Sunday, December 14, 2014

Government Response to Motion for Stay

Plaintiff-appellee the United States submits this opposition to the application by non-party appellants Patrick Nee and Levy Messinetti for a stay of the entry of a consent decree agreed to by the parties (and already entered by the district court), while their appeal of a previous matter is pending. The application should be denied. First, Nee and Messinetti seek to challenge an order of the district court from which they never appealed, and accordingly this Court lacks jurisdiction. Second, their challenge rests on a misconstruction of the district court’s order, and a misreading of a passing remark by the district judge, and is accordingly meritless.

19 comments:

  1. In particular, the Review Officer was empowered to require compliance with the injunctions set forth in the 1994 Consent Decree; “to investigate the operations of the District Council, including but not limited to investigating allegations of corruption and wrongdoing by officers, representatives, agents, employees, members, and trustees”; and “to bring disciplinary charges against any District Council officers, representatives, agents, employees, or members.” (R. Doc. 991, at 4 ¶ 5.a). As did the 1994 consent decree, the 2010 stipulation and order reached both the District Council and its constituent local unions. (R. Doc. 991, at 2, 3 ¶ 1.b). Of particular relevance here, the Review Officer was given “review and oversight authority,” including “the authority to review the persons currently

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  2. holding office or employment” within the District Council or its constituent local unions. (R. Doc. 991, at 5-6 ¶¶ 5.b.i.1, 5.b.i.3). In his review, the Review Officer could determine that a matter, among other things, “(c) is contrary to or violates any law or Court order entered in this case; or (d) is contrary to any fiduciary responsibility imposed by 29 U.S.C. § 501 . . . ; or (e) is inconsistent with the objectives of this Stipulation and Order.” (R. Doc. 991, at 6 ¶ 5.b.iii). Should he make any of those determinations, the Review Officer could “veto or require the District Council to rescind its action, proposed action, or lack of action.” (R. Doc. 991, at 6 ¶ 5.b.iii). If the Review Officer exercised this power, any “aggrieved person” could seek review of his decision in the district court, under the deferential standard that is applied to final agency action under the Administrative Procedure Act. (R. Doc. 991, at 18 ¶ 11).

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  3. B. The Review Officer’s Action Against Nee and Messinetti As further detailed in the government’s brief to this Court in the prior appeal (No. 12-4883), the Review Officer exercised his veto authority to remove Nee and Messinetti from their positions at Local 157, a constituent union of the District Council, having determined—after giving Nee, Messinetti, and other affected union personnel notice of the potential action and an opportunity to be heard both in writing and in person—that their actions were contrary to their fiduciary obligations, the orders of the district court, and the objectives of the 2010 Case 14-3506, Document 47, 12/11/2014, 1391198, Page4 of 16
    5 stipulation and order. Nee and Messinetti sought review before the district court, which upheld the Review Officer’s actions. United States v. District Council, No. 90 Civ. 5722, 2012 WL 5236577 (S.D.N.Y. Oct. 23, 2012). Nee and Messinetti then appealed to this Court, which vacated the district court’s ruling, and remanded for the district court to determine whether the Review Officer’s veto authority encompassed the authority to remove Nee and Messinetti from their positions. United States v. Nee, 573 F. App’x 37 (2d Cir. 2014). On remand, the district court held that the matter was moot, as Nee’s and Messinetti’s terms of office had expired during the pendency of their appeal, and they had run for and been elected to new offices at Local 157 without any action by the Review Officer to attempt to stop them. (R. Doc. 1569). The district court further held that even if the action were not moot, extrinsic evidence demonstrated that the parties intended in the 2010 stipulation to give the Review Officer the authority to remove officers such as Nee and Messinetti. (R. Doc. 1569). Nee and Messinetti then filed the instant appeal in September 2014

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  4. B. The Review Officer’s Action Against Nee and Messinetti As further detailed in the government’s brief to this Court in the prior appeal (No. 12-4883), the Review Officer exercised his veto authority to remove Nee and Messinetti from their positions at Local 157, a constituent union of the District Council, having determined—after giving Nee, Messinetti, and other affected union personnel notice of the potential action and an opportunity to be heard both in writing and in person—that their actions were contrary to their fiduciary obligations, the orders of the district court, and the objectives of the 2010 Case 14-3506, Document 47, 12/11/2014,

    Bull Shit - Nee & Messentti's actions were consistent with long known past practices afforded to them by the United States Supreme Court.

    As duly 'elected' officers of their Local Union No. 157, both were parties to the government & the Reviw Offiers illegal veto action; and as such they remain parties with standing contrary to the governments bold new assertion here that they are somehow now magically non-parties for he purposes of this appeal.

    Nothing about Nee & Messnetti's actions with regard to a simple office relocation were contrary to their fiduciary obligations, the orders of the district court, and the objectives of the 2010 Case 14-3506, Document 47 as falsely claimed by the government or the review officer and said actions were entirely consistent with past practice per U.S. Supreme Court precedent.

    The government, review officer, district council or the federal district court under a private contract (the consent decree & stipulation & order) has the power or authority to negate U.S. Sup. Ct. precedent or via their second theory that the Administrative Procedures Act (APA) provides such powers to them.

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  5. Nee and Messinetti then appealed to this Court, which vacated the district court’s ruling, and remanded for the district court to determine whether the Review Officer’s veto authority encompassed the authority to remove Nee and Messinetti from their positions. United States v. Nee, 573 F. App’x 37 (2d Cir. 2014). On remand, the district court held that the matter was moot, as Nee’s and Messinetti’s terms of office had expired during the pendency of their appeal, and they had run for and been elected to new offices at Local 157 without any action by the Review Officer to attempt to stop them. (R. Doc. 1569). The district court further held that even if the action were not moot, extrinsic evidence demonstrated that the parties intended in the 2010 stipulation to give the Review Officer the authority to remove officers such as Nee and Messinetti. (R. Doc. 1569). Nee and Messinetti then filed the instant appeal in September 2014

    Berman's ruling was vacated because the government & review officer failed to make a prima facie case at any stage of their action. The claim of mootness is meritless and is nothing more than a distraction and diversion away from the main issue; that being, the abuse of power & authority of the review officer for a personal vendetta against the parties verses any legal or justifiable grounds centered on factual evidence.

    The appeal is also not about 'intent' and this is but another distraction & diversion offered by judge Berman to cover Walsh's ass for for his arbitrary & capricious decision to veto Nee & Messentti for purely personal reasons. Walsh & the government produced not one scintill of evidence to sustain their arguments from start to finish; thus the 'extrinisc evidence' claim is also false.

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  6. In his review, the Review Officer could determine that a matter, among other things, “(c) is contrary to or violates any law or Court order entered in this case; or (d) is contrary to any fiduciary responsibility imposed by 29 U.S.C. § 501 . . . ; or (e) is inconsistent with the objectives of this Stipulation and Order.” (R. Doc. 991, at 6 ¶ 5.b.iii). Should he make any of those determinations, the Review Officer could “veto or require the District Council to rescind its action, proposed action, or lack of action.” (R. Doc. 991, at 6 ¶ 5.b.iii).

    And Walsh and the government proved none of it. Berman's rulings were nothing more than the good ole boy network in play - judges covering for their incompetent buddies, plain & simple!

    Review & oversight authority are clear and plain on their face without further explanation required unless you are inept or have a personal axe to grind which is all this case was from the very begining.

    Lawyers are sworn to uphold the law & judges are sworn to uphold precedent and neither the lawyers or the judge lived up to their oaths in that regard as their clerks and they themsleves all missed the case from the U.S. Supreme Court which is controlling here.

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    Replies
    1. Lawyers are sworn to uphold the law & judges are sworn to uphold precedent and neither the lawyers or the judge lived up to their oaths in that regard

      Aptly then , they " wither on the vine " Jonathan Gruber.

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  7. Nor can Nee and Messinetti establish likelihood of success based on their contention that the District Council has no authority over the affairs of local unions. (Mem. in Support of Injunction or Stay at 9-11). While the local unions are not parties to this action

    eo nomine

    , the local unions have “affiliated [themselves] into an organization known as the District Council,” and the District Council is “the central governing body over and shall have legislative and executive powers on all matters relating to the general interest and welfare of affiliated Local Unions and their members.” District Council By-Laws at 1, 2 ¶ 4.A;

    2



    see also

    Constitution, United Bhd. of Carpenters & Joiners of America, ¶ 26.B (empowering district councils to make applicable laws). More generally, intermediate bodies such as the District Council “supervise

    [ ]”

    the local unions that

    2

    Available at http://www.nycdistrictcouncil.com/data/sites/1/pdf/NYC%20DISTRICT%20COUNCIL%20BYLAW%20DRAFT%20AS%20OF%20AUGUST%205%202011-1.pdf.

    Case 14-3506, Document 47, 12/11/2014, 1391198, Page11 of 16

















    12

    constitute them, and the locals are “subordinate” to the councils.

    Harrington v. Chao

    , 372 F.3d 52, 57 (1st Cir. 2004) (describing relationship of council and local in United Brotherhood of Carpenters);

    see id.

    at 61 n.8 (noting commentator’s view that

    “ ‘

    the district councils of the Carpenters are the real governing and bargaining bodies of the union

    ’ ”

    ).

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  8. While the local unions are not parties to this action eo nomine, the local unions have “affiliated [themselves] into an organization known as the District Council,” and the District Council is “the central governing body over and shall have legislative and executive powers on all matters relating to the general interest and welfare of affiliated Local Unions and their members.” District Council By-Laws at 1, 2 ¶ 4.A;

    2 see also Constitution, United Bhd. of Carpenters & Joiners of America, ¶ 26.B (empowering district councils to make applicable laws).

    On point, the District Council and/or the Local Unions did not make the governeing By-Laws as required by the NLRA; rather, the UBCJA International under an illegal extension of a failed Trusteeship along with the court appointed Review Officer and the United States Department of Justice (D.O.J.) U.S. Attorney's Office (S.D.N.Y.) authored and drafted all of the by-law language and had judge Berman approve them in a closed chambers &illegal behind the scenes power & money grab which by design was meant to shred, negate and eviscerate federal labor law & the Wagner Act (1935); also known as the NLRA which law specifically grants to each individual a one man, one vote authority to designate & elect their own Union Representatives and Officers.

    The government, the review officer and judge Berman all ignored this most basic precept of labor law 101 and instead substituted themselves as the duly elected Union Representatives and Officers by denying standing to any member dare opposing their dictate via autocratice fiat, and illegal abuse of power and discretion and a very substantial denial of the right to due process of law.

    They only parties who have been continually guilty of Hobbs Act racketeering for the past quarter century is in fact the corrupt governemtn officials, lawyers, their appointed hacks and the inept federal district court judges over-seeing this case.

    None of you have the powers so claimed, particularly via a private contract. All of the lawyers involved in these matters should be summarily disbarred fromt he practice of law and then handed criminal indictments and proceed to trial. None of you have the power to usurp the Congressional authority to negate, alter or amend federal labor law or to ignore long known U.S. Sup. Ct. precedent decisions yet over-turned via stare decisis.

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  9. Q: What are the odds in a pro se appeal?
    A: Very poor, but a very few people do win appeals without an attorney. For example, in 2007 in Cincinnati, 124 pro se criminal appeals were filed: 92 were dismissed or motions for late appeal denied; 30 cases were affirmed; and only two were reversed.
    Ultimately, this 1.6 percent reversal rate compares unfavorably with the reversal rate in criminal cases in which attorneys represented the appellants. The overall reversal rate in attorney-represented criminal cases in Cincinnati in 2007 was 13.07 percent (63 out of 482 cases). In short, appeals are not often successful, but the chance of winning on appeal is much greater with attorney representation than without it.
    nee and messenetti should give it up, they have only a 1.6% chance of winning, who are they kidding? If they had a case the council would have stepped in and filed papers and the only papers filed by the council said they thought nee and messenetti were guilty. these two clowns are only fooling themselves.

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  11. excerpt; Glebe v. Frost 574 U.S. [ ] 2014

    Harrington v. Chao has zero application to Nee & Messenetti's appeal as it is one decision in the liberal First Circuit Court of Appeals and it does not accord with United States Supreme Court precedent as again noted below. Said excerpt stems from the left coast loony tunes in the Ninth Circuit Court of Appeals. The First & Ninth being the most liberal whacko courts int he nation & two of Doug McCarron's favorties when he wants home fiedl advantage to push bull shit precedent that he alone creates & applies; albeit, illegally to every other circuit & part of the country wherein he runs his racketeering scams over every state line.

    Bottom line, the 1.6% statistic cited for pro se defendants vs. those represented by attorneys also has no application here. Were that true, the dopes at the US DOJ & SDNY USAO's office whould be fully aware of Chao's limitations & non precedential status.

    Nee & Messentti are doing fine w/o you.
    _________________________________

    Attempting to bridge the gap between Herring and this case, the Ninth Circuit cited two Circuit precedents— United States v. Miguel, 338 F. 3d 995 (CA9 2003), and Conde v. Henry, 198 F. 3d 734 (CA9 2000)—for the proposition that “preventing a defendant from arguing a legitimate defense theory constitutes structural error.” 757
    F. 3d, at 916. As we have repeatedly emphasized, however, circuit precedent does not constitute “clearly established Federal law, as determined by the Supreme Court.”§2254(d)(1); see, e.g., Lopez v. Smith, 574 U. S. ___, ___ (2014) (per curiam) (slip op., at 6). The Ninth Circuit
    4 GLEBE v. FROST
    Per Curiam
    acknowledged this rule, but tried to get past it by claimingthat circuit precedent could “‘help . . . determine what law is “clearly established.”’” 757 F. 3d, at 916, n. 1. But neither Miguel nor Conde arose under AEDPA, so neither purports to reflect the law clearly established by this Court’s holdings. The Ninth Circuit thus had no justification for relying on those decisions. See Parker v. Matthews, 567 U. S. ___, ___ (2012) (per curiam) (slip op., at 13).

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  12. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=488&invol=347

    Sheetmetal workers v. Lynn 488 U.S. 347 (1989)

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