# Petition for Writ of Certiorari — White v. Donley (No. 09-184)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0808%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

MPR EKUS
\oy (1) 09-184 JUN 3 0 2008

OFFICE OF THE CLERK

No.

IN THE SUPREME COURT OF THE
UNITED STATES

Vergie White,
Petitioner
VS.

Pete Geren, Acting Secretary, U.S. Dept of the Air
Force,

Respondent

On Petition For A Writ Of Certiorari To
United States Courts Of Appeals

For The Ninth Circuit

Petition For Writ Of Certiorari

Vergie White

45455 N. 3™ Street East
Lancaster, CA 93535
661-942-1948

QUESTIONS PRESENTED FOR REVIEW

Question #1° Are federal agencies required to follow

Supreme Court's decision in Adarand? Pg. 4

Question #2: Are district and circuit courts required
to determine the Defendant's outreach to the
community to see if diversity 1s effective? Pg. 36.

Question #3: Does an error of law affect class
members’ &* amendment rights? Pg. 40

Question #4: There is no precedence as to what
happens to EEO individual claims when class claims
are In federal court. Pg. 49

Question #5: When a circuit court affirms district
court’s decision without review, does a lack of review
affect class members’ 5+: amendment rights? Pg. 63

Question #6: If a Plaintiff files a complaint that Is
similar to a case pending in Supreme Court, is the
district court allowed to dismiss 1t? Pg. 68

Question #7: There is a private cause of action for
failure to implement an affirmative action plan. Pg
70

Question #8: Is there a private cause of when federal
agency does not adhere to its own regulations Pg

77(pg 9 of DC's order)

LIST OF PARTIES

[x] All parties appear in the caption of the
case on the cover page.

[ ] All parties do not appear in the caption of
the case on the cover page. A list of all parties to the
proceeding in the court whose judgment is the
subject of this petition is as follows.

TABLE OF CONTENTS
Opinions
BIN. cio'ionecicc 00s oocvaceescecesseuueubeenceniaaae 1
Jurisdiction
asd waweledigss bases ioc veo sanuen ucwedesesiee 1
Constitutional And Statutory Provisions
PN aos vive on 0060s:us:ncesiecnccomeeaeeeaaeene
Statement OF The Caee .....<ccccecseccacsccscacsuaeen 2
Reasons For Granting The Petition.............. 4
are 80

App 1 — Order Granting Defendants’ Motion To
Dismiss, 27 Oct 2005

App 24 — Memorandum 26 Jan 2009, 9% Circuit

App 28 — Order, 20 Apr 2009, Case #05-56816

App 30- Email From A Non-class Member
App 31 - Email From A Class Member
App 32 — EEO Desire List

App 34 — Final Order, October 2004, Dept. Of The
Air Force

App 45 — Letter, 19 May 2005, Nitin Shah, M.D.
(Back Problems)

App 46 — Letter, 28 Nov 2005, Young K. Lai, M.D.
(Cancer Surgery)

TABLE OF AUTHORITIES CITED

Page
CASES

Adarand Constructors, Inc., v Pena, 115 S.Ct. 2097
(1995) 6

Borough of Ridgefield v New York Susquehanna &
Western Railroad, 810 F.2d 57 (3'4 Cir. 1987) 71

Bourdon v Loughren, 386 F.3d 88, (2d Cir. 2004) 63

Bradshaw v Zoological Society of San Diego, 662 F.2d
1301 (9t Cir. 1981) 58

City of Richmond v J.A. Croson Co., 488 U.S. at 486
(198) 7

Coca-Cola Company v Tropicana Products Inc., 690
F.2d 312 (2"4 Cir. 1982) 40

Howard v Evans, EEOC #570-2006-00176X (April 25,

2006) 49
King v Jackson, Secretary of Housing & Urban Dev.,
#06-5149 (USDC 2007) 73

Koch v US Navy Public Works #91-55321(9t Cir.
1992) 58

Lewis, et.al. v Mineta, Secretary, Department of
Transportation, EEOC #310-99-5861X and EEOC
Appeal #01A40442, (Sept 28, 2005) 24

Lilley v BTM Corporation, 958 F.2d 746, (6% Cir.
1991) 66

Marshall v Wouldridge, 958 F.2d 368 (4th Cir. 1992)
56

Martinez v Dept of The U.S. Army #02-50765 (5 Cir
2002) 45

Monreal v Potter, #02-1195 (10th Cir. 2004) 51

Munoz v Aldridge, Secretary of the U.S. 894 F.2d
1489 (5th Cir) 1990 44

NAACP v City of Bayonne, New Jersey, #96°5848 (34
Circuit, 1998) 39

Page v Bolger, Postmaster General. 645 F.2d 227 (4%
Cir. 1981) 73

Parker v. Baltimore & Ohio Railroad, 652 F.2d 1012,
(D.C. Cir. 1981) 75

Ray v Nimmo, Administrator, U.S. Veterans Admin.
704 F.2d 1480 (11* Cir. 1983) 49

United States v Caceres, 440 U.S. 741, 99 S.T. 1465,
1470, 59 L.Ed.2d 733 (1979) 78

vi

Vera v Utah Department of Human Services #02-

4112 (10 Circuit, 2003) 57

Whitman v Department of Transportation, No. 04-

1131 68
STATUTES AND RULES

Memorandum Directive Chapter 8 Complaints of
Class Discrimination 23

OTHER
Wikipedia 5

Memorandum to General Counsels: Re: FPost-
Adarand Guidance on Affirmative Action in Federal

Gov. 2/29/1996 6
Ensuring Employment Equity: Are Federa/
Diversity Programs Making A_ ODrifference? By
Katherine Naff & Edward Kellough 14

Employment Discrimination Plaintiffs In Federal
Court: From Bad To Worse. Harvard Law & Policy
Review: Kevin Clermont & Stewart Schwab, 65

Federal Register Volume 64 No. 5 1/8/99 28

Federal Civilian Employment Affirmative Action
76

PETITION FOR WRIT OF CERTIORIARI

Petitioner, Vergie White, respectfully prays that a

writ of certiorari issue to review the judgment below.

OPINIONS BELOW

The order of the United States Court of Appeals for
the Ninth Circuit appears at Appendix A to the

Petition and was not reported.

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

Civil Rights of 1964
JURISDICTION

| |] For cases from federal courts:

The date on which the United States Court of
Appeals decided my case was

[ ] No petition for rehearing was timely filed in my
case.

[X] A timely petition for rehearing was denied by the

United States Court of Appeals on the following date:

20 Apr 2009, and a copy of the order denying

rehearing appears at Appendix 1 (“App 1”)

[ ] An extension of time to file the petition for a writ
of certiorari was granted to and_ including

(date) on (date) in

Application No.

The jurisdiction of this Court is invoked under 28

U.S.C. Section 1254(1).

STATEMENT OF THE CASE

Vergie White is an African-American female
and is a former government employee who began her
career in 1974 and retired after 26 years in 2001.
Edwards Air Force Base, CA (EAFB), according to

AboveTopSecret.com, has been around

...for more than 50 years...and has been

..an epicenter for revolution tn flight

and a significant flight-testing facility

for investigating the critical disciplines

of flight.

EAFB is home to the Air Force Flight Test
Center (AFFTC)! and is the largest employer in the
Antelope Valley, which includes cities such as
Palmdale and Lancaster. During her employment,
she filed an individual EEO complaint alleging
discrimination based on race, sex, color, age, and

reprisal (EEOC #340-A1-3604A).

' ..test, develop, and evaluate aircraft in the U.S. inventory. The

AFFTC ts responsible for research and development of the nation’s
aerospace weapons systems, from design state to operational
readiness. Edwards AFB ...approximately 785 military officers and

nearly 3,600 enlisted men and women plus some 10,800 civilian

employees.

Petitioner changed her complaint to a class
complaint. The Administrative Law Judge (ALJ)
ruled against plaintiff without granting discovery.
On 3 November 2004, Petitioner filed class action
claims in US District Court, Central District of CA,

the Honorable Judge Nora Manella presiding.

On 27 Oct 2005, the DC granted Defendant's
motion to disiniss. (App 1). On 21 Nov 2005,
Petitioner filed an appeal to the 9% Circuit. On 28
Jan 2009, the 9t Circuit affirmed the DC’s ruling.
(App 24). On 3 March 2009, Petitioner filed a petition
for panel rehearing/enbanc. On 20 April 2009, the 9t

Circuit denied the petition. (App 28)

REASONS FOR GRANTING THE PETITION

Introduction

Question #1- Are federal agencies required to follow
Supreme Court’s decision in Adarand?

According to Wikipedia, strict scrutiny:

..1Js the most stringent standard of judicial
review used by United States courts reviewing
federal law. To pass strict scrutiny, the law or policy
must satisfy three prongs: First, it must be justified

by a compelling governmental interest...

Second, the law or policy must be narrowly
tailored to achieve that goal or interest... Finally,
the law or policy must be the least restrictive means
for achieving that interest... The Court must use
strict scrutiny if a/the impact is so ‘stark and
dramatic’ as to be unexplainable on non-racial
grounds... (b/the historical background suggests
intent; or (c)the legislative and administrative

records show intent.

This is in comparison to a rational basis

review, which is:

...the lowest level of scrutiny applied by courts

|

deciding constitutional issues... The higher levels are
typically referred to as intermediate scrutiny... The
| rational basis test 1s the default test for courts
deciding questions of law regarding government
action. If a government action conflicts with another

constitutional value, then judges may turn to a

higher level of scrutiny.

Defendant is not following the requirements
set forth in Adarand Constructors, Inc., v Pena, 115
S.Ct. 2097 (1995) which mandates a strict scrutiny
standard. As stated in Memorandum to General
Counsels: Re’ Post-Adarand Guidance on Affirmative

Action in Federal Gov. 2/29/1996:

Under Adarand, however, the
government does have a_ compelling

interest in acting to remedy the identified

tae ranean itll

effects of its own discrimination, or of its

own practices that unintentionallv extend
the effects of discrimination by others. City
of Richmond v J.A. Croson Co., 488 U.S. at
486 (1989)(plurality opinion)...Race-based
remedial action may be aimed at ongoing
patterns and practices of exclusion, or at
the lingering effects of prior discriminatory
conduct that has eased. Adarand, 115 S.Ct.

at 2133 (Souter, J. dissenting)

However, Defendant has consistently denied
that they have been acting in a discriminatory way,
and therefore, has not placed any remedial steps to

eliminate policies/practices:

While discrimination in federal
employment may not now be the pervasive

problem it once was, instances of

discrimination still persist in federal

employment... The President’s July 1995
Affirmative Action Review noted that one
of the lingering effects of historical
practices has been that minorities and
women are still underrepresented at higher

grade levels. [hid.

Even though Defendant has been aware of this
class complaint, e-mails have been written by a class
and non-class member that works at Edwards AFB,
CA, complaining of discriminatory treatment. (App
30 & 31). The only way to stop the Defendant is by

judicial order:

A prior judicial, admunistrative, or
legislative determination of
discrimination by the government ts not

required before the government may

voluntarily choose to use affirmative

action efforts. City of Richmond v J.A.
Croson Co., 488 U.S. at 486 (1989) 488

U/. S. a C 5OO.

Statistical/non-statistical information show
that the Defendant has been discriminating against

minorities.

Statistics and Non-statistical Information

The EEOC has required federal agencies:

to fill out MD-715. This
Management Directive 1s to ensure
...that all employees and applicants for
employment enjoy equality of
opportunity in the federal workplace
regardless of race, sex, ational origin,
color... Furthermore ...Section 717 of

Title VII requires federal agencies to

10

take proactive steps to ensure equal
employment opportunity for all their
employees and applicants for

employment.

This means that agencies must
work to proactively prevent potential
discrimination before rt occurs and
establish systems to monitor compliance
with Title VII. Agencies must regularly
evaluate their employment practices to

identify barriers.

The EEOC defines barrier as the following:
An agency’ policy, principle,
practice or condition that limits or tends
to limit employment opportunities for

members of a particular gender, race or

ethnic background... Barriers can result

11

from prejudice, stereotyping, fear,
comfort level or customer preference.
Many employment barriers are built
into the organizational and operational
structures of agency, embedded in the
day-to-day procedures and practices of

the agency.

The Defendant is the United States Air Force,
but a comparison of the other Armed Forces is
necessary to determine the extent of Defendant’s
barriers facing minorities. The following are a
sampling of questions from MD-715 that have

created barriers:

e Are management/personnel policies,
procedures and practices examined at regular
intervals to assess whether there are hidden

impediments to the realization of equality of

12

opportunity for any group(s) of employees or

applicants? 29 CFR Section 1614. 102(bi(3)

US Army (Materiel Command) YES

AirForce NO
Naval Air Warfare Center Weapons Division YES

Explanation: H-2

e Have timetables or schedules been established
For the agency to review its Merit Program
Policy And Procedures for systemic barriers
that may be impeding full participation in

promotion opportunities by all groups?

US Army Materiel Command YES

AirForce NO
Naval Air Warfare Center Weapons Division YES

e Have timetables or schedules been established
For the agency to review its Employee
Development/Training Programs for systemic

barriers that may be tmpeding full

13

participation in promotion opportunities by all

groups?
US Army Materiel Command YES
Air Force NO

Naval Air Warfare Center Weapons Division YES

These barriers have affected minorities. For
example, since there are no reviews for Employee
Development/Training program, Black males make
up 10% of the workforce, but only 2% (GS 5-8) and
6% (GS 9-12) and 0% in GS 13-15 in Career

Development Programs.

Black Women make up 10% of the work force,
but 0% (GS 5-8) and 0% (GS 9-12). It is similar for

other races. (Edwards AFB FY 2004 figures).

14

Residual Effects With Class Members Due To
Barriers By Defendant

Separations. In Ensuring Employment Equity’ Are

Federal Diversity Programs Making A Difference? by

Katherine Naff & Edward Kellough, they examined:

promotions, discharges, and voluntary quits,
using data from OPM’s Central Personnel
Data File (CPDF), an employment database
that includes most civilian federal

employees.

Regarding separations, the authors noticed that:
...there is a tendency to discipline African
American employees more harshly than
white employees... even controlling for other
variables, OPM concluded, ‘there is no other

known quantitative factor or combination of

factors, excluding race that’ entirely

15

accounts for the disparity in discharge rates

for African-Americans.’

Air Force Separation Rates

FY 2003-2004 In FY 2003-2004, Black males made
up 6.1% of the Air Force, but account for 8.6% of
separations. Hispanic Males account for 4.9% of the
workforce but 5.5% of involuntary separations. Other
races are involved as well. With voluntary
separations, Black males and females have the
highest rate of all minorities. There is the same

pattern for FY 2005.

FY 2005 The Air Force created a barrier by not

keeping track of separations:

Currently, we track the type of separation
such as retirement, resignation, etc. but not

necessarily the reason an employee Is

leaving the AF workforce. Generally we

16

have not conducted exit interviews. Without
the data, we do not know the reasons that

employees are separating.

Naff & Kellough state in their report:

..a decision to quit Is strongly influenced
by employees’ age, education, and level of
pay. However, voluntary turnover can also
result from dissatisfaction with the job and
perceptions of unfairness in decisions
regarding work-related outcomes (e.g.,
promotions) There 1s evidence that
African-Americans are often less satistied
with therr jobs than whites and more Irkely

to perceive a lack of fairness

Aur Force Promotions

Naff & Kellough write:

17

that the availability of promotion
opportunities for minorities and women
within an organization Is an important
indicator of equity... The dearth of
minorities and women in senior federal jobs
was seen as evidence of “glass ceiling”... the
Merit systems Protection Board (MSPB/)
found that women are promoted
proportionately less than men and non

minorities from entry or lower level jobs.

Looking at the Air Force’s FY 2005 GS levels,
you can see that the higher the GS rating, the fewer
minorities exist (all numbers rounded. “WM = White

Male, BM = Black Male, etc.

GS — Air Force

GS WM WF BM BF HM_HF ASM

13. 166% 87% 9.1% 60% 109% 43% 16 8%

6.5% ASF

18

GS _WM_WF BM BF HM HF ASM

14 6.0% 2.5% 2.5% 1.6% 2.8% 1.4% 3.5%
1.6% ASF

GS_ WM WF BM _BF HM HF ASM

15. 2.1% 0.9% 06% 0.3% .08% .03% 0.6%

%

SES WM WF BM BF HM HF ASM

SES 0.4% 0.1% 0.1% 0.0% 0.1% 0.0% 0.4%
0.0% ASF
% Wrk 78.5% 70.2% 9.6% 16.5% 7.5% 7.9% 3.3%

4.10%

Note: “% Work” means percentage of the
workforce. In this case Black Males make up 9.6
percent of the workforce, but only 0.6% of GS 15

positions.

The Air Force figures correlate with Edwards

AF B's figures:

Administrative — FY 2001
General Schedule (GS) — Edwards AFB

19

GS_WM_WF_ BM BF HM HF ASM
13_ 58.2% 23.1% 66% 2.2% 3.3% 3.3% _ 0.00%

1.10% ASF
GS_ WM WF BM BF HM HF _ASM

14 53% 41% 00% 0.0% 00%. 00% 0.0%

0.0% ASF

General Manager (GM) — Edwards AFB
GM WM WF BM BF HM HF ASM

13_ 64% 20% 7.0% 09% 40% 0.9% 0.0%

0.9% ASF
14 61% 35% 0.0%. 0.0% 0.0% 0.0% 0.0%
0.0 % ASF

GM _WM_WF_BM BF HM HF ASM

%Wk 64% 15% 2.0% 2.0% 2.0% 0.54% 9.9%
19% ASF

With the Air Force FY 2005 figures, the same
pattern exists for FY 2003-2004. An analysis was

also done for Wage Grade employees (blue collar

positions) for FY 20085:

20

Wage Grade (WG) ~— Air Force
WG _WM__WF__BM BF _ HM HF ASM°
13__1.4% .04% 06% 0% .07% 00% 1.0%

0.00% ASF

14.08% _ _. 04% .05% 03% .01%. 0% 0%

0.00% ASF

GM_WM WF BM BF _ HM HF ASM

15 03% 0.0% 01% 00% 01% 05% 0.02%

0.00% ASF

%Wrk 79% 70% 9.6% 17% 8% 8% 3%
4% ASF
This Air Force figure correlates with Edwards AFB’s

figures:

Wage Grade (WG) — Edwards AFB
WG _ WM _WF BM BF HM HF ASM

13 64% 20% 7% 10% 4.0% 10% 0%

WG _WM_WF BM __BF HM HF ASM
14. 61% 35% 0% 0% 0% 0% 0%
0% ASF

WG WM WF BM _BF HM _HF ASM

%Wk 69% 5% 11% 11% 0.5% 0.5% 0.5%

21

.26% ASF

Wage Leader (WL) — Edwards AFB

WL WM WF BM BF HM HF ASM
11 57% 14% 14% 0.0% 14% 0% 0%

0.00% ASF

12_72% 6% 6% 00% 17% 0% 0%

0% ASF

%Wk 70% _ 5% 11% 11% 0.5% 0.5% 0.5%
.0.2% ASF

Wage Supervisor (WS) — Edwards AFB
Wage Supervisor (WS)

WS WM WF BM BF HM HF ASM

10_ 64% 20% _ 7% 10% 4% 10% 0%

10% ASF

WS WM WF BM BF HM HF ASM

12 60.87% 34.78% 0.00% 0.00% 0.00% 0.00% 0.00%

0.00% ASF

WS WM __WF__BM BF HM HF ASM

%Wk 70% 5% 11% 11% 5% __ 5% 5%

2% ASF

With the Air Force FY 2005 figures, the same
pattern exists for FY 2003-2004. The Air Force

acknowledges the problem:

22

The most significant issue for Air Force 1s
the number of ...minorities in GS-13 through
GS-15 positions, which is reflective of the

glass ceiling problem.

Air Force Employee Recognition & Rewards
In FY 2005, Black males make up 9.6% of the

workforce, but only 7% of awards of 1 -9 hours; 8.5%
of awards of 9+ awards; 11.9% of cash awards
between $100 - $500; 8.1% of awards of $501 or more;
and 7.4% of Quality Step Increases (QSI). Other
races face similar in not only FY 2005, but FY 2003/

FY 2004 as well.

Promotions Time In Grade

In FY 2005 minorities are in career ladder
positions, but they in comparison to them in the
workforce, they appear to wait the longest. For

example, Black males make up 9.6% of the

23

workforce, but 11.2% of blacks have been in the same
position for 25 months or longer. Hispanic males
make up 7.5% of the workforce, but have been in the

same position for 25 months or longer.

Reduction In Force (RIF)

A reduction in force occurs when an Air Force
base reduces its civilian workforce. Black males
make up 8.6% of the workforce, but account for
19.4% of RIF. Hispanic males make up 4.9% of the
workforce, but 13% of RIF. A policy of using RIF’s

disproportionately affects minorities.

Average Grade & Average Salary Pay Disparity

A document from the Air Force dated 30
September 1901 (should be 2001) shows the average

white male in a professional capacity was a GS-12

24

(“12.44”) making $65,912. The average Black male,
however, was a GS-11 (11.59) making $56,313 for a
difference of $9,599. Hispanic Males (12.13) make

$61,399 for a difference of $4,513.

The average White female in a professional
was a GS-°10.87 with a salary of $49,229. The
average Black female (10.58) had a salary of $47,590
for a difference of $1,639. The average Hispanic
female (10.57) made $46,368, for a difference of
$2,861. Pay disparities are similar for other racial
groups not only ‘in the Professional categories but
also. Administrative, Technical and _ Clerical

categories. Blue Collar was not provided.

Acquisition Demonstration Project (AcgDemo)

In Lewis, et.al v Mineta, Secretary,

Department of Transportation, EEOC #310-99-

25

5861X and EEOC Appea: #01A40442, (Sept 28, 2005)

Lewis alleges:

... the agency was exempted from many of
the requirements of Title 5 of the United
States Code, Complainant claimed that since
that time, the agency has been using its own
internal staffing ,olicies to make competitive

and noncompetitive selections.

Complainant alleged that use of these
staffing policies has: (had a discriminatory
Impact upon African-American employees;
and b/have reflected a pattern and practice
of discrimination against African-American
employees which have resulted in African-
American employees being dented fair career

advancement.

26

AcqDemo is described as the following:

Title VI of the Civil Service Reform Act,
Title 5 USC 4703, authorizes the Office of
Personnel Management (OPM) to conduct
demonstration projects that experiment with
new and different personnel management

concepts....

The Civilian Acquisition Workforce
Personnel Demonstration Project is designed
to provide an encouraging environment that
promotes the growth 1n all employees and to
improve the local acquisition managers’
ability and authority to manage _ the

acquisition workforce effectively.

Utilizing AcqDemo created disparate
impact among’ minorities. There were no

“safeguards” to determine whether an organization

27

was complying: with federal law _ regarding
affirmative action/equal employment opportunity

(EEO) goals:

under 5 U.S.C. chapter 47 CPM 1s
permitted to waive civil service Jaws and
regulations to enable an agency ...to
conduct demonstration projects...such as
classification and compensation;
assignment, reassignment, or promotion;
and providing incentives. However, no
waivers of law are permitted in the areas of
employee leave, employee benefits, equal
employment opportunity, political activity,
merit system principles, or other prohibited

personnel practices Pg. 1428.

This was a concern before AcqDemo was even

implemented. In the Federal Register Volume 64 No.

5 1/8/99, the Office of Personnel Management (OPM)

issued a 60-day public comment regarding AcqDemo

that ended 26 May 1988. Two of the concerns

centered on Fairness and Leadership/Supervision

Factors:

Fairness. Thirty-eight commenter’s thought
favoritism and the ‘good ole boy’ system would
drive the demonstration and Tlead_ to
inequitable treatment of employees. Several
employees said now managers would now
determine their pay increases and, ultimately,
their retirement annuities. Others said that
monetary awards would be given employees
who do not challenge authority and are part of

a favored clique. Pg 1428.

29

e Leadership/Supervision Factor. Seven
commenter'’s thought this factor did not
emphasize satety and _ health, equal
opportunity (EEO), etc. Some asked how
employees’ movement through the broad
bands related to existing affirmative action

(AA) goals. Pg. 1429.

Under AcqDemo, there is wide latitude on the
use of pay panels and how they are formed. Each
organization at Edwards receives a certain amount of
money. The money is controlled by the pay pool
panel, which consists of the pay pool manager and
the rating officials. The pay pool panel has authority
to distribute the money to employees according to the

rating received. The pay pool panel has the authority

to change the overall rating.

30

However, the majority of the pay pool
managers and pay pool panels are white. Minority
ratings can be lowered so the pay pool panel can give
the majority of the money to each other. It is possible
to have the supervisor be the pay pool manager. It is
also possible for the pay pool panel to get higher
ratings from the supervisor because the supervisor
selects the pay pool panel. The supervisors’ ratings,
according to the Federa/ Register, ...are reviewed by
their peers (.e., by other raters in the same pay

pool)... Pg 1428.

Edwards AFB Personnel Office Created Barriers

Against Class

Not Coding In Applicants Correctly: In order

to compete for any job position, it is important to be
coded in with the correct job title and experience.

The Civilian Personnel Office on EAFB_ uses

31

Standard Automated Inventory and Referral System
(STAIRS) that translates an employee's education
and experience.? Personnel have not been inputting
the information in the system not only for additional
education but for any additional experience that an
employee obtains.

If you are coded incorrectly with your job
title, the system will screen your records and rank
your skills incorrectly, preventing the applicant from
competing for the position. Many class members
have stated that the Personnel Office either inputs

their experience incorrectly, place them in the wrong

2 ,
«Variety of codes which capture pertinent informacion

relative to work experience, education, training,
performance, etc. Once this record is established it as
automatically updated each time a personnel action 1s

generated...

lt

32

job series, or do not put in the experience/education

obtained later.

Defense Civilian Personnel Civilian Defense System
(DPCDS)

DPCDS links all Armed Forces together
(Army, Marines, Air Force, and Army). If an
applicant has a prior military and/or civilian
experience, his/her name is in DPCDS. It is very easy
to look at a person’s race because it is in the system.

The majority of applicants hired by CPO are white.

Manipulation of Underrepresented Statistics

It is unclear as to whether the Affirmative
Employment Plan for the Defendant is accurate. The

Defendant is acting as if they have enough minorities

in certain positions. For example, the complainant

33

obtained an EEO list of all employees that work at

the Communications Squadron (App 32).

There are minorities that are listed as still
employed by the agency. For example, this plaintiff
and her husband, Mr Leonard White, Sr. have been

retired since 2001, but are still on the list in 2003.

Lack of Applicant Flow Has Affected The Class

In a letter to Carlton Hadden, Director of
Federal Operations of the EEOC, the Council of
Federal EEO and Civil Rights Executives stated that

the EEOC would require:

... federal agencies to maintain systems that
track applicant flow data. There are many

federal agencies that still have not

requested approval from the Office of

34

Management and Budget for their applicant

flow form.

Without this form, agencies cannot
determine the effectiveness of their
recruitment trips and cannot decide which
Job fairs are worth going back to and which

ones to drop.

The Air Force confirms this by stating:

The U.S. Air Force does not maintain a
data set for job applicants. The absence of this
data makes it tmpossible to analyze

representation of certain 1n the workforce.

Race and National Origin (RNO) Data.
The requirement to collect RNO applicant data

is a particular challenge on applicants and

current Kedera! employees. Currently we can

35

only capture that data on a_ voluntary
supplemental sheet and not all applicants
submit the data. We are waiting for the
government-wide form for applicant’ self-
Identification that is being worked by the

EEOC task force.

It is impossible to have an effective recruitment
without having applicant tracking. This greatly
affects the class. How do you know if your
recruitment efforts are working if there is no method

to track applicants?

When submitting the required report to the
EEOC, the Defendant ‘lumps’ all the bases together
to make a final report. This report gives the
impression that the Air Force is not discriminatory.
No individual bases are analyzed. For example,

Defendant admits that there are no studies to see if

their policies and practices are discriminatory at

EKAFB:

IVA, iMovie We IBily POU BAVA, Coby wv MIOGULLELY.

Air Force - The Air Force creates no reports, studies or documents
that concem EEO, diversity, affirmative action or the recruiting and hiring of
African-Americans al EAFB. Similarly, the Air Force creates no reports,
studies or documents that provide statistics on the number and/or
percentages of African-American employees at EAFB from October 1, 2000
lo present. Any such reports, studies or documents referenced above created
by the Air Force report information across the entire Air Force.

Question #2: Are district and circuit courts required
to determine Defendant’s outreach to the community

to see if diversity is effective?

The Memorandum to General Counsels: Re:
Post-Adarand Guidance on Affirmative Action in

Federal Gov. 2/29/1996 states:

There are also areas of governmental
activity where, in order to be effective and

have the cooperation and confidence of the

community, an agency must be

representative of the community. This form
of operational need has been recognized in
the law enforcement context by members of
the Supreme Court, and by lower courts,
and focuses on an agency’s ability effectively
to address the needs of the communities it
serves. See Wygant v Jackson Bd. Of Educ.,
476 U.S. at $814 (1986) (Stevens J.

dissenting)

Defendant has not examined the
population of nearby communities to see if they are
representative of the community. The Memo further

states:

af an agency’s statistics were to reveal
underutilization only in its hiring and

promotion of African-Americans, the agency

38

would be justified in focusing lon] remedial

action...

Edwards AFB - Ethnicity and Gender Comparison
(Defendant’s Interrogatory #3 — PEDD0000356)

Numbers of Employees

2003 2004 2005
3,197 3,023 3,018

White Males/White Females

2003 2004 2005
75% 75% 15%

Black Males/Black Females

2003 2004 2005
10% 10% 10%

Using LA Almanac.com, however, shows the 1990
Census and 2000 Census:

Lancaster 1990 2000

White Males/White Females 73.03% 52.44%

Black Males/ Black Females 7.43% 16.01%
Palmdale 1990 2000

White Males/White Females 66.98% 41.00%

39

1990 2000

Black Males/ Black Females 6.41% 14.50%

As white males/females are declining, they are
still represented well on EAFB. Other races,
however, have increased, but minorities are not
represented on EAFB. Using the Census to
determine the demographics of the surrounding
communities is okay to use as stated by NAACP v
City of Bayonne, New Jersey, #96-5848 (34 Circuit,

1998):

While defining the relevant labor market
precisely 1s usually necessary, we can also
look to the general population of the
Bayonne area if it 1s an adequate proxy.
See Wards Cove Packing Co., Inc. v Atonio
(sic), 490 U.S. at 651 n.6, 109 S.Ct at 2121
n. 6, (1989) (citations omitted)(“(Wl]Aere

figures for the gencral population might

40

...accurately reflect the pool of qualified job
applicants,; we have even permitted
plaintiffs to rest their prima facie cases on

such statistics, 104 L.Ed.2d 733

Question #3: Does an error of law affect class

members’ 54 amendment rights?

The DC made errors of law that affected class
members. These errors are an abuse of discretion
that was never fully examined by the appeals court.
Coca-Cola Company v Tropicana Products Inc., 690

F.2d 312 (2"4 Cir. 1982) explains further:

An abuse of discretion may consist of an
error of law, an error of fact, or an error in

the substance or form of the trial court’s

order. For example, the trial judge may
have an erroneous view of the law which

controls the pending suit-a_ statute,

standard or line of cases may be

misapprehended-or the judge may have
misapplied the rules governing the
issuance of injunctive relief The Supreme
Court has viewed an error of law as an
abuse of a trial court’s discretion. United
States v Corrick, 298 U.S. 435, 438, 56

S.Ct. 829, 830, 80 L.Ed. 1263 (1936).

In its Order, the 9th Circuit stated:

The district court properly dismissed
White’s Title VII claim because White did
not fully exhaust Aer administrative

remedies. pg 2

The DC stated by going to federal court

instead of the EEOC caused Plaintiff to not exhaust

her administrative remedies:

42
... there was no conclusion of
administrative proceedings—and thus no
final action — as to Plaintiffs individual
claims, because she never pursued them

through the administrative process. (Pg 2

of DC’s order).

Petitioner tried explaining to both courts the
differences between the EEOC and federal court
procedures. With the EEOC, the moment an
individual complaint changes into a class complaint,
the individual complaint becomes a class complaint.
There is no individual and class complaint as long as

there is a class complaint.*

3 An individual complaint that is filed before or after the class complaint

ts filed and that comes within the definition of the class
claim(s), will not be dismissed but will be subsumed within the
class complaint. If the class complaint 1s dismissed at the

certification stage, the individual complaint may still proceed,

43

With federal court, however, there is both an
individual and class complaint. Petitioner was not
aware of this, and this showed when Defendant
stated that Petitioner mever mentioned her
individual claims (the amended complaint does not
specify what relief White seeks as to her individual
claims. ‘Memorandum of Points and Authorities’, (pg
5) Petitioner thought that her class claims were her
individual claims. The Federal Rules of Civil
Procedure does not indicate the difference, and

Petitioner was using larguage under EEOC court

unless the same or another basis for dismissal applies.
(Memorandum Directive Chapter 8, Complaints of Class
Discris ination III. C.) The word “subsume” means “to bring or

include under.”

44

procedures. The DC claims Petitioner waived her

rights:

the class agent is stating for the record that her case
will not proceed to a hearing as an individual... The
class complaint will be _ vigorously appealed.
... Consistent with her statement of intent, she failed
to submit any letter indicating an intent to pursue
her individual claims. Through her own statement,
and her inaction, Plaintiff effectively waived her
right to pursue her individual claims tn federal court.

Pg 6.

However, the ALJ gave Petitioner two choices:
appeal his decision on the class complaint or proceed
to a hearing on the individual complaint. Petitioner
wrote the EEOC that her case would not proceed to a

hearing as an_ individual. Munoz v Aldridge,

45

Secretary of the U.S. 894 F.2d 1489 (5th Cir) 1990

states:

[T/he purpose of exhaustion is to give the
agency the information it needs _ to
investigate and resolve the dispute between
the employee and the employer. Good faith
effort by the employee to cooperate with the
agency and EEOC and to provide all
relevant, available information is all that
exhaustion requires. [bid., quoting Wade v
Secretary of the Army, 796 F.2d 1369, 1377
(11th Cir. 1986Xrelying on Johnson v

Bergland, suprayemphasis supplied) Ibid.

Martinez v Dept of The U.S. Army #02-50765 (5th Cir

2002) states:

The purpose of exhaustion 1s to

give the agency the information it needs

46

to investigate and resolve the dispute

between the employee and the employer.

‘Good faith effort by the employee
to cooperate with the agency and EEOC
and to provide all relevant, available
Information is all that exhaustion
requires Id (emphasis in original,
citations omitted); accord Randel (v
United States Dept. of the Navy), 157
F.3d at 397 (5 Cir. 1998)) (some cases
suggest ...that we should look to whether
the claimant made a good faith effort to
cooperate with the administrative
agency). Munoz states that abandonment

does not constitute a lack of cooperation

giving rise to a failure to exhaust

47

Once Petitioner received the Final Order from
Defendant (App 35), she was free to file in DC as

stated on page 3:

[f the complainant wishes to file a
civil action, pursuant to 29 CER.
Section 1614.407, the complainant may
be authorized under Title VII, ADEA, or
the Rehabilitation Act to file such action
in an appropriate United States District:
(a) within 90 days of receipt of the final
action on an tndividual or _ class
complaint if no appeal to Ito the

Commission] has been filed...

Once Plaintiff received the final decision, she
had the right to sue in federal court. To say that
Plaintiff abandoned her claims without accepting

Plaintiffs explanation was not construing Plaintiff's

48

words liberally. Once Plaintiff received the final ©
decision, she had the right to pursue her individual

and class claims in federal court per regulation.‘

4 EEOC’s Federal EEO Complaint Processing Procedures
states-The AJ (Administrative Law Judge) transmits his or her
decision to accept or dismiss a class complaint to the class
agent and the agency. The agency must then take final action
by issuing a final order within 40 days of receipt of the Ad's
decision...

In addition, a dismissal must inform the class agent of the right
to appeal to EEOC’s OFO (Office of Federal Operations) or to
file a civil action in federal court. Prior to a request for a
hearing, in lieu of accepting a complaint for investigation, an
agency may dismiss an entire complaint for any of the
following reasons ...(¢filing a complaint which is the basis of a
pending civil action, or which was the basis of a civil action

already decided by a court... 29 CFR Section 1614.107.

Question #4. There is no precedence as to what

happens to EEO individual claims when class claims

are 1n federal court.

The DC implied that Plaintiff had to give EEOC
notice before proceeding to federal court, but that is
not correct according to Ray v Nimmo,
Administrator, U.S. Veterans Admin. 704 F.2d 1480

(11th Cir. 1983) states:

Thus, a plaintiff need not file such a notice
[to the EEOC] prior to proceeding to federal
court when the _ plaintiff has already
proceeded through the EEOC complaint

process.

There is no precedence of what happens to an
EEO individual complaint when there are federal
class claims. In Howard v Evans, EEOC #570-2006-

00176X (April 25, 2006), the agency:

50

...filed an opposition, arguing that an
Administrative Judge does not have the
authority to dismiss or hold a case 1n
abeyance When there are class claims in
federal court] under existing Commission
precedent or the _ regulations or _ the
regulations at 29 C.F-R. Section 1614.

Complainant did not file any response.

Howard did not file any response, but Judge
U

Kravetz placed them in abeyance and stated:
..that individual cases © subsumed in
administrative class complarnt should be held
in abeyance pending a_= decision” on
certification... EEOC MD-110 does_ not
authorize the Commission to hold 1n abeyance

cases when class complaints are filed in

Federal District Court. I note that the EEOC

51

MD-110 is silent on this question, and it does
not expressly preclude holding such cases 1n

abeyance either.

Individual Claims Were Under ‘Pattern Or Practice

Claim’

The Defendant stated that Plaintiffs
individual claims should have been exhausted before
proceeding to federal court. The DC agreed with
Defendant and dismissed individual claims because
they were not exhausted administratively. However,
under Monreal v Potter, #02-1195 (10% Cir. 2004)

that same similar argument was rejected:

Individual claims, the USPS argues,
must have been presented separately to the
USPS 1n individual complaints and exhausted
before they could be presented in a civil

action... Thus, if no class-wide discrimination

52

is found, this section instructs that any
individual complaint by a class agent
subsumed within the class complaint be
processed under the section dealing with

- gndividual complaints.

In this case, however, the individual
complaints were never so processed because
the agency did not make a finding that there

had been no class wide discrimination.

Plaintiffs should not be prejudiced by
the agency's particular disposition of the class
proceeding which, in any event, by its
dismissal of the _ proceeding effectively
exhausted the subsumed individual agent

claims as well...

Plaintiffs clearly made claims’ of

individual discrimination within the class

53

complaint, as indeed they were required to do
in order to demonstrate their qualification to

serve as Class representatives...

Requiring class agents to file both a
class complaint and separate individua/
complaints would be a waste of time when all
allegations can be presented together in a
class complaint. Further, requiring separate
exhaustion of the class allegations and the
class agent's individual allegations that form
the basis of the class allegations could create

conflicting deadlines...

We conclude that individual allegations
of discrimination can be exhausted through a
class administrative complaint and
accordingly reverse... Although the EEOC

regulations do address individual and class

54

complaints in separate actions, see 29 C.FE-R.

Section 1614.10611997)(“‘Individual
complaints”); itd. Section 1614.204 (Class
Complaints”), we find they do not mandate
exclusive presentation of individual claims of

discrimination 1n individual complaints...

We find that, as ‘agentls]who halve]
. filed a class complaint,’ Plaiatiffs were
permitted to assert their individual claims in

this civil action.

Error #2 — Not Appointing Counsel For The Class

The 9t* Circuit stated in its Order:

The district court properly dismissed White's
class action claims because White, proceeding

pro se, was not an adequate class

representative. Pg. 2.

55

Petitioner requested the DC appoint counsel for
the class, but the DC stated that ... because this case
was filed over a year ago, giving Plaintiff more than
enough time to secure counsel, the court finds that

granting a continuance would be futile. Pg. 11.

However, the DC ignored Plaintiffs
explanation in which she stated that she was
unaware of having a need for an attorney. When this
case was before the EEOC, Plaintiff was allowed to
~mresent the class without an attorney. Plaintiff was
unaware of the need for an attorney until Defendant
filed a motion to dismiss on 29 July 2005 and used

case law, which is not in FRCP.

Petitioner began efforts to obtain counsel, but
received news around this time that she had cancer.
Additionally, severe back pain that occurred when

She was working worsened upon _ retirement.

56
Plaintiff presented medical notices to the DC, which

was ignored. (App 45 & 46)

Standard Request For Appointment of Counsel Was

Not Analyzed

The 9 Circuit erred by not determining
whether the DC used any analysis determine
appointment of as stated Marshall v Wouldridge, 958

F.2d 368 (4th Cir. 1992)

The district court’s decision to appoint
counsel to a pro se litigant pursuant to 42
U.S.C. Section 1915(d) is discretionary. The
court’s refusal to appoint counsel may be an
abuse of discretion only in exceptional
circumstances. See Whisenant v Yuam, 739
F.2d 160, 163 (4th Cir. 1984); Cook v Bounds,

518 F.2d 779(4 Cir. 1975)

57

The question of whether exceptional
circumstances exist In any particular case
hinges on characteristics of the claim and the
litigant. Where it is apparent that the pro se
litigant has a colorable claim but lacks the
capacity to present it, the district court
Should appoint counsel to assist him.

Whisenant, 739 F.2d at 163.

Vera v Utah Department of Human Services #02-
4112 (10 Circuit, 2003) states that the litigant does

not have to be destitute:

This court explained that Title VII
provides for the discretionary appointment
of counsel and that 'a litigant need not be
destitute to qualify for appointed counsel."

Vera v. Utah Dep't of Human Servs., 203

F.3d 836, 2000 WL 130717, at **1-2 (10th

58

Cir. Feb. 4, 2000) (unpublished) (quoting

Castner, 979 F.2d at 1421-22).

Instead, we explained, the district court
should consider the four factors identified 1n
Castner to determine whether appointment
of counsel 1s appropriate. Those factors
inclu de (1) plaintiffs financial inability to
afford counsel; (2) plaintiffs diligence in
attempting to secure counsel; (3) the merits
of the allegations of discrimination; and (4)
only in close cases as an ald in exercising
judicial discretion, the "plaintiff's capacity to

present the case without counsel." Castner

979 F.2d at 1421

As stated in Koch v US Navy Public Works #91-

55321(9th Cir. 1992) the:

59

¥4 Cireuit’s rules vary. In employment
discrimination cases, the district court may
appoint counsel Tn such circumstances as the
court may deem just.’ Bradshaw v Zoological
Soc’y of San Diego 662 F.2d 13801, 1318,9 (GF
Cir 1987) The district court must consider
Vthe plaintiffs financial resources; 2) the
efforts made by plaintiff to secure counsel;
and 3)whether the plaintiffs claim has merit.
Id at 1318 (citations omitted)see also Aldable
v Aldabe 616 F.2d 1089, 1093 (#" Cir 1983)
(under 28 U.S.C. Section 19165 (d), the district
court may appoint counsel only ‘f exceptional

circumstances’ exist)

This is a class complaint and Petitioner does not
have the financial resources for the class complaint;

has made an effort to obtain counsel, and claims

60

have merit due to Defendant’s policies/practices
having an adverse impact on minorities. The Court
should have done an analysis to see whether an
appointment of counsel is warranted instead of

summarily dismissing the case.

To deny counsel to a civil rights litigant is
prejudicial according to Bradshaw v Zoological

Society of San Diego, 662 F.2d 1301 (9t» Cir. 1981)

The refusal to appoint an attorney Is
clearly ‘too important to be denied review
and too independent of the cause itself to
require that appellate consideration be
deferred until] the whole case is adjudicated.’
Cohen v Beneficial Industrial Loan Corp.,

3837 U.S. 541, 546 (69 S.Ct. 1221, 1226, 93

L.Ed. 1528)... (1949).

61

Obviously, the refusal to appoint an
attorney 1s collateral to the merits of the
case. The decision to deny the assistance of
an appointed attorney to a laymen
unschooled in the Jaw in an area as
complicated as the civil rights field 1s truly
too important to be deferred until a
resolution on the merits can be had.

There is a_ superficial similarity
between the injury that occurs when a civil
rights plaintiff is erroneously compelled to
proceed through a trial without counsel and
the possible prejudice that may or may not
occur... However, it is not difficult to
imagine—indeecd, it 1s tmpossible to ignore
the irreparable injury that would result from

a refusal to review an order denying a civil

rights litigant appointed counsel...

62

Denial of counsel to civil rights litigants
who are are entitled to representation under
the statute is inherently prejudicial... Were
civil rights litigants thought to be capable to
handling complex litigation properly at trial,
or on appeal, Congress would have thought it
necessary to provide for appointment of
counsel in the first place.

When Plaintiffs are erroneously denied
the assistance of an appointed attorney, the
policy of judicial economy is clearly served by
permitting an appeal from the order denying
plaintiffs motion... the alternative of
denying review would only assure that
Justice will be delayed, or more likely denied,
and guarantee that the resources of the court
and the parties would be senseless dissipated

in the process.

63

Affirmance of the district court’s denial of
appointed counsel may well cause such
plaintiffs to abandon their case rather than
proceed to trial in a obviously hopeless cause.
(Emphasis is Petitioncer’s)

Question #5: When a circuit court affirms district
court’s decision without review, does a lack of review

affect class members’ 54 amendment rights?

Bourdon v Loughren, 386 F.3d 88, (2d Cir. 2004)

states the importance of right of access to the courts:

[The well-established] ‘right of access to
the courts applies beyond criminal litigation to
ensure that all citizens have {t/he right to sue
and defend in the courts.’ Bourdon citing
Chambers v Baltimore & Ohio RR Co. 207 U.S.

142 (1907)

64

Petitioner contends that the 9 Circuit did not
review other than affirming the DC’s decision. The
decision by the DC to not appoint counsel and 9t
Circuit’s affirmation affected the class by when their
claims were dismissed. Petitioner believes that due
to its size, the 9t Circuit did not render justice

effectively:

Speaking to the Alaska Bar Association
Friday... Associate Justice Samuel Alito Jr.
said he supports a split, for practical and

political reasons.

The current ¥* Circuit is simply too
big, he said. It now covers 71 million people,
the largest of any of the circuits. Alito says

the workload was just too high...

Each judge has to decide 500 cases a

year, which Alito said was far beyond the

65

capacity of a human being. The case load of
Judges of the 9% Circuit 1s absolutely
crushing — I dont know how they can
possibly do it,” he said. ‘Due To Its Size, ¥*
Circuit May Not Be Able To Function
Effectively In Rendering Justice; by

JuneauEmpire.com

This is clear in a study by Kevin Clermont &
Stewart Schwab’s Employment Discrimination
Plaintitfs In Federal Court: From Bad To Worse.

Harvard Law & Policy Review:

Our concluding view T[states that/
federal courts disfavor employment
discrimination plaintiffs... Those cases proceed
and terminate less favorably for plaintiffs than

other kinds of cases...

66

Plaintiffs who appeal their losses or
face appeal of their victories again fare
remarkably poorly in circuit courts. The fear
of judicial bias at both the lower and the
appellate court levels may be discouraging
potential employment discrimination
plaintiffs from seeking relief in the federal

courts. Pg. 5

As stated in Lilley v BTM Corporation, 958 F.2d
746, (6 Cir. 1991),
The charge of judicial bias Is a serious
one indeed. The ability of the judiciary to
fulfill its constitutional function rests upon
the maintenance of impartiality.
In its decision, the 9th Circuit assumed that the

DC applied the applicable laws without examining to

see if error was made as stated in Coca-Cola

67

Company v Tropicana Products Inc., 690 F.2d 312

(294 Cir. 1982)

An appellate court discharges its
statutory obligation to review when it
independently examines the relevant factor
considered by the trial court in reaching its
conclusion. See In re Josephson, 218 F.2d

174, 182 (1st Cir. 1954).

The appellate court presupposes that
the trial judge understood and applied the
applicable law and took into account all the
circumstances of the case. Reversal is
warranted only upon a firm conviction that

such presupposition was, In a given case,

misplaced.

68

Question #6: If a Plaintiff files a complaint that ts
similar to a case pending in Supreme Court, 1s the

district court allowed to dismiss it?
The DC stated in its Order (pg. 3):

Plaintiff alleges violations of 5 U.S.C.
Section 2301(b)(1)(Merit Systems
Principles) and 5&5 USC. Section
2302b)‘Prohibited Personnel Practices’.
Both are part of the Civil service Reform Act
(CSRA)?... No private right of action Is

provided by the CSRA...

It was premature to state that CSRA does not
provide an implied private right of action. On 5
December 2005, the Supreme Court heard oral

arguments) in Whitman v_ Department of

Transportation, No. 04-1131:

69

The case presents the question whether
the Civil Service Reform Act (CSRA), which
establishes administrative procedures for
resolving employee complaints, precludes
federal employees from going into federal
court to obtain equitable relief for certain
employment-related constitutional and

statutory violations.

The district court dismissed Whitman's
claims for lack of subject matter jurisdiction,
and the Ninth Circuit affirmed, holding that
the CSRA’s scheme precludes employees
from seeking relief in federal court for

employment-related claims...

On 5 June 2006, the Supreme Court remanded

the case : ack to the 9th Circuit with instructions, but

70

it is not still clear whether a private cause of action

can be used, for the Supreme Court stated:

The Court of Appeals did not decide
whether the petitioner’s allegations state a
prohibited personnel practice’ The proper
course, then, is to remand for the Court of

Appeals to address the matter...

Question 7: There is a private cause of action for

failure to implement an affirmative action plan.
The DC stated in its Order:

While violations of an affirmative action
plan or other regulation may constitute
evidence of discrimination In certain Cases,

such violations do not in and of themselves

give rise to private causes of action... pg. 9

71

Cort factors should be used as stated by
Borough of Ridgefield v New York Susquehanna &

Western Ratlroad, 810 F.2d 57 (3'4 Cir. 1987):

The Supreme Court in Cort v Ash
specified several factors that are relevant to
the issue of whether a statute provides an
implicit private right of action... As the
district court have recognized, however, later
Supreme Court decisions have pinpointed
legislative intent as the key inquiry. See, e.g.
Merrill Lynch, Pierce, Fenner, & Smith v
Curran, 456 U.S. 353, 377-78, 102 S.Ct.
1825, 1838-39, 72 L.Ed.2d 182 (1982);
Middlesex County Sewerage Auth. V
National Sea Clammers Ass'n, 453 U.S. 1,

13, 101 S.Ct 2615, 2622, 69 L.Ed.2d 435

(1981).

72

The four Cort factors are to be used to
discern Congress’ intent. See Texas
Industries, Inc., v Radcliff Materials, Inc.,
451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68
L.Ed.2d 500 (1981). And as this court has
explained in United States v FMC Corp.,
717 F.2d 775, 781 (1983), if the first two
Cort factors fail to Indicate an implied
right of action, the last two cannot by

themselves establish such a right.

Examining The Cort Factors

IIs the plaintiff one of the class for whose especial
benefit the statute was enacted? Petitioner belongs
to a class of minorities affected by the

practices/policies discussed earlier.

Dis there an indication of legislative intent to

provide or deny such a remedy? The Civil Rights Act

73

dealt with unlawful employment practices, which is
stated by Aing v Jackson, Secretary of Housing &

Urban Dev, #06-5149 (U.S.D.C. 2007)

Entitled ‘Unlawful employment practices,’
section e-2 describes numerous actions
qualifying for that label, such as firing or
refusing to hire an individual ‘because of
such individual’s race, color,... 42 USC.
Section 2000e-2(a)(l). Section e-3, entitled
Other unlawtul employment practices,’ lists

additional employer actions that qualify.

In Page v Bolger, Postmaster General. 645 F.2d
227 (4% Cir. 1981), Butzner, Circuit Judge,
dissenting, implied that there is a cause of action

with affirmative employment:

In compliance with the mandate of

Section 717. the Civil Service Commission

74

promulgated regulations in 1972 which
require the head of each government
agency... to establish, maintain, and
carry out a continuing affirmative
program designed to promote equal
opportunity in every aspect of agency
personnel policy and practice in the

... advancement...of employees.

A specific directive of the regulations
provides that the agency shall “(conduct a
continuing campaign to eradicate every form
of prejudice or discrimination based upon
race, color, religion, sex, or national origin,
from the agency's personnel policies and

practices and working conditions...

To not establish, maintain, and carry out an

affirmative employment program as a federal agency

75

is an unlawful employment practice. Earlier in this
brief, Petitioner mentioned how Defendant uses
affirmative employment to discriminate. In Parker v.
Baltimore & Ohio Railroad, 652 F.2d 1012, (D.C. Cir.

1981):

...the plaintiff contended that his
employer's affirmative plan amounted to
unlawful discrimination in Airing - a
characterization that, if correct, would have
placed the employer’s conduct squarely within
the definition of an unlawful employment

practice.

See 422 USC. Section 2000-c
29a)(1)(making it an unlawful employment
practice to ‘refuse to hire... any indiviaual...
because of such individual’s race)... Elsewhere

in the opinion, we described the ambiguities in

76

the case law, explaining that ‘the law of
affirmative action under Title VII’ was in an
unsettled state.’ Id. At 1020. (Emphasis is

Petitioner)

His an implied right of action consistent with the
underlying purposes of the legislative scheme? It is
important to look at legislative history with Congress
as stated by Federal Civilian Employment

Affirmative Action:

In 1969, President Nixon issued an
executive order that required the Federal
agencies to establish Federal Affirmative
Employment Programs to foster equal
employment opportunity for minorities and
women. These programs have had a statutory

basis since 1972.

77

Since 1978, the... EEOC has had
advisory authority or these affirmative
employment functions, including the
responsibility to review and approve annual
equal opportunity plans submitted by each
agency... It has no broad enforcement
authority, and cannot require agencies to

change their mode of operation.

4) is the cause of action one traditionally relegated to
state law, thus making a federal implied right
inappropriate? This is not relegated to state law.
Implementing a plan falls under the federal

government.

Question 8: Is there a private cause of when federal
agency does not adhere to its own regulations

(AFFTC Instruction 36-6, Air Force Reg 40-713,

Uniform Guidelines On Employee Selection Proced

Section 1607.3)?

In Page, it states:

In United States v Caceres, 440 U.S. 741
99 S.T 1465, 1470, 59 L.E-d.2d 733 (197Y...,
the Court said, ‘A court’s duty to enforce an
agency regulation is most evident when
compliance with the regulation 1s mandated

by the Constitution or federal law.’

This principle is applicable to Page's
claim. Thé equal protection component of the
fifth amendment’s due process clause bars
federal agencies from discriminating against
their employees because of race Congress
implemented this constitutional provision by
enacting the Equal Opportunity Act of

IST2..

73

The lineage of the [Personnel] Handbook

can traced from Section 717 of Title VII...

It is also true that the regulation 1s
procedural, but this affords no justification for
refusing to afford Page its protection in his
effort to attain promotion. Procedural rights
are not second class rights. Their enforcement
1s essential to the preservation of substantive
rights. Anti-Fascist Committee v McGrath, 341
U.S. 123, 149-74, 71 s.T. 624, 636°50,95 L.Ed.
817 (1951)(Franturter, -J., concurring)

Conclusion

There should be a cause of action when federal
government does not adhere to its own regulations.
What good are regulations if they are not followed?
The federal government is supposed to be an

example for corporations to follow.

80

The petition for a writ of certiorari should be

granted.

Date: Q fQuhy O ¥

Respectfully Submitted,

% nga HUE TO

Vera ja Representative

App. 1

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FILED
ENTERED CLERK US. UIZTRICT COURT
DISTRICT COURT
OCT 2 8.2005 Ot al,
CENTRAL DISTRtCT OF CALIFOFHWA CENTRALDISTRICT OF curoneaa
DEPUTY DEPUTY
VERGIE H. WHITE, ASE NO. CV 04-9364-NM (Mcx)
Plaintiff,
RDER GRANTING
- EFENDANTS' MOTION TO
ISMISS
JAMES G. ROCHE,,
Secretary,
US ._Dept of Air Force,
Defendant

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

App 2

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I. INTRODUCTION

On November 3, 2004, Vergie White ("Plaintiff"),
appearing pro se, filed this action against James G.
Roche, Secretary, US Department of Air Force
("Defendant"). On May 20, 2005, the court granted
Defendant's motion for a more definite statement, and
on June 9, 2005, Plaintiff filed an amended complaint
("Complaint") alleging class-action claims for race
discrimination in violation of (1) 42. U.S.C. § 1981; (2)
Title VII of the Civil Rights Act of 1964 (42 U.S.C.

§ 2000e et seq.); (3) California's Fair Housing and
Employment Act ("FEHA") (Gov. Code § 12940 et. seq.);
(4) Air Force Flight Test Center ("‘AFFTC") Instruction
36-6, Air Force Regulation 40-713; (5) 5 U.S.C. §
2301(b)(1); (6) 5 U.S.C. § 2302(b); and (7) Uniform
Guidelines on Employee Selection Procedures § 1607.3.
The Complaint also alleged individual claims “similar”
to the class claims. Comp. at 14,411. Before the court
is Defendant's Motion to Dismiss the Complaint
under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim, or Alternatively, to Strike the

Class Action Claims. For the following reasons,

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Defendant's motion to dismiss is GRANTED.

II. FACTS'

In May 2001, Plaintiff retired from her
employment as an Administrative Support Assistant
(Contracts) with the Air Force at Edwards Air Force
Base ("Edwards"). Compl. at 14, 3. At an
unspecified date after her retirement, Plaintiff
filed an Equal Employment Office ("EEO")
complaint (EEOC No. 340- A1-3604X), alleging
discrimination based upon race, sex and color, and
retaliation. Compl. at 2, § 4. The EEO complaint
was subsequently changed to a ciass action, and the
Administrative Law Judge ("All") reviewing the case
denied certification of the class on September 1,
2004. Mot. Ex. 1. Plaintiff wrote a response to the
ALJ on September 3, 2004. Mot. Ex. 2. The decision
was made final on October 13, 2004. Opp. Ex.
Unmarked.

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A. Class Claims

In 1999, federal regulations authorized
agencies to conduct "demonstration projects that
experiment with new and different personnel
management concepts." Compl. at 3,1 11; see also
Office of Personnel Management's "Notice of
approval of a demonstration project final place,"
64 F.R. 1426, 1999 WL 4662 (Jan. 8, 1999).
Edwards implemented the Acquisition
Demonstration Project in 1999. Compl. at 3, J
11. Although the intent of the program was to

provide managers

'The following facts
taken from the Complaint are assumed true for

purposes of this motion only.

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with greater flexibility in assigning duties to
their employees, the result, according to Plaintiff,
was subjective implementation of the program,
with fewer minorities receiving awards and rating
increases, affirmative action goals ignored, and
no monitoring for compliance with other civil
service laws. Compl. at 4, 111 12-15. Plaintiff
alleges that Edwards intentionally created a
"restricted policy" for hiring that excludes
minority groups. Compl. at 5, {| 17-20.
According to Plaintiff, Edwards uses incorrect
numbers in reporting compliance with an
affirmative action employment plan. Compl. at 5-
6, 1ll 21-22. Further, Plaintiff alleges that
Edwards does not adhere to a Federal Equal
Opportunity Recruitment Program because it
fails to actively recruit minorities (Compl. at 6, {
23), and that Edwards inaccurately determines
whether there is under-representation in _ its
minority recruitment (Id. 1124-25). Plaintiff
alleges that many actions taken by Edwards have
affected minorities over the age of 40, who have

had to train younger white workers or see

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younger white workers promoted over them,
despite minority workers' longer service. Compl.
at 7, § 26. Finally, Plaintiff alleges that the
majority of the class has filed EEO complaints

and faced reprisals for their actions. Id. if 27.

Based on these assertions, and after
agreeing that she may not bring claims under 42
U.S.C. § 1981 or under FEHA (Opp. at 6-7),
Plaintiff has six remaining "class claims": (1) the
class was treated differently than comparable
white employees, a situation which "created both
disparate treatment and disparate impact on
the class," and was retaliated against for
protected activities, in violation of Title VII
(Compl. at 7-9, 11 27, 39°41); (2) Edwards failed
to "set up an environment of compliance with"
Air Force Test Center Instruction 36°6, which
requires that EEO principles be integrated into the
personnel management process and considered in
employment decisions (Compl. at 9-10, filf 45°47); (3)
Edwards failed to comply with Aijr’ Force

Regulation 40-713 to eliminate racial barriers

App 7

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regarding promotion and advancement (Compl. at
10, § 50); (4) Edwards failed to recruit minorities
in many positions in violation of 5 U.S.C. §
2301(b)(1) (Compl. at 10, !1 51-53); (5) Edwards
obstructed the class from competing for
employment by controlling employment of
minorities through the Acquisition Demonstration
Program in violation of 5 U.S.C. § 2302(b) (Compl.
at 11, 117 5456); and (6) Edwards' employment
policies and practices created adverse impact on
the hiring and promotion of the class members
in violation of Uniform Guidelines on Employee
Selection Procedures § 1607.3 (Compl. at 11, 11
57-59).

As to these class claims, Plaintiff seeks an
award of $400 million in compensatory and
punitive damages, back pay, front pay, lost
benefits, attorneys' fees, and injunctive relief.
Compl. at 12°13.

B. Individual Claims

Plaintiff alleges that her individual claims
are "similar" to her class allegations. Compl. at

14, { I. Plaintiff alleges she did not receive

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training for her position for many months, and
that an unspecified coworker was paid more,
though they held the same positions.’ Compl. at
14, { 2.

Ill. LEGAL STANDARD

A complaint is dismissed under Rule
12(b)(6) only if it lacks "a cognizable legal theory"
or if there is an “absence of sufficient facts
alleged under aé_ cognizable legal theory."
Balistreri_v. Pacifica Police Dept., 901 F.2d 696,
699

2Some confusion
between the parties was created by the inclusion
in the Complaint of a heading labeled "Individual
Claims — Other Class Members," and a
spreadsheet purporting to identify those claims.
Compl. at 14, 16°17. Briefing has made clear
that this section of the Complaint was intended to

give examples of former employees

App 9

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(9th Cir. 1990). In deciding a Rule 12(b)(6) motion,
the court must construe the complaint in the light
most favorable to the plaintiff and accept all well-
pleaded factual allegations as true, as well as any
reasonable inferences drawn from, them. Broam v.
Brogan, 320 F.3d 1023, 1028 (3th Cir. 2003). "A
complaint should not be dismissed unless it
appears beyond doubt that the plaintiff cannot
prove any set of facts that would" merit relief.
Home Pensi u al 144 v. Or orp.
380 F.3d 1226, 1229 (9th Cir. 2004). In deciding
motions to dismiss, the court is limited to
considering material on the face of the
complaint or its properly submitted
attachments. Arpin v. Santa Clara Valley
Transp. Agency, 261 F.3d 912, 925 (9th Cir.
2001); Campanelli v. Bocicrath, 100 F.3d 1476,
1479 (9th Cir. 1996).

Plaintiff sought to include in the class claims: she

was not, as Defendant originally be/ieved,

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Allegations in a complaint filed pro se are
held to "less stringent standards than formal
pleadings drafted by lawyers." Haines v. Kerner,

404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652

(1972). "[Piro se pleadings are liberally construed,
particulariy where civil rights claims are
involved." Balistreri v. Pacifica Police Dept., 901
F.2d 696, 699 (9th Cir. 1990).

attempting to assert individual claims on their

behalf. Opp. at 11.

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IV. DISCUSSION

A. Plaintiff's Individual Claims

The court turns first to Plaintiff's individual
claims, in order to determine whether she is able
to state a claim such that she could serve as the

class representative. See East Texas Motor

Freight System. Inc. v. Rodriguez, 431 U.S. 395,
403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977) ( "As

this Court has_ repeatedly held, a_ class
representative must be part of the class..." ); Fed.
R. Civ. P. 23(a) ("the claims or defenses of the
representative parties [must be] typical of the
claims or defenses of the class").
1. Waiver

When the AU denied Plaintiff's motion for
class certification, he stated that Plaintiff was
"allowed to proceed with his [sic] individual
complaints of discrimination."' Mot. Ex. 1, at 6.
The ALJ further stated that if the "Complainant
seeks to appeal the instant Decision denying class
certification then. [the class claims are dismissed]

without prejudice to the Complainant's [sic] to

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each renew their intent to proceed on their
individual complaints within thirty (30) days after
of [sic] the receipt of the appeals decision." Mot. Ex.
1 at 23 (emphasis omitted).

The ALJ order then instructed Plaintiff to
submit a letter to specified persons "confirming
his/her intent to proceed on their individual
complaints." Id. Plaintiff's response was to state
unequivocally that she intended to pursue only
her class claims: "The class agent is stating for
the record that her case will not proceed to a
hearing as an individual ... The class complaint
will be vigorously appealed." Mot. Ex. 2, at 2

(em y hasis in original).

The Sept. 1, 2004, ALT Order

disposed of the consolidated putative class complaints

of Plaintiff and her husband, Leonard

App 13

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Consistent with her statement of intent,
she failed to submit any letter indicating an
intent to pursue her individual claims. Through
her own statement, and her inaction, Plaintiff
effectively waived her right to pursue her

individual claims in federal court.

The court construes the language of EEOC
charges "with utmost liberality since they are
made by those unschooled in the technicalities of
formal pleading." B.K.B. v. Maui Police Dept., 276
F.3d 1091, 1100 (9th Cir. 2002). It follows that the

court should construe the language _ of

correspondence by complainants in the course of
EEOC proceedings with the utmost liberality as
well. Plaintiff attempts to explain that her
intention was to inform the ALJ that she
vigorously protested the denial of class
certification, and that she wished to appeal his
decision instead of having a hearing on her

individual claims. Opp. at 6.

However, even reading Plaintiff's statement

"with utmost liberality," the statement admits of

only one conclusion, viz., that Plaintiff did not

App 14

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intend to pursue her individual claims. Plaintiff
made her statement expressly "for the record,"
stating unequivocally that "her case will not
proceed to a hearing as an individual." Mot. Ex.
2, at 2. There was no ambiguity in Plaintiff's
expression of how she intended to proceed.
Furthermore, she was given clear instructions
on how to proceed as to her individual claims,
and she ignored them. She never sent the
required letter, nor did she make any other
effort to pursue her individual claims after the
ALJ decision or the final notice. Accordingly, in
both word and deed, Plaintiff evinced a clear

intent to waive her individual claims.

Moreover, even absent the waiver, Plaintiff

fails to state a claim under any legal theory.’

‘Plaintiff concedes that as a
former federal employee she may not bring a claim
against her former employer under 42 U.S.C. §
19S1 or under FEHA. Opp. at 6-7. Accordingly, those

claims are dismissed.

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1. Title Vil Claims

Plaintiff asserts a cause of action under

Title VII for race-based discrimination. She also
alleges that "the majority of the class,"
presumably including her, have been subject to
retaliation for filing EEO complaints (Compl. at
7, 9 27); such retaliation is also a violation of
Title VII. 42 U.S.C. § 2000e-3(a). A federal
employee seeking review of the disposition of
an administrative complaint for race-based
discrimination in the federal courts is required to
see the administrative process through until she
receives a notice of final action. See Farrell v.
Principi, 366 F.3d 1066, 1067 (9th Cir. 2004) (citing
42 U.S.C. § 2000e-16(c)). Plaintiff has received

notice of final action only on the disposition of the
class discrimination complaint (see Repl. Ex.,
Unmarked), but has not seen her individual

claims through to the same extent.

Plaintiff has not exhausted the
administrative remedies available to her for her

individual claims as required by Title VII.

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Administrative proceedings must be concluded
for there to be "final action" within the meaning
of 42 U.S.C. § 2000e-16. Cosgrove v.

Bolger, 775 F.2d 1078, 1080 (9th Cir. 1985). Here
there was no _ conclusion of administrative
proceedings — and thus no final action — as to
Plaintiffs individual claims, because she never
pursued them through the administrative
process. "When a federal employee ... abandons
[the administrative] process to pursue a remedy
elsewhere, he fails to exhaust his chosen remedy
and thereby forecloses judicial review."
Vinieratos v. United States Dept. of Air Force,
939 F.2d 762,772 (9th Cir. 1991). Having declined

to pursue her individual claims through the

administrative process, Plaintiff may not now

invoke the jurisdiction of this court under Title
VII.

2. Claims Under 5 U.S.C. §§ 2301, 2302
Plaintiff alleges violations of 5 U.S.C. §
2301(b)(1) ("Merit System Principles") and 5
U.S.C. § 2302(b) ("Prohibited Personnel

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Practices"). Both are part of the Civil Service
Reform Act ("CSRA"), which "is a_ detailed,
comprehensive effort to regulate employee-
management relations in the federal
government.” Schrachta v. Curtis, 752 F.2d
1257, 1259 (7th Cir. 1985). No private right of
action is provided by the CSRA, and a host of

federal courts have considered and rejected the
proposition that the CSRA provides an implied
private right of action. See United States v.
Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d
830 (1988); Hastings v. F.A.A., 187 F.3d 938, 940
(8th Cir. 1999) Ryon_v. O'Neill, 894 F.2d 199, 203
(6th Cir.1990); Philii_ _s v. General Services
Admin., 917 F.2d 1297, 1298 (Fed. Cir. 1990);
Tavdus_v. Cisneros, 902 F Supp. 238, 292
(D.Mass.1995) (collecting cases); Veit _v.
Heckler, 746 F.2d 508, 509 (9th Cir. 1984);
Carducci v. Regan, 714 F.2d 171, 172 (D.C.Cir.
1983); Braun v. U.S, 707 F.2d 922, 925 (6th Cir.
1983); Carter v. Kurzejeski, 706 F.2d 835, 840-43
(8th Cir. 1983); Cutts v. Fowler, 692 F.2d 138, 140
(D.C. Cir. 1982).

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These courts have uniformly held that
Congress intended the remedies provided by the
CSRA to be the exclusive means to remedy
violations of the Act. For instance, the merit
systems principles can be used to interpret a law,
rule, or regulation asserted to be violated by a
government agency personnel practice, but they
do not in themselves give Plaintiff a cause of
action. Phillips, 917 F.2d at 1298. Accordingly,
Plaintiff cannot state a claim under either

provision.

3. Violations of Various Regulations

Plaintiff has also filed claims based on
alleged violations Air Force Flight Test Center
Instruction 36-6, Air Force Regulation 40-713,
and Uniform Guidelines on Employee Selection
Procedures § 1607.3. While violations of an
affirmative action plan or other regulation may
constitute evidence of discrimination in certain
cases, such violations do not in and of themselves
give rise to private causes of action. See Gonzalez
v. Police Dept., City of San Jose, Calif. 901 F.2d

App 19

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758, 761 (9th Cir. 1990). Accordingly, Plaintiff's
claims under these regulations must also be

dismissed.

4. Age Discrimination

Plaintiff alleges age discrimination in her
Complaint, but does not list violation of the Age
Discrimination in Employment Act ("ADEA")
under the causes of action upon which she has
filed suit. Compl. at 7, I; 26. Because of the less
stringent standard applied to pro se pleadings,
and because a complaint should not be dismissed
unless it appears beyond doubt that the plaintiff
cannot prove any set of facts that would merit
relief, the court considers whether Plaintiff is able
to state a claim for age discrimination, i.e.,
violation of the ADEA .Unlike claims made under
Title VII, a plaintiff need not exhaust her
administrative remedies prior to filing a civil suit
for violation of the ADEA. Bankston v. White,
345 F.3d 768, 775-77 (9th Cir. 2003). The only

procedural requirement is that a plaintiff notify

App 20

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the Equal Employment Opportunity Commission
("EEOC") at least 30 days prior to filing suit and
within 180 days of the alleged unlawful
occurrence. 29 U.S.C. § 633a(d). Plaintiff does not
claim to have given the EEOC such notice.
Furthermore, Plaintiff retired from her
employment in May 2001; any notification now
would be time-barred. Accordingly, Plaintiff
cannot meet the requirements of § 633a(d), and is
therefore unable to state a claim for violation of
the ADEA.

B. Class Action Claims

As set forth above, Plaintiff has waived her
right to pursue her individual claims in federal
court, and, in any event, fails to state a claim
upon which relief may be granted. Accordingly,
Plaintiff may not act as the class representative
for a class action suit based on these claims. The

class action claims must therefore be dismissed.

Additionally, the class claims must be
dismissed because a class representative cannot
appear pro. se. Class’ action’ suits’ are

representative suits brought on behalf of groups

App 2!

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of persons who are similarly situated but who may
or may not be parties to the suit. Class members
who are not parties to a class action suit
nevertheless are bound by the judgment in the
suit, and due process is satisfied, if the absent
members' interests are adequately represented by
the class members who are present. Crawford V.
Honig, 37 F.3d 485, 487 (9th Cir. 1994), as amended
Jan. 6, 1995."Adequate representation as required
by Federal Rules of Civil Procedure Rule 23(a)(4)
depends [inter alia] on the qualifications of
counsel for the representatives ." Brown v. Ticor
Title Ins. Co., 982 F.2d 386, 390 (9th Cir.1992)
(citation omitted), cert. dismissed, 511 U.S. 117,
114S.Ct. 1359, 128 L.Ed.2d 33 (1994).

Under Rule 23(a)(4), a class

representative must "fairly and adequately

protect the interests of the class." Although the
Ninth Circuit has no precedent directly on point,
every court to have examined the issue agrees
that a class representative appearing pro se lacks
the ability to adequately protect the interests of
the class. See. e.g. 7A Wright, Miller, &

Kayne, Federal Practice and Procedure §

App 22

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1769.1, n. 13 (ed. 2005) (collecting cases for rule
that "class representatives cannot appear pro se");
see also Fymbo v. State Farm Fire and Cas. Co.,
213 F.3d 1320, 1321 (10th Cir. 2000) ("a litigant
may bring his own claims to federal court without
counsel, but not the claims of others"). This is
because the competence of a layman is "clearly too
limited to allow him to risk the rights of others."
Oxendine v. Williams, 509 F.2d 1405, 1407 (4th
Cir. 1975).

Here Plaintiff claims to be "actively
pursuing counsel for this case," and requests that
the court either grant a continuance or appoint
interim counsel. Repl. at 5. Because this case
was filed over a year ago, giving Plaintiff more
than enough time to secure counsel, the court
finds that granting a continuance would be futile.
Moreover, "[t]here is normally ... no constitutional

right to counsel in a civil case." U.S. v. 30.64

Acres of Land. More or Less. Situated in
Klickitat County. State of Wash., 795 F.2d 796,

801 (9th Cir. 1986) (citing Lassiter v. Dept. of
Social Services, 452 U.S. 18, 25-27, 101 S.Ct.

2153, 68 L.Ed.2d 640 (1981)); see also Aldabe v.

App 23

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Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980) (noting
power to appoint counsel to represent indigent civil
litigants is limited to, "exceptional circumstances").
No exceptional circumstances exist in this case
that would warrant the appointment of counsel, and

the court declines to take such action.

Case 05-56816 10/27/2005 Page 22 of 23 DktEntry: None

Accordingly, even if Plaintiff were able to
state a claim upon which relief could be granted as to
her individual claims, the court would be compelled

to dismiss the class claims.

V. CONCLUSION

Based on the foregoing, Defendants' Motion

to Dismiss is GRANTED. IT IS SO ORDERED.

DATED: October 27. 2005 '

Nora M. Manella

United States District Judge

App 24

Case 05-56816 01/26/2009 Page 1 of 4 DktEntry: 6783526

FILED
JAN 28, 2009
MOLLY C. DWYER, CLERK

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

VERGIE H. WHITE, ) No. —- 05-56816

) D.C. No. CV-04-
109364-NM

Plaintiff - Appellant, }
) MEMORANDUM*

V

PETE GEREN, Acting )

Secretary of the United)

States Air Force, )

Defendant — Appellee )}

Appeal from the United States District Court
For the Central District of California

Nora M. Manella, District Court Judge,
Presiding

Submitted January 13, 2009**

Before: OSCANNLAIN, BYBEE, AND
CALLAHAN, Circuit Judges

App 25

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Vergie H. White appeals pro se from the district
court's order dismissing her action alleging race
discrimination against minority employees. at

Edwards Air Force Base

*This disposition is not appropriate from
publication and is not precedent except as provided

by 9c Cir. R. 36-3.

** The panel unanimously finds this case
suitable for decision without oral argument. See Fed.

R. App. P. 34(a)(2)

App 26

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We have jurisdiction under 28 U.S.C. Section
1291. We review de novo an order dismissing for for

failure to state a claim. Ortez v Washington County,

88 F.3d 804, 807 (9t cir. 1996). We affirm.

The district court properly dismissed White’s
Title claim because White did not fully exhaust her
administrative remedies. See Jasch v Potter, 302
F.3d 1092, 1094 (9t» Cir. 2002)(“In order to bring a
Title VII cause of action against a_ federal
government agency in district court, [plaintiff] must

first exhaust his administrative remedies.”)

The district court properly dismissed White’s
class action claims because White, proceeding pro se,
was not an adequate class representative. See Fed.

R. Civ. P. 23(a)(4) (requiring that class

representative be able

App 27

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To “fairly and adequately protect the interests of the
class”); McShane v United States, 366 F. 2d 286, 288
(9% Cir. 1966) (holding that a lay person lacks

authority to appear as an attorney for others. )

White’s remaining contentions are unpersuasive.

AFFIRMED.

/Research

App 28

Case 05-56816 04/20/2009 Page 1 of 2 DktEntry: 688025

FILED
JAN 28, 2009
MOLLY C. DWYER, CLERK

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CiRCUIT

VERGIE H. WHITE, i+) No. - 05-56816
) D.C. No. CV-04-
)09364-NM

Plaintiff - Appellant, ) Central District
) of California
v )
) ORDER
PETE GEREN, Acting )}
Secretary of the United)
States Air Force, )

Defendant — Appellee }

Before: OSCANNLAIN, BYBEE, AND
CALLAHAN, Circuit Judges

The panel has voted to deny the petition for pan :

rehearing.

The full court has been advised of the petition for

App 29

rehearing en banc and not 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 the petition for

rehearing en banc are denied.

No further filings will be accepted in this closed case.

App 30

Vincent White

From : XXXXXX (Name withheld due to privacy)

To: vinelv@qnet.com

Ce: XXXXXX

Sent: Monday, September 01, 2008

Subject: Info

Hi. Sir,

My name is XXXX, a friend of XXXXX. Employed at
Edwards Air Force Base. I am in the same predicament,

and was told by XXXX to contact you.

I can be reached at:

XXXXXX

Emau:

Anything that you can do for me will be appreciated.
Thank you.

NONCLASS

MEMBER

App 31

Mincent White

From : XXXXXX (Name withheld due to privacy)

To: vinelv@gnet.com

Ce: XXXXXX

Sent: Tuesday, March 31, 2009 9:02 a.m.

Subject: Info

I need a good lawyer they are pass me over again. I need a

good one that going answer me right back thank

XXXXX
Fax Number Commercial (661) 277- XXXX
Fax DSN 527-5918

The truth is that he who angers you controls you.

CLASS

MEMBER

App 32

The date of the EEO list is 1 Jan 2003, but the list
is inaccurate. List is available upon request.
Petitioner could not format the list to meet the
requirements of the Supreme Court. There are
individuals that should not be on the list or other

reason as indicated below:

Reason Why List

Name Is Not Accurate
:: F. Altum Retired — 2001, White
2. A. Antoine Listed as White, Is Hispanic

3. E. Bingham Retired 2000 — Black

4. B. Blume Retired — 2001 — White

5. D. Caasi Listed as White — Is Asian
6. G. Campos Retired 2001 — Hispanic

7 N. Cody Left 2002 —- White

8. L. Collins Retired 2002 ~ White

9. J. Davidson Retired 2000 — White

10. D. Delany Left 2001 —- White

11.

12.

E. Deveaux
K. Elquist

E. Emery

C. Gillespie
J. Goodwin
C. Hicks

T. Hughes

C. Johnson
M. Kaiser

S. Keuper

M. Kilpatrick
M. King

K. Mayo

R. Newman
C. Odebralski
J. O'Donnell
J. Petalver

D. Reed

App 33

Left 2002 — Black

Left 2002 — White

Retired 2001 — White

Left 2002 — White

Left 2002 — White

Left 2002 — Black

Listed as White — Is Black
Left 2000 ~ White

Left 2001 — White

Left 2002 — White

Left 2002 — Black

Retired — 2001 — White
Died — 1999- White

Listed as White — Is Hispanic
Left- Transferred White

Died — 1999/2000? White
Listed As White — Is Asian

Left 2002 — White

i

29.

30.

31.

32.

33.

34.

35.

36.

37,

38.

39.

40.

41.

D. Reyes

L. Rodgers
J. Rodriguez
I. Scott

M. Smith

S. Tampon
B. Thim

G. Townsley
D. Wadsworth
J. Watson

L. White Sr.
Vergie White

M. Williams

App 34

Left 2002 — White
Retired - 2001

Left — Transferred
Retired 1999 — White
Left 2002 — Hispanic
Left 2001 — Asian Not White
Retired 2002 - White
Retired 2001 — White
Left - 2002 White

Left — 2000 White
Retired — 2001 — Black

Retired — 2001 — Black

Retired — 2000- Black

App 35

DEPARTMENT OF THE AIR FORCE
Washington, DC 20330

Office Of The General Counsel

Vergie White
PO Box 295
Edwards, CA 93523
Class Agent
And Agency Docket No. EB1M-

01001

James G. Roche, secretary, EFOC No. 340-A1-3604X
Department of the Air Force,

Agency

‘

On September 1, 2004, the Equal Employment
Opportunity Commission (EEOC) issued an order
dismissing the above-captioned class discrimination

complaint; the order was received by the Air Force on

September 7, 2004. This document sets forth,

App 36

pursuant to 29 C.F.R. Section 1614.204(d)(7), the final
agency action in this complaint.

The relevant EEOC regulations require an
agency to take final action on a complaint by issuing a
final order within forty days of receipt of the hearing
file and the Administrative Judge's decision. The
final order must inform the class agent whether or
not the agency will fully implement the decision of
the Administrative Judge. If the final order does not
fully implement the decision of the Administrative
Judge, then the agency must simultaneously file an
appeal and provide notice of the appeal in the final
order. The final order must inform the class agent of
the right to appeal the dismissal of the class
complaint to the EEOC or to file a civil action and
shall include EEOC Form 573, Notice’ of
Appeal/Petition. See generally 29 C.F.R. §

1614.204(d)(7).

App 37

The Administrative Judge dismissed _ the
complaint as a class complaint, concluding that the
"proposed class claim does not meet the requirements
of numerosity, commonality, typicality, and adequacy
of representation." | The Administrative Judge
further concluded that the "claim must be rejected
and Complainant allowed to proceed with his

individual complaints of discrimination."

White _v. Roche, Administrative Judge's Decision,

September 1, 2004, at pg 7.

After our independent review, the Air Force has
determined that it will fully implement the decision of
the Administrative Judge that dismissed this

complaint.

RIGHT TO APPEAL

This final agency action may be appealed to the

Equal Employment Opportunity Commission within

App 38

30 days of receipt. As provided in 29 C.F.R. §
1614.402, for complainants represented by an
attorney of record, the 30-day time period within
which to appeal shall be calculated from the receipt
of this decision by the attorney. In all other instances,
the time within which to appeal shall be calculated

from the complainant's receipt of this decision.

29 C.F.R. § 1614.604 provides:

(b) A document shall be deemed iimely if it is received
or postmarked before the expiration of the applicable
filing period, or, in the absence of a legible postmark,
if it is received by mail within five days of the

expiration of the applicable filing period.

(d) The first day counted shall be the day after the
event from which the time period begins to run and
the last day of the period shall be included, unless it

falls on a Saturday, Sunday or Federal holiday, in

App 39

which case the period shall be extended to include

the next business day.

Appeals must be filed by mail to Director,
Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036, or by personal delivery or
facsimile at 202-663-7022. The appellant should use
EEOC Form 573, Notice of Appeal/Petition and should
indicate what is being appealed.

Facsimile transmission over 10 pages will not
be accepted. The appellant shall furnish a copy of the
appeal to the opposing party at the saine idle it is
ifled with the Commission. In or attached to the °
appeal to the Commission, the appellant must. certify
the date and method by which servite was made on
the opposing party. 29 C.F.R. § 1614.403(b). Any
statement or brief in support of the complainant's

appeal must be submitted to the Commission with one

App 40

copy to the Air Force at AFLSA/CLLO, 1501 Wilson
Blvd., 7*t Floor, Arlington, VA 22209 within 30 days of
filing the Notice of Appeal.

Further guidance regarding appeals may be
found at 29 C.F.R. § 1614.401 et seg. and Chapter 10
of the Commission's Management Directive-110.
These documents are available at the EEOC's Web

site at www.eeoc. gov.

RIGHT TO FILE CIVIL ACITON

If the complainant wishes to file a civil action,
pursuant to 29 C.F.R. § 1614.407, the complainant
may be authorized under Title VII, ADEA, or the
‘Rehabilitation Act to file such action in an appropriate
United States District to file such action in an

appropriate United States District Court:

(a) Within 90 days of receipt of the final action on an
individual or class complaint if no no appeal [to the

Commission] has been filed;

(b) After 180 days from the date of filing an

App 41

individual or class complaint if an appeal has not been

filed and final action has not been taken

(c) Within 90 days of receipt of the Commission's final
decision on appeal

(d) After 180 days from the date of filing an appeal
with the Commission if there have there has been no
final decision by the Commission.

If a civil action is filed, the appropriate
Department or Agency head must be named as the
defendant. Failure to state the NAME AND
OFFICIAL TITLE of the person who is the Agency
head may result in the dismissal of a case. The head
of the Department of the Air Force is the Honorable
James G. Roche, Secretary of the Air Force. Filing a
civil action will terminate Commission processing of

an administrative complaint.

If the complainant decides to file a civil action

under Title VII or under the Rehabilitation Act, and

App 42

if the complainant does not have or cannot afford
the services of an attorney, the complainant may
request that the court appoint an attorney to
represent the complainant and that the court permit
the complainant to file the action without payment
of fees, costs, or other security.

The grant or denial of the request is within
the sole discretion of the court. Filing a request for
an attorney does not extend the time in which to file
civil action. Both the request and the civil action
must be filed within the applicable time lhmit.

13 Oct 2004

/s/

Don W. Fox
Deputy General Counsel

(Fiscal and Administrative Law)

Agency Docket No. EB1M-01001
EEOC No. 340-A1-3604X

App 43

Attachment
EEOC Form 573

CERTIFICATE OF SERVICE

1 hereby certify that I have caused to be deposited in
the United States mail ‘certified, return receipt
requested) a copy of the foregoing FINAL ORDER
sided to the following individuals at the

following address:

Vincent White
2603 West Oldfield Street
Lancaster, CA 93536

Vergie White
PO Box 295
Edwards, CA 93523

Vergie White
45455 Third Street East
Lancaster, CA 93535

Leonard White
45455 Third Street East
Lancaster, CA 93535

App 44

I hereby certify that I have caused to be deposited in
the United States mail a copy of the foregoing FINAL
ORDER to:

Mary P. Pablo

AFFTC/CCD, EEO Office

307 E. Popson Avenue

Building 1400, Wing C, Room 423
Edwards AFB, CA 93524-6630

Michael Z. Salvador

Administrative Judge

U.S. Equal Employment Opportunity Commission
San Diego Area Office

401 B. Street, Fifth Floor, Suite 1550

Los Angeles, CA 92101

This 13t» day of October, 2004

/s/
JACQUELINE A. HOUSE
ASSOCIATE GENERAL COUNSEL

App 45

YOUNG K. LAI, M.D., F.A.C.O.G.

GYNECOLOGY
A MEDICAL CORPORATION
43860 10th STREET WEST. SUITE 204 © LANCASTER. CALIFORNIA 93534

(661) 948-1685

November 28, 2005
To Whom It Concerns:

This is to certify that Virgie White is currently
under my care and_ has been since February of

1999.

She continues with follow up care every three
months. Mrs. White had cancer surgery on February

11, 2004.

If you have any questions regarding this

matter, please phone this office.
Sincerely
/S/

Young K. Lai, M.D.

App 46

wen fi Ee

Nitin A Shah, MD, F.A.C.S., Inc..

F A. A.O.S. - F.1.C.S.. QUALFIED MEDICAL
EVALUATOR. (QME). STATE CF CALIFORNIA

May 19.2005

U.S. Department of Labor Re: White, Vergie
Worker’s Compensation Division Date of Exam: 5/18/05
PO Box 8300, Mailroom 13 Date of Injury: 06/20/00
London, KY 40742-8300 EMP: Edwards Air Force

Base Civil Services

The patient was re- evaluated today for the industrial
injury to the low back region. The patient has
generalized pain with difficulty in walking and
getting around. He has discomfort and weakness of
the upper extremities also. The patient is requesting a
prescription and provision of a powered wheelchair. I
advised the patient I would contact your office.

In my judgment, such a wheelchair would be of

significant help to this individual.

App 47

A follow-up appointment in one month was given.

DECLARATION

In compliance with recent Worker's
Compensation legislation [Libor Code Section 4628
(j) and 5703 (a) (2)1 and Insurance Code Section
556: I declare under penalty of perjury that I have
not violated Labor Code Section 139.3 and that the
information contained in this report and its
attachments, if any, is true and correct to the best of
my knowledge and belief, except as to information

that I have indicated I received from others.

As to that information, I declare under
penalty of perjury that the information accurately
describes the information provided to me and,
except as noted herein, that I believe it to be true.
Furthermore, this evaluation is in compliance with

the guidelines established by the Industrial Medical

App 48

Council or Administrative Director pursuant to
paragraph (5) subdivision (I) of Labor Code Section

139.2 or 5307.6.

Signed by me in the County of Los Angeles this 23nd

day of May 2005

/s/

Nitin A. Shah, M.D.

F.A.C.S., F.LC.S., F.A.A.O.S.

Diplomats, American Board of Orthopaedic Surgery
QUALIFIED MEDICAL EVALUATOR (QME). STATE OF
CALIFORNIA

California License Number A33933

it AS: km

DT: 05/19/05-05/20/05

# 0616

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0808%3A1. Public record. Not legal advice.