Smoot Update!
So what is happening in the Smoot Case? Well, basically just more of the same old abuse although some of this gets more bizarre as each day passes. Smoot did timely file his Appeal from the Fourth Circuit Decision to the Supreme Court on November 15th and he has confirmed it was delivered and it has received a docket #. So now he has two Writs sitting at the Supreme Court, the second of which involves whether State Bankruptcy Exemptions (personal injury settlement) can be voided under the guise of the Supremacy Clause. If you thought the 6th Circuit upheld some bad law, this one is even worse.
I previously addressed UTU's disingenious offer to not make Smoot pay the $100 G's in punitive damages if he would just withdraw his 6th Circuit Appeal AND his Supreme Court Writ. While that pitiful offer was quickly rejected, no word on a briefing schedule from the 6th Circuit yet? Why not? Well, It seems our favorite "misbehaving" Judge Petie has yet to rule on Smoot's Motion to file the Appeal In Forma Pauperis ? Now mind you he would not allow testimony from either I or Smoot and both UTU and CSX stipulated that Smoot was in bankruptcy in order that he not have to give any testimony concerning his financial condition! Hmmm, sounds like all the evidence Petie might need to deny his Motion In Forma Pauperis ! Make my day Petie, you can do it!!!
The fact that the 6th Circuit Writ has not been denied yet is causing the UTU and CSXT some concern. But not to worry, because the combined forces of UTU, CSXT, and the US Government Agencies are ever vigilant to insure Arch-Criminal Smoot doesn't get any justice in any forum whatsoever.
While UTU and CSX undoubtedly helped Judge Economus write his specious determination that the Court had no jurisdiction over a 153(q) action and that Smoot's redress lay with the NRAB (the second bite of the apple), they problably didn't expect us to play out the ploy and file with the First Division! This created somewhat of a delimma and I am sure the Organization/Carrier representatives to the First Division knew they could not allow the First Division to respond they had no jurisdiction! If that was the case, Smoot had no redress either in Court or at NRAB, i.e., no appeal process exists! So they cleverly instructed the First Division to treat the Case as any other and give a deadline for submissions to be filed, to wit:
Of course, this is Smoot's ex-parte filing with the First Division and the Case No. is 4764 and 4 submissions are due by the parties by October 6, 2001. Smoot's letter was mailed July 17. While not surprised that we received it, we sought further input from the NMB on this issue by letter dated September 13, 2001 to the Deputy Chief of Staff of NMB, Ms. Benetta Mansfield, to wit:
September 13, 2001
Ms. Benetta Mansfield
Deputy Chief of Staff
National Mediation Board
Re: First Division Case
B 01-1-C-4764; Certified Mail RRR.Dear Ms. Mansfield:
I come to you with a very complex and perplexing question concerning a matter currently listed before the National Railroad Adjustment Board, First Division. By letter of date 17 July 2001, I petitioned referenced entity with a request to resolve an unresolved dispute involving the CSXT with respect to a claim for thirty shares of common stock, as provided for under the clear and unambiguous terms of a collective bargaining agreement. (Letter attached as Exhibit 1)
This claim has already been handled unsuccessfully by the United Transportation Union on or about May 7, 1993, before Public Law Board 3882, Case 155, with Neutral Member Cluster. However, consistent with my rights under the Railway Labor Act, as amended, reference 45 USC 153 q, the matter was progressed to Federal District Court for the Northern District of Ohio.
It was the position of the Federal District Judge, Peter C. Economus, that the Court lacked the jurisdiction to review the matter, though it is clearly set forth in law, and further reinforced before the Court in the attached opinion of the Michael Anne Johnson, Assistant U.S. Attorney for the State of Ohio (Attached as Exhibit 2).
The matter was appealed to the Sixth Circuit Court of Appeals, and said Court let stand the position of the lower court, i.e.,
APlaintiff=s dispute was not satisfactorily resolved by the PLB. Rather than petitioning this Court to vacate the findings of the PLB, he should have pursued his claim with the National Railroad Adjustment Board, following its procedures, as it is, with a few exceptions, the exclusive arbiter of these claims.@I have appealed the matter to the United States Supreme Court, however, consistent with the decision of the trial court, have complied to the extent that I have now listed the matter with the First Division of the NRAB.
At this juncture, I would respectfully request a written legal opinion from your offices concerning what authority, if any, would rest with the First Division of the NRAB to hear this case, prior to expending the time and resources to perfect my written submission to same, which is due on October 6, 2001.
If it is your position that the District Court and the Appeals Court have erred in this change in the law, would you also please advise.
Thanking you in advance for your prompt assistance in this matter, I remain,
Most Sincerely Yours,
Kenneth R. Smoot
ATTACHMENTS
cc: file
While the green card was returned indicating it was received by the NMB on September 20, 2001, no response was forthcoming as we approached the deadline to file our submissions with the First Division. As I was the one who was going to have to write the submission and supply it to the 1st Division, I began attempting to talk with Ms. Mansfield on or about October 1. After several phone calls and one fax of the original letter above, I supplied a second fax copy of Smoot's letter with this cover page to Mr. Roland Watkins:
The afternoon of October 5, I received a call from yet a third employee of NMB asking questions about my recent fax request. I basically told that person that Smoot provided a letter with attachments and that I provided two copies via fax and that it was now too late, i.e., I had to spend the time and money to timely file the submissions with the First Division to arrive today (they are closed Saturday) and that it really didn't matter if anyone answered the letter anymore - end of story! He seemed a bit miffed?
And now - The Rest of the Story - "the bureaucracy reacts?"! Each time I advised employees at the NMB I was faxing another copy of Smoot's original letter, I also advised it was without enclosures. No one ever requested the enclosures? We received this timely (?) if not informational response, to wit:
Ah . . . , thanks a bunch? I guess the NMB never did find the original file they signed for on 9/20 - probably a result of the Anthrax scare? More good news coming soon?
Shitfire - that damn FedEx took my $27 for before 10 am delivery and then blew it? Nah . . ., the records show it was signed for by a B. Kirkland at 9:27 am, i.e., the recept/Frnt desk person on the first floor of the Building at 844 North Rush where the 1st Div. maintains it's offices? Did the UTU/Carrier representatives instruct the NRAB to lose the first one and share two copies each since CSX probably didn't file a timely submission? Inquiring minds want to know? Does anyone think that if the Supreme Court had denied Smoot's Writ he would have even received a second chance to file another submission? Another 4 copies were sent FedEx and the First Division confirmed that they received them on 11/14 signed for by L. Wadley, Guard/Security sta at 8:47 am? I think that first one didn't get there because of the Anthrax scare? When I asked if the CSX met the October 6 original deadline, I was told I can't give you that information! Suffice to say we are to exchange submissions with CSX postmarked before December 1?
Believe me, I can't wait to see the Carrier's submission, if any? Any bets they deal exclusively with "procedural issues", i.e., the First Division has no jurisdiction to hear this case? If they address merits wouldn't that suggest they believe this is a valid forum to rehear this case? Anybody in their right mind believe that after the Supremes deny Smoot's 6th Circuit Writ? Clint calls it the "Chinese Wall Defense"! It's real simple: the District Court had no jurisdiction to hear Smoot's case under 153(q), only the NRAB has "exclusive" jurisdiction. However, once the Supreme Court denies Smoot his right under 153(q) and bad law has been "authorized", then the NRAB has no jurisdiction to hear the case as the case was already heard and has not been remanded under the provisions of 153(q), i.e., "set aside in whole or part, or remanded back to the division"!
Clint's original "Chinese Wall" was simple also: In Smoot v. UTU and CSX, Earley was the UTU "representative" and he did nothing wrong, i.e., Smoot illegally wiretapped Earley and the evidence of his "misbehaving" could not be considered! In Earley v. UTU Executive Board, there was no wiretap and the Ex. Bd. had every right to try Earley for his actions at PLB 3882, with or without the transcript of the Executive Session. Of course, when "da judge" found all members of the Ex. Bd. violated the federal wiretap act after giving undisputed testimony that they never heard the tape or read the transcript, what side could Clint take then? Monty and Sac-C embraced Brother Earley as "their" representative and cut the deal to keep the Executive Board Members from having to admit guilt and pay Earley one million apiece! God . . . , what an inspiring victory for UTU and it's members!!!!!!
Makes "little" difference if bad law prevents future railroad members from successfully challenging corrupt PLB decisions; makes "little" difference if the purpose of the Federal Wiretap Act is changed to protect the privacy of violators of federal law; and makes "little" difference if formerly "exempt" assets can now be voided by creditors to leave those who received a personal injury settlement destitute, the bottom line is UTU, CSXT, and the U.S. Government have maintained the corrupt Railroad Arbitration System in it's current form! Isn't that what we all wanted anyway?
And now - The Rest of the Story II! If and when the Supreme Court rules they will not hear Smoot's 6th Circuit Case, will UTU and CSXT file any papers to prevent the First Division hearing in Chicago? Nope - they got a better plan - one that has been used before! Make Smoot and I spend the money to go to Chicago to allegedly hear the Case! We will be called into the room but the CSXT officers won't be there. The Carrier's representative to the First Division will question our right to be heard and the jurisdiction for the First Division to hear a case that has already been heard at PLB 3882? They will take a quick recess, and then the Referee will agree that there is no jurisdiction to hear the case! Should he not go along with the wishes of the Organization/Carrier Representatives and say he will hear the case, the Carrier representive will call the CSXT officers at a nearby hotel and they will appear within 10 minutes to address the case! Don't "U" just love the games these people play?
Anybody ever read 153(q)? Anybody think when the Carrier and Organization agree, that a neutral ain't necessary? Can anybody imagine an AWARD that states the Organization lost to the Carrier and the only dissenting decision was the "REFEREE"????? Read the Executive Session Transcript! Hell, read why the RLA (Railway Labor Act) was amended and read 29 U.S.C. § 401 et seq. Gee, after "U" have done all that, hang in there and have a nice day!