution or from legislation.

These enumerated powers determine the scope ofa

court's authority to act. The District argues that

APPENDIX B-29

OAH has the power to grant a continuance of the

hearing nunc pro tunc to a date within the original

60 day window thus extending the time to commence

the hearing. This is a most interesting argument but

one which vests power in this Court that is beyond

its jurisdiction.

There are three cases that must be read in

conjunction with Education Code section 44944.

They are 1) Governing Board of the Palos Verdes

Peninsula Unified School District v. Felt (1976) 55

Cal.App.3d, 156, 2) Powers v. Commission on

Professional Competence (1984) 157 Cal.App.3d 560,

and 3) Wilmot v. Commission on Professional

Competence (1998) 64 Cal. App.4th 1130. Education

Code section 44944(a) reads in relevant part:

In a dismissal or suspension proceeding

initiated pursuant to Section 44934, if a

hearing is requested by the employee, the

hearing shall be commenced within 60 days

from the date of the employee's demand for a

hearing.

APPENDIX B-30

None of the cases cited either directly or by

implication allow this administrative tribunal to cure

this fatal procedural defect. These cases do stand for

the proposition that the term "shall be commenced"

in Education Code section 44944(a) is mandatory.

Further, the parties, according to these cases, have

the power, should they jointly feel the need for more

than 60 days to prepare for hearing, to extend the

time by stipulating that the necessary ceremonial of

opening the record has been observed. Also, if a

continuance is granted pursuant to Government

Code section 11524, the time to commence the

hearing shall be extended for a period equal to such

continuance.

Here, no such action took place during the critical

60 day period. There was no waiver by the parties;

there was no stipulation; there was no opening of the

record to satisfy the jurisdictional requirement of

Section 44944.

The District's attorney chose the trial date of June

1 and 2 to satisfy the calendaring needs of the

APPENDIX B-31

attorney. That is clear from the Declarations of

Janice Brown, Esq. and paralegal Stella Neuman.

The District's Motion for Continuance cannot be

granted when it is made for the first time after the

expiration of the 60 day period within which to

commence the hearing, This administrative tribunal

has no such power to revive that which has been

extinguished by granting a Motion for Continuance

Nunc Pro Tunc.

The Education Code is clear with respect to the

mandatory, mot permissive, requirement to

commence such a hearing within 60 days of

respondent's request. The cases that interpret and

explain the meaning of the statute are, likewise,

clear. There is no room for doubt.

By granting the relief requested by the District,

the Administrative Law Judge (ALJ) would be turning

the Education Code on its head and in effect,

rewriting it. All counts and judges have some

discretion to interpret the laws. However, an ALJ at

this level of judicial review does not have discretion

APPENDIX B-32

to rewrite the Education Code and create a new and

novel way to avoid the clear and unambiguous

language of Education Code section 44944,

The Motion to Dismiss filed by respondent Horton

is granted. The District's Motion for Continuance is

denied ©

ITIS SO ORDERED.

Dated: May 25,2000 STEPHEN E. HJELT

Administrative Law Judge

Office of Administrative

Hearings

APPENDIX B-33

File Stamped April 12, 2004

UNITED STATES DISTRICT COURT

SOUTHERN CALIFORNIA

WILLIE J. HORTON, JR., ) CASE NO.

) CV-03-02007-

Plaintiff ) H(NLS)

)

Vv. )

JORDER GRANTING

JAMES AHLER, COMMISSION )DEFENDANTS’

ON PROFESSIONAL )MOTION TO

COMPETENCE, SAN DIEGO _)DISMISS AND

COUNTY, EDWARD LOPEZ, )TERMINATING

SUE BRAUN, JOHN DE BECK, )CASE

RON OTTINGER, FRANCES )

ZIMMERMAN, ALAN BERSIN, )

TERRANCE SMITH, KMIKO )

FUKUDA, MARY HOPPER,

KATHERINE COFFARO, JAIME)

BUENSUCESCO, DEBERIE )

GOMEZ, TONY ALVARADO,

SAN DIEGO UNIFIED SCHOOL)

DISTRICT and DOES 1-20, )

Defendants.

~_—_—eeo—sr

The District served Plaintiff on September 29,

2000, with another notice of dismissal based on the

same charges. Pursuant to applicable statutes, the

District filed an administrative accusation on

November 13, 2000. On November 21, 2000, Plaintiff

APPENDIX C-34

exercised his right to request a hearing challenging

his dismissal before the Commission on Professional

Competence. The Commission held the hearing on

February 8, 9, 13, 14, and 16, 2001, before

Commission Members Kindy Stun-pp, Alan S.

Sachrison, and Administrative Law Judge James

Ahler. The parties were given the opportunity to

present evidence, examine and cross-examine

witnesses, and make arguments based on the

evidence at the five day hearing. On March 15, 2001,

the Commission issued a 27-page decision in which

it found that the District's decision to dismiss

Plaintiff was supported by a preponderance of the

evidence, and in which it found that Plaintiff had not

established that he had been’ subjected to

discrimination or retaliation

In the current action, Plaintiff has filed a new

Complaint which makes the same allegations as his

prior complaints in state and federal courts. Plaintiff

APPENDIX C-35

is barred from seeking to relitigate these claims by

the doctrine of res judicata.

Federal courts adhere to the doctrine of res

judicata, which directs that "a final judgment on the

merits of an action precludes the parties or their

privies from relitigating issues that were or could

have been raised in that action." Allen v. McCunv,

449 U.S. 90, 94 (1980); Whaley v. Rydman, 887 F.2d

14 976, 978 (9th Cir. 1989) ("{o]nce a court has

entered a final judgment on the merits, res judicata

bars a subsequent action between the same parties

over the same cause of action); Davis & Cox uv.

Summa 16 Corp.,751 F.2d 1507, 1518 (9th Cir.

1985)9 in part superceded by statute, 842 F.2d 1154

(9th Cir. 1988) ("{a] final judgment on the merits

bars a subsequent action between the same parties

or their privies over the same cause of action ... [and]

prevents litigation of all grounds and defenses that

were or could have been raised in the action"). The

Supreme Court has explained that the purpose of res

judicata is to "relieve parties of the cost and vexation

APPENDIX C-36

of multiple lawsuits, conserve judicial resources,

and, by preventing inconsistent decisions, encourage

reliance on adjudication." Allen v, McCurry 449 U.S.

at 94.

APPENDIX C-37

—

: Supreme Coun. UG }

KFit_en j

4 tLe i

j

No. 05-1094 MAR 3 1 2006

EOF THE CLERK

{

j

Saeeeetee inl

In The -

Supreme Court of the Anited States

,

v

WILLIE J. HORTON, JR.,

Petitioner,

v.

JUDGE JAMES AHLER, COMMISSION ON

PROFESSIONAL COMPETENCE, SAN DIEGO

COUNTY, EDWARD LOPEZ, SUE BRAUN, JOHN DE

BECK, RON OTTINGER, FRANCES ZIMMERMAN,

ALAN BERSIN, TERRANCE SMITH, KIMIKO FUKUDA,

MARY HOPPER, KATHERINE COFFARO, JAIME

BUENSUCESCO, DEBERIE GOMEZ, TONY ALVARADO,

SAN DIEGO UNIFIED SCHOOL DISTRICT,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

*

SUPPLEMENTAL BRIEF ON PETITION

FOR A WRIT OF CERTIORARI

S

WILLIE J. HORTON, JR.

1898 Ballina Street

San Diego, CA 92114

(619) 263-2776

Pro Se

|

TABLE OF CONTENTS

Page

cc ek cuctneiierdsbencevweessecnees 1

REASONS FOR GRANTING THE WRIT.................. 1

ai svccn de dinasedusarcsicediectensdesceuavevssescsisare 3

i

TABLE OF AUTHORITIES

Page

CASES

Bennett v. Spear, 520 U.S. 154 (1997)..........ccccececeeseceesteeeeee 2

Chicago & Southern Airlines v. Waterman S.S.

CP Fe ae ee inte sesivein incite poienoenctubiipainaimnrednia 2

Darby v. Cisneros, 509 U.S. 137 (1993)............ccccseseseereee 2

Norton v. Southern Utah Wild. Al., 159 L.Ed.2d 137

CD saialk vise sonics bcapecpnsansecemateadmeind waLando hese ciigibaete Acipkedanies 2

Pinho v. Gonzalez, 423 F.3d 193 (3rd Cir. 2005)................. 2

Port of Boston Marine Terminal Assn. v. Rederiak-

tiebolaget Transatlantic, 400 U.S. 62 (1970)................... 2

STATUTES

California APA Government Code section 11524............ a

INTRODUCTION

The decision of the Ninth Circuit should not be al-

lowed to stand because it incorrectly suggests that gov-

ernments have the right to exclude whole classes of

citizens from the exercise of a set of Constitutional rights

simply because of their race, gender or age. This case

involves Title VII claims because Petitioner filed a charge

of discrimination (charge number 345A00536) in Novem-

ber 1999 against the San Diego Unified School District

(“District”) approximately five months before the adminis-

trative agency ruling.

The discrimination claims (Title VII) were being

investigated by the Equal Employment Opportunity

Commission (EEOC) at the time of the first Administra-

tive Tribunal ruling. (See Appendix “A”, App. 1) Petitioner

also filed a discrimination complaint on December 11, 2000

in the United States District Court, Southern District of

California, Case No. 00-CV-2450-H (JSF). The District

retaliated against Petitioner by hiding the first adminis-

trative ruling and terminating his employment as a high

school principal.

Respondents’ actions caused confusion in the State

and Federal courts by hiding the first ruling by using the

same case number when refiling the same charges.

¢

REASONS FOR GRANTING THE WRIT

The Distnct and the Commission on Professional

Competence (“Commission”) violated the Administrative

Procedural Act (APA) which is settled law under the

California APA Government Code section 11524.

The first administrative ruling was a final and non-

discretionary action subject to judicial review, and the

ruling adversely affected the District.

Petitioner asks this Court to enforce the finality

requirement because the two conditions have been met. In

Pinho v. Gonzalez, 423 F.3d 193 (3rd Cir. 2005), the final-

ity requirement was used as follows:

1. The action marked the “consummation” of the

agency’ decision-making process. Chicago & Southern

Airlines v. Waterman S.S. Corp., 333 U.S. 103 (1948).

2. The action must be one by which “rights or obliga-

tions have been determined,” or from which “legal conse-

quences will flow.” Port of Boston Marine Terminal Assn. v.

Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91

(1970); Bennett v. Spear, 520 U.S. 154, 178 (1997). The

agency ruling at issue before this Court satisfies the

above-conditions to meet the finality requirements.

In Norton v. Southern Utah Wild. Al., 159 L.Ed.2d 137

(2004), the Court looked at what limits the APA places

upon judicial review of agency action. The APA authorizes

suit by a person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency action

within the meaning of a relevant statute. This Court also

referred to the Attorney General’s Manual on the APA, a

document whose reasoning has been pervasive. See, e.g.,

Darby v. Cisneros, 509 U.S. 137 (1993).

This Court has never addressed the issue of two

different administrative rulings under the same case

number where the first ruling was not appealed according

to the APA statute, Gov. Code section 11524(c).

3

The District, its counsel and the Commission were

disingenuous in hiding the fact that there was a ruling on

May 25, 2000 that dismissed the case against Petitioner. It

is reprehensible conduct and unbecoming to attorneys not

to disclose to the court the full facts.

The District and the Commission violated Petitioner’s

due process by holding a second administrative hearing on

the same charges.

¢

CONCLUSION

The Court should grant this Petition to correct a gross

miscarriage of justice, and to enforce the Equal Protection

clause under the Fourteenth Amendment.

Respectfully submitted,

WILLIE J. HORTON, JR.

1898 Ballina Street

San Diego, CA 92114

(619) 263-2776

Pro Se

App. 1

APPENDIX A

RESPONSE TO EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION’S NOTICE

OF CHARGE OF DISCRIMINATION

AND REQUEST FOR INFORMATION

CHARGE NUMBER: 345A00536

Charging Party: Willie Horton

Respondent: San Diego Unified School District

Please be advised that Respondent (“District”) has not

completed its investigation of all the facts relating to

charging party's claims. This preliminary response reflects

the District’s position, at this time, but does not prohibit

the District from supplementing or amending this re-

sponse at a later date.

A. REQUEST FOR INFORMATION:

1. Correct name and address of the facility named

in the charge.

Response: San Diego Unified School District

Administrative Offices

4100 Normal] Street

San Diego, California 92103

2. Supply an organizational chart, statement, or

documents, which describe your structure, indi-

cating, if any, the relationship between it and su-

perior and subordinate establishments within

the organization.

Response: See exhibit A, the District’s organizational

chart, as provided on its web-page www.sandi.net. Fur-

ther organizational information is available on the

web page.

App. 2

3. State whether your organization has a contract

with any agency of the federal government or is a

subcontractor on a project, which receives federal

funding. Is your organization covered by the pro-

visions of Executive Order 11246? If your answer

is yes, has your organization been the subject of

a compliance review by the OFCCP at any time

during the past two years?

Response: The District does receive federal funding

in certain instances, but is not governed by Executive

Order 11246.

4. Submit a written position statement on each of

the allegations of the charge, accompanied by

documentary evidence and/or written state-

ments, where appropriate. Also include any addi-

tional information and explanation you deem

relevant to the charge.

Response: See Exhibit K (audit procedures), L (dis-

ciplinary, involuntary reassignment procedures/leave

procedures) attached hereto.

6. Submit copies of all written rules relating to em-

ployee duties and conduct. Explain how employ-

ees learn the contents and rules.

Response: See Exhibits G, I, K, L and M. Employ-

ees learn the rules by extensive training.

7. List all employees who committed the same or

substantially similar offense(s) that the charging

party committed and the disciplinary action

taken against them. Supply backup documenta-

tion for the list. Include name, position, title,

race, and indicate if the employee has made an

internal or external complaint of discrimination.

App. 3

Response: There are other District employees who

have committed the same or substantially similar of-

fenses as Horton. When presented with their offenses,

these employees either voluntary [sic] resigned, in

many instances, or were terminated. The District is

unable to provide the names of these third parties

without violating their privacy rights.

8. List all the administrators who have been sub-

jected to unannounced audits, involuntary reas-

signments, placed on personal and/or on

administrative leave within the relevant time

period. For each employee, include employee

name, position, title, race, reason(s) for, date(s) of

action(s), and indicate if the employee has made

an internal or external complaint of discrimina-

tion.

Response: The District is not able to provide the in-

formation requested herein due to the privacy of third

parties not involved in this action. Nonetheless, the

District responds that all managerial District em-

ployees are aware that the District has the right and

the responsibility to audit a school if misconduct is

discovered. In addition, all schools are routinely au-

dited. Horton’s terms and conditions of employment

did not “change” pursuant to the District’s decision to

audit. (See audit policies attached hereto as Exhibit

K..)

PERSON(S) PREPARING RESPONSE:

Jo Anne Sawyerknoll

General Counsel

San Diego Unified School District

Andrea Niehaus

Director of Internal Audit

San Diego Unified School District

App. 4

Deberie Gomez

Deputy Administrative Officer-Human Resources

San Diego Unified School District

Janice P. Brown, Esq.

Vantage Law Group, LLP

4370 La Jolla Village Drive, 4th Floor

San Diego, California 92122

Telephone: 858-646-3090

Fax: 858-646-3091

Attorney for Respondent

Signature: Dated: May 31, 2000