Opinion
No. 091468.
April 30, 2010.
Alexander A. Wold, Alexander Wold, P.C., Counsel of Record.
PETITION FOR A WRIT OF CERTIORARI. QUESTIONS PRESENTED FOR REVIEW
After several appeals, the critical remaining issue was post-trial damages from the loss of the plaintiff's 401k fund in this employee contract matter. Post-trial damages were not an issue at the original trial. They only arose as a direct result of the court's many errors. The plaintiff requested a trial on his post-trial damages in order to prove these. To show the court there was good reason to grant his request, he provided documentation of what he did with his current employer's 401k. These show he would have changed 401k funds during the post-trial period. The court denied a hearing and opined, as the Tenth Circuit Court noted, based only on the evidence at the 2003 trial, that there was no evidence he would have changed funds. The court had indisputable documentation to the contrary.
The Court awarded post-trial damages based on speculation. The plaintiff has never had a trial on his post-trial damages.
1) Whether the plaintiff was denied due process by the court's failure to conduct a supplemental trial on post-trial damages?
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW....................... i TABLE OF CONTENTS.................................... ii TABLE OF AUTHORITIES................................. iii TABLE OF APPENDICES.................................. iv OPINIONS BELOW....................................... 1 JURISDICTION......................................... 2 CONSTITUTIONAL PROVISIONS, STATUTES AND POLICIES AT ISSUE................................ 3 STATEMENT OF THE CASE................................ 4 REASONS WHY CERTIORARI SHOULD BE GRANTED.............................................. 7 I. Review Is Warranted Because the Opinions by the Tenth Circuit and the District Court Conflicts with the Plaintiff's Due Process Rights............................................... 7 II. Review Is Warranted Because the Opinion by the Tenth Circuit Conflicts with an Opinion of the Eleventh Circuit...................... 10 CONCLUSION........................................... 13 TABLE OF AUTHORITIES CONSTITUTIONAL PROVISION INVOLVED Fifth CASES Wellborn v. Reynolds Metal Co. 868 F.2D 389 391 th O'Toole v. Northrop Grumman Corp. O'Toole v. Northrop Grumman Corp. O'Toole v. Northrop Grumman Corp. O'Toole v. Northrop Grumman Corp. TABLE OF APPENDICES Table of Contents for Appendix Volume I Table of Contents for Appendix Volume II
Amendment to the United States Constitution......................................... 3 , (11 Cir. 1989),...................... 9 PRIOR APPEALS , 305 F.3d 1222 (10th Cir. 2002)................................ 4 , 2004.C10.0000884..................................... 4 , 499 F.3d 1218 (10th Cir. 2007)................................ 4 , No. 09-2018 (10th Cir. 2010...................................... 6 Extract of O'Toole's Brief-in-chief to the District Court after the 3rd appeal........................... 2 Opinion of the District Court after the 3rd Appeal 7 10th Circuit Opinion for the 4th Appeal.............. 19 10th Circuit Order for the 4th Appeal Denying Rehearing............................................ 35 Current Employer Summary—Emerging Markets Fund................................................. 1 Current Employer Emerging Markets Fund Detail 2 NG Emerging Market Fund Detail....................... 7 Current Employer Bond Fund Detail.................... 13 Current Employer Summary — Bond Fund........... 17OPINIONS BELOW
The opinion and order of the United States District Court of New Mexico, summary judgment in favor of the Defendant, filed on December 18, 2000.
The opinion and order of the United States Court of Appeals for Tenth Circuit, filed on October 21, 2002, finding err and remanding (O'Toole I.
The opinion and order of the United States District Court of New Mexico, filed on June 20, 2003, after the May 2008 trial, finding no breach of contract.
The opinion and order of the United States Court of Appeals for Tenth Circuit, filed on October 21, 2002, finding multiple err including having already found Northrop Grumman breached in O'Toole I and remanding for parsing of all damages (O'Toole II).
The opinion and order of the United States District Court of New Mexico, filed on May 23, 2005.
The opinion and order of the United States Court of Appeals for Tenth Circuit, finding multiple err and remanding, filed on September 19, 2007 (O'Toole III).
The opinion and order of the United States District Court of New Mexico, filed on December 31, 2008, is reprinted in the Appendix hereto, pp. 7-18.
The opinion of the United States Court of Appeals for Tenth Circuit, filed on February 5, 2010, finding multiple err and remanding but not finding for the Plaintiff on the issues relevant to this petition (O'Toole IV), is reprinted in the Appendix hereto, pp. 19-34.
The order of the Tenth Circuit denying a rehearing, filed on March 3, 2010, is reprinted in the Appendix hereto, pp. 35.
JURISDICTION
The judgment of the court of appeals was issued on February 5, 2010, Pet. App. pp. 19-34. Petitioner's timely petition for rehearing was denied on March 3, 2010, Pet. App. p. 35. This Court's jurisdiction is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISIONS, STATUTES AND POLICIES AT ISSUE
Right To Fundamental Fairness
Fifth Amendment to the United States Constitution
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (emphasis added)
STATEMENT OF THE CASE
A. Facts Giving Rise To This Case
Mr. O'Toole was a long-term employee of the Grumman Aerospace Corporation and then, after the merger, Northrop Grumman Corporation (NG). Mr. O'Toole was reassigned from San Diego, CA, to Los Alamos, NM, and was entitled to the relocation benefits of the Grumman policy upon completion of his assignment. NG breached, did not provide the benefits it should have, and did not fully pay what it should have for his relocation.
Mr. O'Toole finally used all of his 401k plan to pay what NG should have paid along with taxes and penalties.
Mr. O'Toole's complaint requested damages for this breach of contract.
B. The District Court And Appellate Court Proceedings
After summary judgment in favor of the defendant and appeal (O'Toole I), a judge trial was held in May 2003 finding no breach of contract.
Mr. O'Toole appealed (O'Toole II) and the 10th Circuit found multiple errors. This second appeal opinion points out that their first appeal opinion (O'Toole I) is the law of the case and that they had found a breach had occurred. So the trial should have been for determination of the damages.
Upon remand, Judge Strom wrote the parties and asked for suggestions on how to proceed. Mr. O'Toole asked for a hearing on the damages. Judge Strom ordered briefs and Mr. O'Toole was awarded damages including amounts for the taxes and penalties on his forced 401k withdrawals. Judge Strom was to also award lost 401k earnings but he said there was not enough evidence to award them.
Mr. O'Toole appealed (O'Toole III) and the 10th found multiple errors. These included not taking the mandatory judicial notice of the NG 401K website with the performance of each of the funds Mr. O'Toole could have chosen, had he still had money left in the 401k, for all of the years of interest.
The District Court was left with determining damages including the lost earnings of the 401k between the time of the 2003 trial and present. To determine the amount of these lost earnings, a determination of what 401k funds Mr. O'Toole would have used since May 2003 had to be made.
The District Court ordered briefs. Mr. O'Toole asked in his May 2008 opening brief for a trial on his post-trial damages. These damages only arose due to the court's mistakes. He discussed documents he provided to show that there was good cause to hold a trial.
Pet. App. I pp. 2-6.
Mr. O'Toole provided these documents to support his arguments on what funds he would have used. These documents included a print out showing what fund Mr. O'Toole used in his current employer's 401k during the post-trial period. He included a printouts of the details of his current employer's fund he used and of the NG 401k fund he said in his brief he would have used during the post-trial period to show they were equivalent. He included reports prepared post-trial from his and NG's accountants that discussed mostly his post-trial damages. A small portion of these reports dealt with pre-trial damages so that a total damage award could be calculated.
Pet. App. II p. 1.
Pet. App. I pp. 4-6 and 7-12.
The District Court denied Mr. O'Toole a hearing without comment.
The District Court, despite both parties arguing to the contrary, opined that there was no evidence that Mr. O'Toole would have changed 401K investment funds. As the Tenth Circuit notes in its opinion, the District Court used only the evidence from trial in May 2003 to form his opinion on what Mr. O'Toole would have done with his 401k investment choices during the post-trial period.
Judge Strom's opinion that there is no evidence that Mr. O'Toole would have changed funds is based only on evidence from the trial. This evidence was available to him and Judge Strom could have reached this opinion after the second appeal but instead opinioned that there was not enough evidence to make any decision. After remand to make a decision while taking mandatory judicial notice of the 401k information on the Defendant's website which he had failed to do, he did not consider this information and based his decision on information only available at trial that in his earlier opinion he failed to find sufficient to make any decision.
The trial court determined there are post-trial damages for lost 401k earnings and made an award for them after denying him his due process right to be heard on his post-trial damages.
Mr. O'Toole appealed (O'Toole IV) and the 10th Circuit found multiple errors. However, it did not find error concerning the denial of a hearing.
Mr. O'Toole's Petition for Reconsideration was denied without comment.
Mr. O'Toole now petitions for a writ of certiorari so that he can be heard on his post-trial damages.
REASONS WHY CERTIORARI SHOULD BE GRANTED
I. Review Is Warranted Because the Opinions by the Tenth Circuit and the District Court Conflicts with the Plaintiff's Due Process Rights.
The Fifth Amendment's guarantee of due process is applicable to actions of the federal government including the judiciary. Civil cases are generally governed by explicit guarantees of procedural rights under the Bill of Rights. Among those rights is the constitutional right to procedural due process, which has been broadly construed to protect the individual so that statutes, regulations, and enforcement actions must ensure that no one is deprived of "life, liberty, or property" without a fair opportunity to affect the judgment or result.
Mr. O'Toole was denied due process. The trial court determined that post-trial damages were due and, using a flawed process, awarded them. The trial court denied Mr. O'Toole's request for a hearing to determine these damages thus denying him a fair opportunity to affect the judgment or result. Instead, the trial court awarded these post-trial damages using evidence admitted to prove only pre-trial damages when relevant evidence was available.
At a basic level, procedural due process is essentially based on the concept of "fundamental fairness." In 1934, the United States Supreme Court held that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental". As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them.
Snyder v. Massachusetts, 291 U.S. 97, 105;, 54 S.Ct. 330; 78 L.Ed. 674 (1934)
Goldberg v. Kelly, 397 U.S. 254, 267; 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)
Mr. O'Toole was denied his fundamental right to be heard on his post-trial damages when the trial court made a decision without conducting a trial on his post-trial damages. This action denied Mr. O'Toole fundamental fairness.
The post-trial damages arose as a result of the trial court's many previous errors in what are now three post-trial appeals. Mr. O'Toole has never been given a trial on these post-trial damages. This is fundamentally unfair and a violation of due process.
The trial court determined there are post-trial damages for lost 401k earnings and has made an award for them. So this was not a matter if damages were due but one concerning what the amount of those damages should be. Mr. O'Toole did not merely ask for a hearing, he provided documents that show there was good reason to hold a hearing. When the court said that there was no evidence that he would have changed 401k funds during the post-trial period, it had before it information that there was evidence available but denied him a hearing to present it. Having found that post-trial damages arising only due to the court's mistakes were due, the court had a constitutional obligation to hear Mr. O'Toole on these damages. By not doing so, it abused its discretion and denied him due process.
The 10th Circuit knew all of this and even had the same indisputable documents the trial court had when it formed its flawed opinion. The 10th Circuit opinion perpetuated the unfair opinion of the trial court that denied due process and was itself lacking fundamental fairness by not remanding for a trial on the post-trial damages.
Review is warranted because the 10th Circuit's opinion is a clear violation of the plaintiff's rights to fundamental fairness and due process.
II. Review Is Warranted Because the Opinion by the Tenth Circuit Conflicts with an Opinion of the Eleventh Circuit.
The Eleventh Circuit, in Welborn v. Reynolds Metals, a case similar to ours, remanded for a hearing on post-trial damages. The 11th Circuit said, "It was simply impossible for plaintiff to be able to prove these post-trial backpay damages at the time of the original trial. The district court erred in refusing to allow plaintiff to present evidence supporting a backpay award for the time period after the original trial until the time of her reinstatement."
868 F.2d 389 (11th Cir. 1989)
Ibid. p. 391
Similarly, post-trial damages in our case were irrelevant as well as impossible to prove. At trial it was not reasonable to expect that there would even be post-trial damages. The matter was expected to end at trial with an award of the pre-trial damages. It was only because of the mistakes the court made that the damages continued to accrue.
The 10th Circuit found no error on the trial court's part concerning the denial of a hearing on the post-trial damages. In fact the 10th Circuit's opinion does not even acknowledge that Mr. O'Toole had limited his request to be heard to just the post-trial period. It is clear the 10th Circuit did not appreciate this important distinction because they discussed how at least some of the new evidence could have been presented at trial but erroneously inferred it was tendered to address pre-trial damages. The 10th Circuit does not address the vast majority of the documents that were only available post-trial, documents that go directly to the question that turned out to be critical whether Mr. O'Toole would have changed funds in the post-trial period.
Pet. App. I p. 26.
The 10th Circuit notes that they had previously remanded, as Mr. O'Toole had appealed, for the court to take the mandatory judicial notice of the NG 401k funds on the NG website. The court made its decision on what fund to use without taking notice of this information but instead only considered evidence from the May 2003 trial to decide on the post-trial damages it awarded.
Pet. App. I p. 26.
Also, the 10th Circuit opinion does not address Mr. O'Toole having told the trial court in his May 2008 brief what fund he would then choose to use. Mr. O'Toole even provided a printout of his current employer's 401k showing that he was actually using the equivalent bond fund. He should have been allowed at least that he would have used that fund from that date onward.
Pet. App. II p. 17 and pp. 13-16.
Further, the 10th Circuit does not address the fact that he told the 10th Circuit in his opening brief to them what fund he would then use from that date onward.
On at least two occasions Mr. O'Toole told the courts prospectively that he would change funds, and the courts ignored him.
Review is warranted because the 10th Circuit's opinion is adverse to that of the 11th Circuit.
CONCLUSION
Based on the foregoing, Petitioner respectfully submits that this Petition for Writ of Certiorari should be granted. The Court may wish to consider summary reversal of the decision of the Tenth Circuit Court of Appeals on the matter of remanding for a trial on post-trial damages.