Equal Justice Under The Law?

I was raised by parents who taught me to respect the judicial process. When I felt I had been discriminated against, I used the administrative process and, subsequently, the federal courts to litigate my complaint/lawsuit. I retained one of the top law firms in employment law in Washington, DC. After it was all over, I concluded that the ideal of “equal justice under the law” was a complete fabrication — as only plaintiffs with unlimited financial resources had a chance of winning.

Chief Judge Merrick B. Garland, nominated by President Obama to fill the seat vacated by Justice Antonin Scalia in the Supreme Court of the United States (SCOTUS), was one of the judges who presided over my appeal before the U.S. Court of Appeals for the District of Columbia. Needless to say, I was terribly disappointed by the legal decision that he was a part of. I found it ironic that it was his turn now to feel frustrated at the hands of politics with his SCOTUS nomination. It’s surprising the games that fate plays on all of us. Just when we think that we are invincible, fate exposes us to humbling experiences. With this in mind, I took the opportunity to share my thoughts with him by writing the letter below.

The attorneys representing me were confident that the SCOTUS would grant certiorari in my case. However, the filing would have meant that I would have had to risk another $100,000 – which would not be recoverable if I lost. After considering the five-justice conservative majority at the time, I determined that this would have been an unwise decision.

I’ve always tried to live a life where “honor” occupies a special place in the pantheon of my values and beliefs — that describes what I am made of, and what kind of life I want to live. But as demanding as I’ve been with myself, I expect others to exemplify the same respect that I hold for this core value. When I placed my fate in the judicial process, I expected that the men and women who held my future in their hands would be guided by the highest respect for “honor.” I guess I was too naïve. These men and women let me down, and I will never believe again that plaintiffs – regardless of their socio-economic situation, gender, racial, and ethnic backgrounds – have a fair chance at being judged under the “equal justice under the law” ideal. Only those belonging to the moneyed class have a chance at that ideal. And, it is precisely that miscarriage of justice that will drive away many Americans from believing in the legacy that our Founding Fathers left us. This is what happens when honor has no place in our code of conduct!

We are facing a dangerous time in our history when many Americans have lost faith in the establishment. And when people feel disenfranchised, they make decisions based on anger – which often don’t turn out to be the wisest. They feel betrayed by the promises that establishment figures have made to them – country, honor, duty, hard work and perseverance will take you to the top tiers of society. But when they can’t find justice in federal courts, when federal agencies routinely ignore findings of discrimination, when jobs are outsourced to foreign countries, when the super rich hide vast sums of money in foreign tax havens to avoid paying taxes, the cultural norms of our society lose all their meaning. And, it is the establishment figures that bear all the blame. Their cavalier attitude towards the financial and emotional sacrifices that an employee has to bear when bringing a lawsuit to a federal court could very well trigger a populist uprising against the tyranny of the few.

At the end of the day, it is not the Ivy League degrees, the family pedigrees, the fancy titles, the high salaries, the corner office with a window that determine how we will be remembered. What really counts is that when we face injustice, we garner the moral fortitude to fight back against the system to bring a just outcome. This is what will leave a legacy that will outlast our time spent on this planet. This is what keeps the harmony that binds together all groups in our society

It would be helpful for Chief Judge Merrick B. Garland to remember the words of 17th century English Poet John Donne:

“No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend’s or of thine own were: any man’s death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bells tolls; it tolls for thee.”

I will always love and defend my adopted country – the United States of America, the country that offered me and my family a shelter from Communist Cuba. Nevertheless, I’ve lost faith in the judicial process of my country. What they did to me in the federal courts was simply “unforgivable!”

March 27, 2016

1205 Tuscany Drive

Trinity, Florida 34655

E. Barrett Prettyman

U.S. Court of Appeals for the District of Columbia Circuit & William

B. Bryant Annex

Attn: Chief Judge Merrick B. Garland

333 Constitution Avenue, NW

Washington, DC 20001

Dear Chief Judge Garland,

I’m writing to congratulate you for having President Obama nominate you for a seat in the U.S. Supreme Court.

But, I’m also writing to underscore how difficult it is for someone to reach the pinnacle of his/her profession and to have his/her dreams hijacked by unforeseen circumstances – in your case, by politics; in my case, by a decision rendered by your court.

While I am sure that my name does not ring a bell, I argued a case before you, Judge Tatel and Judge Silberman on April 9, 2012 (Jorge Ponce v. James H. Billington, Librarian, U.S. Library of Congress, No. 11-5117; appeal from the U.S. District Court for the District of Columbia, No. 1:08-cv-01028). The outcome of this appeal left me disenchanted with the judicial process in our country.

When I filed my administrative complaint and subsequent lawsuit, I was a subject-matter expert on civil rights. I had penned multiple decisions on discrimination complaints while working for the U.S. Government Printing Office and the U.S. Treasury Department. I retired in December of 2013 as Director, Policy and Evaluation Division of the Office of Civil Rights at the U.S. Department of Commerce.

I was familiar with the plethora of frivolous complaints that employees file regularly – not because of malice, but because of their lack of familiarity with the law. But, I was certain that my complaint/lawsuit was not frivolous. I had been the first-line supervisor of the African-American selectee for several years, had prepared her annual performance appraisals, and was aware of her limited supervisory experience. I concluded that there was no way that the selectee had more supervisory experience than I did, and the only explanation that I could come up with was that the selecting official (African American) gave her an edge based on the impermissible factor of race. Even the scores that the African American supervisor gave the selectee were tainted by racial bias.

I received a finding of discrimination in my favor by an outside investigator that the U.S. Library of Congress had contracted with – a rarity in the administrative process. Although the U.S. Library of Congress is a legislative agency that is not bound by the U.S. Equal Employment Opportunity Commission (EEOC), it’s useful to look at the rate of findings of discrimination issued by this agency. On a good year for complainants, EEOC issues 5% findings of discrimination, and 3% on a regular basis. So, the fact that I received a finding of discrimination was an uncommon happening, a cause for celebration! And, yet, the U.S. Library of Congress decided to ignore the finding of discrimination. Obviously, the U.S. Library of Congress only adopts no-finding rulings, while rejecting all findings. The reason for this practice is because it could.

The only viable option that I had was to file a lawsuit in the U.S. District Court for the District of Columbia. Considering that I was confident of the merits of my lawsuit, I retained one of the most prominent law firms in DC – Kator, Parks, Weiser & Harris. I was surprised when Judge Rosemary M. Collyer gave the jury an erroneous instruction that required them to rule in my favor if they found that a discriminatory factor was the “only” reason for my non-selection. This instruction was an anomaly, as Title VII of the Civil Rights Act of 1964 stipulates that findings of discrimination are triggered when a discriminatory motive is “one of many” factors” (not the “only” factor) in the decision-making. Naturally, the jury did not rule in my favor.

I appealed the District Court’s decision, as I was not in agreement with the outcome. While I prevailed in overturning the flawed jury instruction that Judge Collyer gave the jury and which she based on the Ginger decision that your Court of Appeals issued, I was not awarded any remedies. The reason? The decision gave Judge Collyer a break by saying that she added a clarifying sentence after her erroneous jury instruction. Rather than providing a clarification, Judge Collyer’s additional sentence confused the jurors even more.

The above logic of the decision makes no sense to me. Appellate judges make a mistake in one of their decisions (Ginger), which causes a district court judge to repeat the mistake and forces the appellate judges to correct their mistake (to prevent further damage to future plaintiffs). However, the appellate judges opt to provide cover for one of their own (the district court judge), and, by doing so, harm the plaintiff that challenged this inequity (by denying him any remedies).

My experience with using the judicial process in the United States has left me disenchanted. The west façade of the U.S. Supreme Court building bears the motto “Equal Justice under the Law.” After using the administrative process and federal courts to litigate my lawsuit, I’ve concluded that there is no way for an average citizen to find equal justice under the law. Only those who are independently wealthy have a chance of getting justice in our courts.

I spent $100,000 in my lawsuit – at a tremendous sacrifice to my family. $100,000 is no pocket change by anyone’s imagination. I think back to my belief that the majority of discrimination complaints/lawsuits are not litigated because of the lack of financial resources by most plaintiffs, and it brings tears to my eyes. And, if those like myself who make the sacrifice are laughed at by our federal courts, then there is no hope that our country will attain the ideals articulated by civil rights champions of the past and present.

I’m originally from Cuba, and I came to the United States at age 11. It saddens me that my experience with the judicial process in the United States is not that much different than the one in Communist Cuba. The only difference is that while the Communist apparatchiks win all the time in the Cuban courts, it is the members of the moneyed class who are the victors in the United States.

Our country is more divided today that it has ever been. And the reason for this divisiveness is that average Americans feel disenfranchised by politicians from both parties. They feel betrayed by establishment figures, and they don’t want to take their disrespect anymore. They are tired of the unfulfilled, empty promises that politicians have made to them in the past. They are underpaid, overwhelmed, discriminated against, and, in many instances, unemployed – not a pretty picture for the survival of our current way of life. When Americans feel disenfranchised, when they feel that no one cares, they act and vote with their hearts, rather than with their minds. And when this happens, people never make the right decisions. They base their decisions and their votes on their anger, which explains the rise of anti-establishment presidential candidates.

To an employee whose job has been outsourced to a foreign country, mention of a trade agreement and the global economy are meaningless abstractions. To me, this unfair decision is a betrayal that has curtailed my dreams – the dream of putting my fate at the hands of the blindfolded Lady Justice. At the end of the day, this decision is not about an abstract legal theory or a footnote in future legal briefs. At the end of the day, this decision is about the crushing of the ideals that I held about America as a place where anyone with hard work and talent can make it.

I am now in the sunset of my life. And, yet, I think every day about the miscarriage of justice at how our federal courts addressed my lawsuit. It makes me lose faith that our country has a bright future ahead. If we continue on this course, we will not be led by the motto that has guided our decisions in good and bad times in the past – “out of many one.” Instead, we will be led by the nefarious motto of “out of many, anarchy.”

I wish you well, and hope that the U.S. Senate will confirm your nomination to the U.S. Supreme Court.

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