Sassower v Field Petitioners Reply Brief

    NO. 92-1405

In The

Supreme Court of. tije Unite* States
October  Term , 1992

ELENA RUTH SASSOWER and DORIS L. SASSOWER,

Petitioners,

KATHERINE M. FIELD, CURT HAEDKE, LILLY HOBBY, 
WILLIAM IOLONARDI, JOANNE IOLONARDI, ROBERT 
RIFKIN, individually, and as Members of the Board of Directors 
of 16 Lake Street Owners, Inc., HALE APARTMENTS, DeSISTO 
MANAGEMENT, INC., 16 LAKE STREET OWNERS, INC., 
ROGER ESPOSITO, individually, and as an officer of 16 Lake 
Street Owners, Inc.

Respondents,

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

PETITIONERS' REPLY BRIEF

DORIS L. SASSOWER 
Petitioner Pro Se 
283 Soundview Avenue 
White Plains, New York 10606 
(914) 997-1677

ELENA RUTH SASSOWER 
Petitioner Pro Se 
16 Lake Street, Apt. 2C 
White Plains, New York 10603 
(914) 997-8105



TA B LE  OF C O N T E N T S

Respondents Have Failed To Meet The Issues Or To
Controvert The Essential Facts Establishing Such Issues............................ 1

Respondents Do Not Deny That The Award Under Inherent 
PowerMasksSubstantiveFee-Shifting.................................................................. 5

Respondents Have Not Shown Compliance With Due Process................. 5

Respondents Do Not Deny That Equitable Considerations
Bar Their Sanction Award Under Inherent Power...............................................7

A. Respondents Do Not Deny That The Sanctions Award  
Constitutes "Unjust Enrichment" And A "Windfall"
To The Insured Defendants......................................................................7

B. Respondents Do Not Deny That Their Uncontroverted 
Litigation Misconduct Constitutes "Unclean Hands"
Disentitling Them To Sanctions And Entitling
Petitioners To Affirmative Relief.............................................................. 8

This Case Mandates Exercise Of The Court's
Power Of Supervision.............................................................................................9

Conclusion.............................................................................................................. 10

Supplemental Appendix:

Excerpt from Petition for Rehearing and 
Suggestion for Rehearing En Banc, 
filed August 27, 1992 (pp. 10-11)



1

Respondents Have Failed To Meet The Issues Or To 
Controvert The Essential Facts Establishing Such Issues

Respondents' Opposing Brief is more significant for what it does not 
say than what it does. Respondents do not address any of the four 
"Questions Presented" by the Petition. Nor do they dispute 
Petitioners' showing that Chambers v. Nasco. I l l  S. Ct. 2123 (1991)— 
the only authority on which the Second Circuit relied—is legally and 
factually inapplicable.

Respondents have not rebutted Petitioners' legally-supported 
arguments that Chambers, unlike the case at bar:

(a) did not involve a case brought under a federal fee- 
shifting statute, such as the Fair Housing Act, and, 
therefore, did not raise the question of congressional 
preemption of inherent sanctioning power [Question 
#1, Point I];

(b) did not involve inherent power being used as a 
back-up to sustain a district court's otherwise 
unsustainable sanction awards under Rule 11 and 
§1927 [Question #2, Point II]

(c) did not involve a due process challenge to 
inherent power in the lower courts, including denial 
of the right to a hearing and entitlement to a jury trial 
[Question #3, Point III];

(d) did not involve equitable considerations of "unjust 
enrichment" and "unclean hands", precluding a fee- 
shifting award under equitable inherent power 
[Question #4, Points IV and V],

Nor have Respondents addressed Petitioners' "Reasons for Granting 
the Writ" (Pet., at 14-16), articulating the compelling constitutional 
and public policy considerations warranting review by this Court- 
reasons far transcending the parties to this litigation.



2

Respondents do not dispute that the Second Circuit's decision uses a 
"standardless" inherent power to override and nullify congressional 
intent and the constitutional balance of powers, as reflected in text- 
based statutes and rules. The fact that the Second Circuit rests on 
Chambers—without the slightest discussion of its applicability to the 
instant case-and that Respondents, likewise, have not come forth with 
any facts bringing this case within Chambers' defined parameters 
shows that Chambers is being interpreted to permit broad expansion 
of inherent power far beyond the narrow and extreme circumstances 
of that case. Such application of Chambers, if allowed to stand, 
permits lower federal courts, in one fell swoop, to undo the work of 
a democratically-elected Congress, as well as a duly-appointed 
Judicial Conference—and to do so, even without passing respect to 
bedrock due process principles.

This case presents the perfect vehicle for this Court's vitally-needed 
clarification of Chambers—a need further borne out by a second case 
wherein certiorari is being sought, Pacific Legal Foundation v. Paul 
Kavfetz. et al.. now pending before this Court under docket number 
92-1544. In Pacific Legal, the Ninth Circuit relied on Chambers to 
disregard available statutory and rule sanctioning provisions and, in 
the absence of "necessity", used inherent power to sanction a non- 
party, public interest foundation. In the instant case, the Second 
Circuit similarly departed from "the rule of necessity" in its use of 
inherent power-failing even to identify any  instance of sanctionable 
conduct by Petitioners which would require inherent power to address. 
Such fact, evident from the very face of the Second Circuit's decision, 
is undisputed by Respondents—who, likewise, fail in their Opposing 
Brief to show a n y  conduct by Petitioners outside the reach of 
available sanctioning provisions.

A reading of the decisions in Pacific Legal and this case suggests that 
inherent power is not being used to punish otherwise unpunishable 
conduct, but rather is being employed to target those who the lower 
courts desire to make the object of sanctions. Taken separately and 
together, these two cases display the ease with which inherent power 
becomes a sword to selectively and invidiously punish persons or 
entities associated with causes to which the court is unsympathetic, if 
not hostile, rather than a shield to protect the integrity of the court.



3

Thus is graphically illustrated the precise situation forecast in Justice 
Kennedy's eloquent dissent to Chambers, in which Chief Justice 
Rehnquist and Justice Souter joined:

"But the same unchecked power also can be applied 
to chill the advocacy of litigants attempting to 
vindicate all other important federal rights." supra, at 
2145.

As stated in Petitioners' pending motion to have the case at bar 
considered with Pacific Legal, both cases, taken together, represent the 
gamut of private enforcement of federal rights: by private individuals, 
as in the instant case, and by public interest groups, as in Pacific 
Legal. In each case, the plaintiffs were acting as "private attorney- 
generals", seeking to further declared national policy, as expressed in 
congressional enactments. The inevitable effect of the Second Circuit 
and Ninth Circuit decisions for which review is sought is to 
discourage private parties from bringing civil rights and other public 
interest litigation.

The significance of Justice Kennedy's concern as to the potentially 
"chilling effect" of Chambers was recognized by the majority of this 
Court which, nonetheless, believed that the risk was minimal because 
the subjective "bad-faith" component was "difficult to establish" 
(supra, at 2134, fn. 11). As an additional safeguard, the majority 
observed that due process mandates would "of course" have to be met 
in making a "bad-faith" finding, as well as in the assessment of fees 
(supra, at 2136).

Yet, both the instant case and Pacific Legal bear out the legitimacy of 
Justice Kennedy's fear that the predicate "bad-faith" finding would, 
without greater definition, become nothing more than a "talismanic 
recitation of the phrase"1. Thus, in the case at bar, there is not a 
shred of evidence in the record to support the "talismanic recitation" 
of "bad-faith" by the District Court (CA-38), thereafter adopted in the

See also 105 Harvard Law Review 357 (1991), noting in its discussion 
of Chambers that "the due process requirement of a finding of 'bad faith' is poorly 
defined at present...".



4

most cursory fashion by the Second Circuit (CA-17)—without the 
slightest concern for the palpable lack of due process underlying such 
"recitation"2. Indeed, the utter irrelevance of "bad faith" to the 
Second Circuit's invocation of inherent power is highlighted by the 
cavalier manner in which the Second Circuit transposed the $50,000 
Rule 11 award-as to which the District Court had failed to identify 
a single offending document-into a $50,000 award under inherent 
power, albeit Rule 11 awards do not require "bad faith"3 (CA-14, 16- 
17). Likewise, the Second Circuit simply ignored the fact that there 
was no finding of "bad-faith" against non-lawyer Elena Sassower-let 
alone any identification of sanctionable conduct by her—when it 
converted an undefined portion of the $42,000 sanction imposed 
against her by the District Court under §1927 into one under inherent 
power (CA-14-17) (Pet., at 20-21).

The foregoing exercise of inherent power against Petitioners must be 
seen in the context of a case which the Second Circuit expressly 
found not to be "meritless" when it rejected the District Court's fee 
award under the Fair Housing Act (CA-13-14). Indeed, the Second 
Circuit went even further by explicitly ruling that there was no finding 
that Petitioners' case had been brought or maintained in bad-faith. As 
a consequence, any sanctionable conduct by Petitioners had to be

Exemplifying the deprivation of due process by the District Court is 
its incorporation of a substantial segment of its April 19, 1990 memorandum 
decision (CA-39-40), which was not the end-product of any due process 
procedure—the magistrate having sua sponte issued a false and defamatory 
decision against Doris Sassower, affording her no prior notice or opportunity to 
be heard as to her documented medical condition. On its face, the 
incorporated memorandum decision demonstrates the District Court's 
assumptions, speculations, prejudgments, and reliance on rank hearsay, 
including newspaper articles, as well as its summary rejection of Doris 
Sassower's request for a hearing on the allegations contained in the magistrate's 
report—all of which she vigorously denied, (see excerpt from the Petition for 
Rehearing, annexed hereto; also Br. 33-39)

Notwithstanding that Rule 11 is judged by an objective standard, 
without regard to subjective intent, stringent standards of specificity and due 
process apply. In Business Guides. Inc, v. Chromatic Communications 
Enterprises. Inc.. 498 U.S. 533 (1991), two evidentiary hearings were held by 
the magistrate, with a third thereafter held in a case involving a Rule 11 award 
of less than $14,000 assessed against a corporation.



5

determined with respect to the specific acts involved—not as a totality.

Respondents Do Not Deny That The Award Under Inherent 
Power Masks Substantive Fee-Shifting

As set forth in the Petition (at 16-19), the Second Circuit's internally 
inconsistent decision shows that what was actually achieved through 
inherent power was a sub silentio repudiation of the American Rule 
against fee-shifting and a judicial interference with the substantive 
social policy reflected in the fee-shifting statute involved, as limited 
by this Court's interpretation in Christiansburg Garment Co. v. EEOC. 
434 U.S. 412 (1978).

Respondents totally ignore the irrefutable fact-documented by the 
very Judgment (CA-20) affirmed by the Second Circuit (CA-20)-that 
the fee-shifting sustained by the Second Circuit was actually the 
substantive fee-shifting of the Fair Housing Act—the various 
Respondents receiving the District Court's Fair Housing Act 
distributive allocations, rather than the differing amounts allotted them 
under its Rule 11 and §1927 awards (Pet., at 9, fn. 7, 19). Nor do 
Respondents challenge Petitioners' argument that once the Second 
Circuit vacated the District Court's Fair Housing Act awards, the 
Judgment based thereon became a nullity (Pet., at 19 fn. 14).

Respondents Have Not Shown Compliance With Due Process

Respondents' attempt to argue that the Second Circuit's decision is in 
keeping with the mandates of due process, recognized by Chambers, 
demonstrates that such mandates need to be more clearly defined4. 
Respondents' affirmative statement that: "...there is absolutely no merit 
to plaintiffs' unsubstantiated allegations of lack of due process" (at p.

The need for clarification of the due process aspects of inherent 
power is further evident from Western Systems v. Ulloa. 958 F.2d 864 (9th 
Cir. 1992) one of the two cases relying on Chambers, cited by Respondents in 
their Opposing Brief. In that case, the Ninth Circuit was compelled to remand 
a sanctions award made under inherent power because the district court did not 
hold an "appropriate hearing" and provide a "proper opportunity...to contest the 
questions of bad faith and the amount of the sanctions." supra, at 873. See 
also footnote 1 hereinabove.



6

13) is indefensible where: (a) Respondents admit that their motions 
for counsel fee/sanctions were not made under inherent power (at p, 
4); (b) the Second Circuit's decision, on its face, fails to identify what 
is being sanctioned under inherent power; (c) Respondents admit that 
no hearing was afforded Petitioners5.

Respondents do not deny that the monetary awards identified under 
Rule 11 and §1927 were not correlated by the District Court to any 
particular defense costs and were arbitrarily arrived at lump sums 
(CA-52-53), fixed in the identical aggregate amount as the equally 
arbitrary award under the Fair Housing Act (CA-50-52). As is 
obvious from the face of its decision, the Second Circuit adopted, 
without question, such completely arbitrary and uncorrelated sums 
(CA-14-18) for the award under inherent power.

Respondents have carefully framed their opposing arguments (at pp. 
10-11) so as to repeat in haec verba the conclusory language of the 
District Court, adopted virtually verbatim by the Second Circuit's 
decision. Such artifice on their part is designed to avoid any direct 
statement by them as to what the factual record actually shows-as 
opposed to what the lower courts say that it shows6.

Thus, for example, Respondents' reference to Petitioners' bias recusal 
motions is couched in the language of the Court's opinion as 
"unsupported" (p. 10). Yet, Respondents do not themselves assert that

Respondents' claim (at p. 13) that no hearing was necessary because "all 
sanctioned conduct was within the proceedings of the District Court" calls for an 
unequivocal statement by this Court that a hearing is required to determine "bad 
faith "-irrespective of whether or not the conduct takes place before the court.

Respondents' conscious knowledge that the record does not support the 
lower court decisions may be assessed against the meticulous documentary 
presentation set forth in the first 40 pages of Petitioners' appellate brief to the 
Circuit Court, filed December 10, 1991, as well as in their Petition for Rehearing, 
filed August 27, 1992. For the convenience of the Court, an illustrative excerpt 
of the Petition for Rehearing is annexed hereto. A full copy of the Petition for 
Rehearing is already on file with this Court as Exhibit "C" to Petitioners' 
December 2, 1992 motion to extend their time to file their "Cert" Petition.



7

such motions were unsupported or that they were in any way 
untruthful or made in bad faith. And they do not address Petitioners' 
due process right to make bias recusal motions—without retaliation by 
way of sanctions under the court's inherent power (Pet., at 22).

Finally, Respondents have not denied that the sua sponte inclusion in 
the decisions of both the District Court and Second Circuit opinions 
of dehors-the-record false and defamatory material, based on 
unadulterated hearsay, was totally violative of due process and the 
Code of Judicial Conduct (Pet., at 8, 10-11, fn. 8).

Respondents Do Not Deny That Equitable Considerations Bar 
Their Sanction Award Under Inherent Power

A. Respondents Do Not Deny That The Sanctions Award Constitutes 
"Unjust Enrichment "And A 'Windfall" To The Insured Defendants

Respondents do not address Petitioners' equitable arguments involving 
the insurance issue—an issue highlighted by Respondents' express 
admission that three of the four defense counsel were fully paid by 
State Farm Insurance Company7 and that the insured defendants paid 
no legal expenses from their "own pocket" (fn. 6). Respondents thus 
concede Petitioners' contention that State Farm is the "real party in 
interest" for any claims based on reimbursement of attorneys' fees and 
expenses (Pet., at 25).

Respondents totally ignore—just as they did before the lower courts— 
the threshold issue raised by Petitioners from the outset that the 
sanction awards are jurisdictionally deficient under FRCP 17(a) and 
19 (Pet., at 27).

With respect to defense counsel for Hale Apartments, who purports 
that it was "not covered by insurance", Petitioners were denied discovery on 
that issue. As shown by Petitioners' Rule 60(b)(3) motion (Aff. B), defense 
counsel for Hale Apartments repeatedly misrepresented and concealed 
throughout the discovery process material information concerning, inter alia, 
the corporate status of Hale Apartments. As a result, the District Court 
erroneously granted summary judgment to Hale Apartments based on a false 
premise that such entity was a corporation, whose "veil" could not be "pierced" 
to charge it with the acts and omissions of its board representative, defendant 
Robert Rifkin (Aff B: 5-8).



Most significantly, Respondents do not deny that following the 
Second Circuit's affirmance of the District Court's $100,000 sanction 
award, defense counsel refused to turn over to the insurer the monies 
ordered to be paid by Petitioners (Pet., 13; CA-30)8. Respondents 
thus confirm that they believe themselves entitled to the benefit of a 
"windfall" award—notwithstanding case law of this Court and the 
Second Circuit proscribing "windfall" awards.

B. Respondents Do Not Deny That Their Uncontroverted Litigation 
Misconduct Constitutes "Unclean Hands" Disentitling Them To 
Sanctions And Entitling Petitioners To Affirmative Relief

The most "extraordinary" aspect of Respondents' Opposing Brief is its 
failure to deny Petitioners' numerous allegations of litigation 
misconduct, including fraud upon the court and Petitioners (Pet., at 4- 
6, 24-28). Nor have they denied the fact that Petitioners' fully- 
documented motion for sanctions and Rule 60(b)(3) relief was 
uncontroverted by Respondents (Pet., at 6, 25-28)9.

Respondents themselves identify the fact that Petitioners supported 
such motion, which was also in opposition to Respondents' then 
pending counsel fee/sanction motions, with:

"...five separate affirmations, a supporting memorandum of law, 
which supplemented...[a] memorandum of law previously filed, 
and three separate compendia of exhibits." (at p. 5)

Petitioners' motion to the Second Court to expand the appellate record 
so as to include this further proof that Respondents' fee applications were not 
made on behalf of the insurer as the "real party in interest" was summarily 
denied (Pet., at 13; CA-26). It may be noted that in Pacific Legal a similar 
motion was made to the Ninth Circuit to correct critical factual errors as to the 
relationship between Pacific Legal Foundation and the plaintiffs in that case, 
on which the Ninth Circuit's decision rested. The Ninth Circuit also rejected 
such motion (Petition of Pacific Legal, p. 6, at fn.l.)

9
For that matter, Respondents have also not denied that Petitioners' 

timely-filed Objections to the closing of discovery were uncontroverted by 
them. (Pet., at 5)



9

Respondents do not deny Petitioners' statements as to the serious 
discovery misconduct committed by Respondents, which was wilful 
and on-going and included the deliberate destruction and suppression 
of evidence critical to proving Petitioners' discrimination case (Pet., 
at 4-5, 27-28).

Nor do Respondents deny that such misconduct as formed the basis 
of Petitioners' extensively documented Rule 60(b)(3) motion 
substantially interfered with and prejudiced Petitioners in proving their 
affirmative case (Pet., at 27-28).

Respondents' admission of "unclean hands" by reason of their failure 
to deny their litigation misconduct before the District Court, the 
Circuit Court, or in their Opposing Brief before this Court warrants 
summary reversal of the sanctions award in their favor, as well as 
summary reversal of the denial of Petitioners' Rule 60(b)(3)/sanctions 
motion.

This Case Mandates Exercise Of The Court's Power of 
Supervision

As set forth in the Petition (at 19, 28), the Second Circuit, by its 
decision, has:

"so far departed from the accepted and usual course of judicial 
proceedings [and has] ...sanctioned such a departure by a lower 
court, as to call for an exercise of this Court's power of 
supervision." (Rule 10.1(a)).

In tone, content, and disposition, the decision sought to be reviewed 
fits within the aforesaid narrow category requiring this Court to 
protect not only the integrity of the courts, but of our Constitution, 
and citizens claiming their due process and equal protection rights 
thereunder.

Moreover, since Petitioners made a specific motion under Rule 
60(b)(3) based upon Respondents' fraud, Petitioners respectfully 
request that this Court, in the exercise of its inherent power to protect 
the integrity of the judicial process and to safeguard the public, Hazel- 
Atlas Glass Co. v. Hartford-Empire Co.. 322 U.S. 238, 246 (1944), 
conduct the "independent investigation" authorized by Universal Oil



10

Products Co. v. Root Refining Co.. 382 U.S. 575, 580 (1946), quoted 
approvingly in Chambers, supra, at 2132, by its own review of 
Petitioners' aforesaid Rule 60(b)(3) motion.

Such uncontroverted motion is dispositive of every issue before this 
Court, including Petitioners' right to summary reversal of the 
Judgment.

Conclusion

The Petition for a Writ of Certiorari should be granted and the 
Judgment below summarily vacated as a nullity and the decision of 
the Second Circuit summarily reversed in all respects. Sanctions and 
new trial relief under Rule 60(b)(3) should be awarded to Petitioners 
as a matter of law.

DORIS L. SASSOWER 
Petitioner Pro Se 
283 Soundview Avenue 
White Plains, New York 10606 
(914) 997-1677

ELENA RUTH SASSOWER 
Petitioner Pro Se 
16 Lake Street, Apt. 2C 
White Plains, New York 10603 
(914) 997-8105

April 12, 1993



SUPPLEMENTAL APPENDIX

EXCERPT FROM PETITIONERS' PETITION FOR REHEARING AND 
SUGGESTION FOR REHEARING EN BANC, FILED AUGUST 27, 1992 
(pp. 10-11)

"The extent to which the District Judge did not meet the standards required for 
an award under inherent authority is highlighted by the only instances in his 
Opinion as showing Plaintiffs' alleged bad-faith, cited in the context of §1927 
sanctions (at A-14-7).

Because the [Second Circuit's] Decision repeats these instances (at 6391-2) to 
support fee-shifting for the totality of the litigation, rather than specific conduct 
to be sanctioned under §1927, they are herein set forth to demonstrate their 
inaptness for sanctions under any theory:

(a) "plaintiffs 'attempted to communicate directly with the 
defendants'" (at 6391): The record shows (AA-47) that the letter 
to Defendants was not sent by either Elena Sassower or Doris 
Sassower, but by John McFadden, the former co-Plaintiff and 
seller of the subject apartment for the stated purpose of 
effectuating a settlement.

[fn. #5 hereto: In fact, the District Judge's 
Opinion acknowledges Mr. McFadden's 
authorship of the letter to Defendants—the 
"impropriety" of which it acknowledged "can be 
overlooked" (A-32).]

(b) "the Magistrate...had recommended dismissal of the 
complaint because of Doris Sassower..." (at 6391-2): The record 
shows (see discussion and record references cited in Br. 33-39) 
that the Magistrate's recommendation and the District Judge's 
Opinion based thereon were factually unjustified, rendered 
without due process, and even without a formal motion for Rule 
37 sanctions ever made by defense counsel. The lack of due 
process precludes its use as a basis for a "bad faith" finding 
against her, a fact recognized by Chambers v. Nasco:



"A court must...comply with the mandates of due 
process...in determining that the requisite bad 
faith exists..., see Roadway Express, supra, at 
767, 100 S.Ct. at 2464." Chambers at 2136

(c) Doris Sassower's "role in assisting another attorney " 'in 
conducting incredibly harassing depositions'", and "'particularly 
shocking and abusive questioning'" (at 6392): Examination of 
the transcript shows this statement to be factually false (Br. 39- 
40), the questions were not improper, and Doris Sassower's entire 
participation consisted of two wholly innocuous one-line 
comments: (1) "She doesn't know when she was bom." (AA-48); 
and (2) "Are you serious?" (AA-59).

As a matter of law, the foregoing three instances do not show bad faith to 
constitute a basis for §1927 sanctions, which is the context in which they were 
cited by the District Judge, nor do they constitute a basis upon which the Panel 
could activate the District Judge's inherent power against either Plaintiff, Roadway 
Express, Inc., at 2465. Indeed, as this Court recognized in Dow Chemical 
Pacific, at 345, such isolated instances, even were they legitimate, are too 
inconsequential to sustain an award representing the totality of three year's 
litigation costs.

Since the District Judge cited no other specific instances of alleged "bad faith", 
the exception to the "American Rule" cannot be sustained on the basis of his 
Opinion—and the Panel cited no basis in the record. Indeed, the Decision does 
not cite the record once."