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No.

14-4328 CV
viM^iiti fflrart of ^pjdb
FOR THE SECOND CffiCUIT

MARCUS ISAIAH WASHINGTON,


Plaintiff-Appellant
V.

WILLIAM MORRIS ENDEAVOR ENTERTAINMENT, LLC; formerly the WILLIAM MORRIS


AGENCY; JEFF MEADE and SARAH WINIARSKI,
Defendants-Appellees
Appeal from the U.S. District Court
for the Southern District of New York
No. 10 Civ. 9647 (PKC) (JCF)

APPELLANT'S MOTION TO RECALL & STAY THE MANDATE PENDING THE FILING &
RESOLTUION OF A PETITION FOR A WRIT OF CERTIORARI WITH THE SUPREME
COURT OF THE UNITED STATES.

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MI. Marcus Isaiah Washington


54 Boerum St. Apt. 6M
Brooklyn, NY 11206
(646) 504-6497
humanrights.areamust(^gmail.com
Pn>J"^ Litigant

I - pro se Appellant Marcus Isaiah Washington - submit this Motion in "good faith" and ask for the Second
Circuit to recall and stay the mandate pending the filing of a petition for a writ of certiorari to the Supreme
Court.'

Procedural History

Procedurally and substantively, this case is one of a kind.^ On December 22, 2010,1 submitted a detailed,
80-page Complaint with the Southern District of New York, alleging claims of systemic disparate treatment,
disparate impact, pre and post-hiring individual treatment and retaliation in violation of Section 1981, Title
VII, NYSHRL and NYCHRL against my fonner employer and oldest talent agency in Hollywood William Morris Agency (now known as William Morris Endeavor Entertaitunent) - and two of the
company's Human Resources personnel, Jeff Meade and Sarah Winiarski (now known as Sarah Van
Hoven).3

On February 25, 2011, William Morris and their coimsel moved to dismiss my complaint, or in the
alternative, sought to compel arbitration pursuant to two mandatory, pre-dispute arbitration agreements I
signed as a condition of employment. On March 21, 2011, I submitted an oppositional Motion, raising
unconscionability arguments based on the company's century-plus pattern and continuing practice of
excluding quaUfied Afiican Americansfi-omits Agent, Coordinator and Agent Trainee positions. On July
20, 2011, Republican appointed federal judge enforced William Morris' arbitration agreement and pursuant
to the "Delegation Provision" contained in the second arbitration agreement I signed, concluded that the
issue of arbitrabihty had to be decided by the arbitrator.
Between September 2011 and June 2012,1 made four attempts to have Castel's July 20, 2011 Stay
Order vacated, but the panel judges Gerard E. Lynch, Peter W. Hall and Denny Chin concluded diat they
^ My petition will be submitted no later than July 29, 2015.
^ The only lawfully appointed arbitrator in this case ~ David L. Gregory of the American Arbitration Association stated throughout his decisions: "In my thirty years as an Arbitrator of Labor & Employment Disputes, this case
presents the most extensive Motion practice that I have encountered" [Arbitrator Gregory Partial Final Award, 3.]
^ I filed a complaint with the EEOC on June 3, 2010. The investigator assigned to my case - Andrea Hahm - did not
conduct an investigation into my complaint. On September 28, 2010,1 received the EEOC's Dismissal and Notice of
Rights letter which concluded that "the EEOC is unable to conclude that the information obtain establishes violations"
of the Civil Rights Act of 1964..

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did not have jurisdiction to decide an interiocutory appeal and denied my appeal as "moot." On June 15,
2012,1 filed a Demand for Arbitration with the American Arbitration Association. After both parties could
not mutually agree on an arbitrator, the AAA appointed David L. Gregory on August 1, 2012. In the 16
months that Arbitrator Gregory presided over the case, he issued three Interim Decisions and on December
17, 2013, he issued his Partial Final Award.
In or around the time Arbitrator David L. Gregory was scheduled to issue his "omnibus fmal
decision," I informed federal judge P. Kevin Castel by letter on February 28, 2014 that I would be filing a
motion which sought his disqualification, and would be addressing the overall "pattem" of "fraud upon the
Court" that attomeys from Loeb & Loeb LLP were engaging in on behalf of William Morris. At first, Castel
endorsed my letter and set a schedule in which the parties were to submit their pleadings. On March 7,
2014, Loeb & Loeb LLP attomey Christian Carbone submitted a letter to Castel stating that Arbitrator
Gregory's Partial Final Award was not a "fmal Award." On March 10, 2014, Castel issued an Order which
told me I could not submit the Motion and that I had to continue arbitrating in "good faith."
On March 17, 2014, I submitted a voluminous, 97-page Fraud Upon the Court Motion, which
sought extraordinary reUef including the disqualification of both federal judges assigned to the case or the
disqualification of attomeys Michael P. Zweig and Christian Carbone of Loeb & Loeb LLP due to "fraud
upon the Court" and "highly unethical and criminal activity.'"* Two days later, Loeb & Loeb LLP filed a
Motion with the American Arbitration Association to hold me in Contempt. On March 27, 2014, Castel
issued an Order refiising to disqualify himself and stated that "[v]iewed as a totality, an objective,
disinterested observer fully informed of the underlying facts would not entertain significant doubt that
justice would be done in this action absent recusal of the undersigned." On April 10, 2014, I submitted a
33-page Motion for Reconsideration, which was nothing more than a condensed version of my March 17,
2014 pleading.

" Pursuant to 12 of the FAA, this Motion was filed within 90 days of Arbitrator David L. Gregory's Partial Final
Award.

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After Timothy K. Lewis dismissed my case with "prejudice and on the merits" and awarded
William Morris $43,707.60 on June 25, 2014,^ the Appellees sought to confirm Lewis' "Final Award" on
July 3, 2014. On July 10, 2014, the Appellees submitted a Motion for Castel to issue a filing injunction
against me. On July 12, 2014,1 submitted a letter to Castel stating that the arguments raised in my March
17, 2014 and April 10, 2014 Motions "diametrically oppose[d] and void[ed] any 'legal' argument put forth
by WME Entertainment and Loeb & Loeb LLP" and that their motions should be denied.
On September 5, 2014, P. Kevin Castel issued his final Order ("Final Order") (Dkt. No. 59). Castel
pretended to resolve the issues raised in my March 17, 2014 Fraud Upon the Court and April 10, 2014
Motion for Reconsideration, condensed my legal arguments into four parts, then denied each one. He stated:
"In opposition to the defendants' motion to confirm the award, Washington provides four arguments
as to why the arbitral award should be set aside. First, Washington argues that Arbitrator Gregory was
improperly removed and, consequently, all of Arbitrator Lewis' orders, including vacating Arbitrator
Gregory's partial award, are void. Second, Washington asserts that Arbitrator Gregory and Arbitrator
Lewis's decisions to enforce the arbitration agreement were in manifest disregard of the law. Third,
Washington argues that the failure to disclose the alleged relationship between opposing counsel
and an AAA employee biased the arbitral proceeding in the defendants' favor. Finally, he asserts that
the opposing counsel has been engaging in a pattem of bad faith litigation warranting their removal
and sanctions."
[PKC Final Order, 14.] He additionally granted William Morris and Loeb & Loeb's July 10, 2014 Motion
for a Filing Injunction, revoked ray in forma pauperis status although my economic circumstances have
only worsened since filing my Complaint with the Southern District of New York in December of 2010 and
prejudiced my appeal by stating that it would not be made in "good faith."
On October 3, 2014, I filed a 54-page Fed. R. Civ. P. 60 Fraud Upon the Court Motion. Although
I knew my efforts were fiitile, this Motion was submitted to "realign the record in the direction of truth"
and explained why all of Castel's legal conclusions were erroneous as a matter of law, and that his decisions
contravened public pohcy. (Dkt. No. 61) If my motion seeking to correct this "miscarriage ofjustice" was
not granted, I asked Castel in the alternative, to restore my IFP status so that I could submit my appeal in
considerable "good faith" to the appellate court. I included an updated, notarized Affidavit detading this
' On July 16, 2014,1 filed a Motion seeking to Modify Lewis' Final Award due to the numerous factual errors and
inaccuracies contained in the Award. On July 22, 2014, he denied my Motion because pursuant to AAA Employment
Rule 40, the "arbitrator [was] not empowered to redetermine the merits" although I simply asked him truthful.

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infonnation as an exhibit to my October 3, 2014 Fed. R. Civ. P. 60 Fraud Upon the Court Motion. On
October 22, 2014, P. Kevin Castel issued a two page Order, denying the entire Motion as being "witiiout
merit" and refusing to restore my in forma pauperis status based on a statement made in the footnote of my
Motion.
On November 21, 2014,1 filed an Expedited Motion to Restore In Forma Pauperis Status, Suspend
Filing Injunction and Remove All Prejudice Pending "Good Faith" Appeal, Or In the Alternative, Vitiate
All Orders Rendered By P. Kevin Castel and the AAA Due to "Fraud Upon the Court" and "Fraud Upon
die Court, By the Court" pursuant to Fed. R. App. P. 8, 24, & 46 and Local Rules 24.1,^ 46.2 and 46.3. The
initial 20-page Motion and 10-page Reply, served as a condensed version of die legal arguments that were
raised in the last three Motions that were submitted to Castel in 2014. At the end of the Introduction to this
Motion, I stated:
Since many of these arguments were ignored by panel judges Gerard E. Lynch, Peter W. Hall, Denny
Chin and the court en banc when I made four attempts to appeal P. Kevin Caste's erroneous July 20,
2011 Stay Order, which erroneously compelled this case into arbitration, I respectfully ask that my case
be transferred and decided by another circuit.If the case is not transferred, I ask that Lynch, Hall and
Chin be disqualified.^ Regardless of who decides any aspect of this appeal, I ask that the fmder of
remain "impartial" and "independent." I also ask the appellate court issue an ethical and objective
judicial opinion which discusses the arguments of bodi parties because this Motion - like the last tiiree
that were submitted to P. Kevin Castel - demonstrates that despite the statements and judgments of P.
Kevin Castel, the American Arbitration Association, Timothy K. Lewis, Loeb & Loeb LLP, Michael
P. Zweig, Christian Carbone, etc., my appeal, if need be submitted, would not be "fiivolous" and would
actually be made in extreme "good faith."'
On March 11, 2015, panel judges Dennis Jacobs, Raymond J. Lohier, Jr. and district judge Laura
Taylor Swain denied my appeal in two sentences, erroneously concluding that my appeal "Iack[ed] an
arguable basis either in law or in fact." Like Castel, the Second Circuit made no mention of my claims of
^ Pursuant to Local Rule 24.1: "A motion for leave to appeal in forma pauperis...must include (1) the affidavit
prescribed by FRAP 24(a)(1), and (2) a statement that identifies the relevant facts and makes a showing of likely merit
as to each issue the appellant intends to present on appeal."
^ Loeb & Loeb LLP attomey Michael P. Zweig sits on the Grievance Committee for the Second Circuit. Zweig is also
admitted in the First, Third, Fourth and Sixth Circuits, so I ask that the case not be transferred to any of these circuits
as well.
* I also ask that Joseph M. McLaughlin, Rosemary S. Pooler and Harrington Parker be disqualified as well (if any are
still active), since a favorable decision in my appeal would also "undermine" their decision to confirm Robert P.
Patterson's January 5, 2005 Final Order in Rowe Entertainment v. William Morris Agency.
' Elsewhere in the Motion, I stated: "Of course, so much more can be said, but I am limited to 20 pages in this Motion.
The arguments discussed above have been expounded upon in the last three Motions that were submitted to P. Kevin
Castel." [pg. 19.]

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"fraud upon the Court" and did not discuss amongst other things, Arbitrator Gregory's decision to admit
evidence that Loeb & Loeb LLP conspired to conceal in a prior racial discrimination case - Rowe
Entertainment v. WiUiam Morris Agency et al. - into the evidence of record in my case.'**

Issuing The Mandate Pursuant to Fed. R. App. P. 41.


"The mandate is die command of the appellate court to the court below to execute the appellate judgment.""
Fed. R. App. P. 41(d)(2)(A) states: "A party may move to stay the mandate pending the filing of a petition
for a writ of certiorari in the Supreme Court. The motion must be served on all parties and must show that
the certiorari petition would present a substantial question and that there is good cause for a stay." On March
25, 2015, I submitted a 15 page Emergency Motion for Reconsideration En Banc, or in the Alternative,
Motion to Stay Mandate Pending the Filiag of a Petition for Writ of Certiorari with the Supreme
Court.(emphasis added)
On April 30, 2015, the Second Circuit en banc denied my Motion for Reconsideration without
reason or explanation, despite my request that an ethical judicial opmion be provided. As reflected in the
title and in two instances throughout my Motion for Reconsideration, 1 stated: "If my appeal is denied
without explanation yet again, I ask the Second Circuit stay the mandate pending the filing of a petition for
a writ of certiorari to the Supreme Court." On May 30, 2015,1 received a letter m the mail from the Second
Chcuit. See Exhibit A. The letter contained a copy of the Mandate, which was dated May 21, 2015.'^

Second Circuit Erred By Concluding Appellant's Appeal "Lack[ed] Arguable Basis


Either In Fact or In Law," Denying Appellant's Motion Twice Without Providing

Between September 2011 and June 2012, I submitted four Motions to the Second Circuit seeking to vacate the
erroneous July 20, 2011 Stay Order of P. Kevin Castel, as well as to seek his disqualification along with Magistrate
Judge James C. Francis. Each appeal was denied and none of the Orders contained more than two paragraphs.
" Steve D. McLamb. Federal Appellate Procedure - Recall of Mandate - Review of Judgments after Rehearing and
Appeal Periods Expire. 24 Vill. L. Rev. 157, 159 (1978).
'^Pursuant to Fed. R. App. P. 27(b), "A party adversely affected by the court's... action may file a motion to reconsider,
vacate, or modify that action." Pursuant to Fed. R. App. P 40(a)(2), a Motion for reconsideration must "state with
particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and
must argue in support of the petition." Pursuant to FRAP 35(a), an en banc hearing is typically not favored unless
"(1) En banc consideration is necessary to secure or maintain uniformity of the court's decisions; or (2) The proceeding
involves a question of exceptional importance." If my appeal is denied without explanation yet again, I ask the Second
Circuit stay the mandate pending the filing of a petition for a writ of certiorari to the Supreme Court. Fed. R. App. P.
41 instmcts parties that the motion "must show that the certiorari petition would present a substantial question and
that there is good cause for a stay."
" The envelope was postmarked May 27, 2015.1 do not receive e-mail updates fi-om PACER.
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An Ethical Judicial Opinion and Issuing Mandate Despite Being Made Aware That
Petition for a Writ of Certiorari Would Be Filed With the Supreme Court.
Since the inception of this case, federal judge P. Kevin Castel has issued five, one-sided Orders and on six
separate occasions, the Second Circuit has denied my appeals without providing one ethical judicial
opinion. As demonstrated throughout my various Motions to the Southern District of New York and the
Second Circuit, my petition for a writ of certiorari will also prove that all of Castel's legal conclusions are
erroneous as both a matter of law and public poUcy, as well as show that the Second Circuit intentionally
flouted the law and engaged in conduct which creates the appearance of impropriety in order to deprive me
of my constitutional and statutory rights under the color of law. In part, die petition will show:
[P. Kevin Castel Erred By Determining Arbitrator Partial Final Award Was Not Reviewable] In
Castel's September 5,2014 Order, he concluded that Gregory's Partial Final Award was not reviewable by
relying oidy on one case - Michaels v. Mariforum Shipping, S.A.. 624 F.2d 411, 414 (2d Cir. 1980).'''
James Gaitis has published two informative and extremely insightfiil law articles on this topic,and it is
without question that Michaels is not controlling or applicable to the Award issued by Arbitrator Gregory.
It is well setded that "non-fmal arbitral decisions" and "interlocutory arbitral awards" (e.g.,
"Interim Decisions" and "Partial Final Awards") have been deemed reviewable by the federal court since
Michaels' decision in 1980. See e.g., Trade & Transport, Inc. v. Natural Petroleum Charterers. Inc.. 931
F.2d 191 (2d Cir. 1991) ('partial fmal award' that solely adjudicated the issue of liability, but not damages,
was subject to immediate judicial review); Providence Journal Co. v. Providence Newspaper Guild, 271

'" In his summary of Michaels, he describes the case as "constming the phrase 'the award' in 9 U.S.C. 10(a) to
confer Jurisdiction on a federal court only after a final award " [pg. 14-15] (emphasis added) Also, in relying on
Michaels, he erroneously concluded that "[i]n order for an award to be 'fmal,' an arbitration award 'must be intended
by the arbitrators to be their complete determination of all claims submitted to them.'" (quoting Michaels, 624 F.2d at
413). He then says: "By leaving open the issue of costs. Arbitrator Gregory's award did not end the arbitration
proceeding and was therefore not a 'final' decision. As the award did not terminate the arbitral proceeding, the ARC
had the authority to decide on arbitrator objections." [pg. 15]
The two articles are Finality, Ripeness, and Functus Officio: The Interlocutory Arbitral Award Conundrum. Journal
of the ACCL. Vol. 7, No. 2.. 2013 and The Federal Arbitration Act: Risks and Incongruities Relating to the Issuance
of Interim and Partial Awards in Domestic and International Arbitrations, 16 Am. Rev. Int'l Arb. 1, 2006.

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F.3d 16 (1st Cir. 2001) (an interlocutory arbitral determination on liability could be immediately enforced
by the district court, even though the parties had only 'informally agreed' upon bifurcation).'^
The facts of this case" and the prevailing law support that Gregory's Partial Final Award was both
ripe and final for the sake of immediate judicial review. Since both parties had discrepancies with the
Award and Gregory, the only person with authority and jurisdiction to resolve those issues, was P. Kevin
Castel, but he refused to do so because 1 was entering to the cotui with a favorable decision.'^ 1 have still
been unable to find one case in which an arbitrator has vacated the Award of another arbitrator and Loeb &
Loeb LLP nor Castel have cited any case law that supports their arguments The actions of Castel and the
AAA constitutes a further violation of my constitutional right to due process because Headier Santo of the
AAA informed both parties that the replacement arbitrator would not vacate any of Gregory's decisions.
After Lewis was fraudulently appointed, Loeb & Loeb LLP immediately moved for Lewis to vacate
Gregory's PFA and Lewis complied. Since Gregory's Award was reviewable by the federal court, only the
federal coiut had jurisdiction to confum, modify and/or vacate his Award and determine whether or not he
should be disquahfied. Since this did not happen, all decisions rendered by Schnader LLP attomey Timothy
K. Lewis should be vitiated and all monies paid by William Morris to Lewis and his fum should be paid to
me as a result of being unjustiy em-iched.
[P. Kevin Castel's Orders Never Discuss Claims that Loeb & Loeb LLP and its Attomeys Have
Engaged in a "Pattern" of "Fraud Upon the Court"] hi Castel's September 5, 2014 and October 22,
See e.g.. Dealer Computer Services. Inc. v. Dub Herring Ford. 547 F.3d 558 (6th Cir. 2008) (court of appeals
concluded that an interlocutory arbitral decision that was not final might nonetheless be subject to immediate judicial
review based on a finding of ripeness); Andrea Doreen. Ltd. v. Building Material Local Union 282. 250 F. Supp. 2d
107 (E.D.N. Y. 2003) (district court held that an interim award finding certain 'defenses are not adequate to prevent
liability' was subject to immediate confirmation); Home Ins. Co. v. RHA/Pennsylvania Nursing Homes. Inc.. 127 F.
Supp. 2d 482 (S.D.N. Y. 2001) (district court concluded that an interim award that adjudicated only a portion of a
damages claim and ordered immediate payment was final and subject to immediate enforcement even though other
liability and damages issues relating to same claim remained). See also, 16(a)(1)(D) of the FAA, which states that
an appeal can be taken fi-om "an order... confirming or denying confirmation of an award or partial award." (emphasis
added)
''' Although I asked for a bifiircated proceeding if the arbitrator decided to enforce the arbitration agreements, the
Appellees misrepresented to Castel that a bifiircated proceeding had not been requested. By refusing to comply with
any of my discovery requests, which included producing various financial documents, there was no possible way
Gregory could compute monetary damages.
'* On pages 17 through 22 of my October 3, 2014 Fraud Upon the Court Motion I discuss the numerous reasons why
Arbitrator Gregory's Partial Final Award was reviewable.

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2014 Orders, he never addressed the pyramid of evidence which established that Loeb & Loeb LLP were
engaging in a "pattem" of "fraud upon the Court" on William Morris' behalf These claims were initially
brought to the Second Circuit's attention in my third and fourth appeals filed in 2012. In siunmary of Rowe:
Rowe Entertainment and Arbitrator David L. Gregory's Interim Decisions Regarding
"Exhibit 31": The Second Circuit is familiar with Rowe Entertaiimient v. William
Morris Agency et al. (98-Civ-8272). While working on my third appeal, I came across
an article written by CNN tided "Cormption in Our Federal Coiuts,"^ which discussed
the fraud that occurred in this case. In my fourth motion to the 2'^ Cir., 1 presented a
copy of the concealed docvunent that Leonard Rowe fotmd on the desk of his attomey
Raymond Heslin and was including as "Exhibit 31." In response, my motion was
returned to me by the Clerk of Court, Catherine O'Hagan Wolfe. In arbitration, 1
demonstrated that Rowe's claims that his attomeys from Sonnenschein Nath &
Rosenthal LLP (now known as Dentons LLP) conspired with attomeys for the Booking
Agency Defendants" - Loeb & Loeb LLP and Weil Gotshal & Manges LLP - in an
imconscionable scheme to conceal any racial derogatory terms/smoking gun evidence
from being revealed were tme. In Arbitrator Gregory's first Interim Decision, he asked
both parties to submit more information about "Exhibit Si's" authenticity and
relevance. In response to the parties June 15, 2013 submission. Arbitrator Gregory
admitted "Exhibit 31" into the evidence of record in his third Interim Decision on
September 25, 2013, he ordered William Morris to pay the costs for my e-discovery
expert to retrieve the e-mails. This was important, because after each one of Rowe's
former attomeys submitted perjurious Declarations between May 14-15, 2012 saying
that "no derogatory terms" were found during e-discovery, Patterson ignored this
evidence and denied Leonard Rowe's Fed. R. Civ. P. 60 Fraud Upon the Court on
November 8, 2012 as being "fiill of hot air and paranoid suspicions."
Despite concluding that all of my legal arguments are "witiiout merit," none of P. Kevin Castel's
last three Orders discuss my claims of "fraud upon the Court."^' Castel's Orders also never discuss
allegations that Loeb & Loeb LLP have committed numerous violations under the New York Rules of
Professional Conduct^^ and New York Judiciary Law 487 as a result of their "highly unethical and criminal
On pages 22 through 26 of my October 3, 2014 Fraud Upon the Court Motion, I discuss the numerous reasons why
I believe Loeb & Loeb LLP and its attomeys have engaged in a "pattem" of "fraud upon the Court" in order to prevent
racial discrimination claims against William Morris from being decided by an impartial jury.
^ "Corruption In Our Federal Courts." December 30, 2011. http://ireport.cnn.com/docs/DOC-724105.
^' Although Arbitrator Gregory was unlawfully disqualified, his decision to admit this concealed evidence into the
evidence of record could not be overturned under the doctrine of collateral estoppel. Although Lewis was unlawfully
appointed, he did not vacate any of Gregory's Interim Decisions. This creates an additional reason why Lewis erred
as a matter of law in concluding that arbitration was the only forum my case could be resolved.
Pursuant to Rule 8.4 of the New York Rules of Professional Conduct, a lawyer or law firm shall not: (a) violate or
attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through
the acts of another; (b) engage in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness or
fitness as a lawyer; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in
conduct that is prejudicial to the administration of justice or (e) state or imply an ability: (1) to influence impropedy

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conduct." By refusing to acknowledge my claims of attomey misconduct, Castel violated my constitutional


right to due process when he ignored my March 17, 2014 Motion and told me to continue arbitrating the
case against counsel that was engaging in fraud.^^ The Second Circuit has also ignored these claims.
Castel nor the Second Circuit resolved the ethical issues that were created from Christian Carbone's
failtire to disclose information about his marriage to an executive for the American Arbitration
Association.^^ In my October 3, 2014 Motion to the Second Circuit, I asked for Christian Carbone submit
an Affidavit confirming and/or denying this information since Castel stated in his September 5, 2014 Order
that the marriage was "alleged." In the Appellees' December 4, 2014 oppositional Motion, they made no
mention of Carbone's relationship to Sasha A. Carbone and die Second Circuit also made no mention of
this issue in their March 11, 2015 Order. For more dian a year, Carbone has been allowed to remain silent
about information that I would have had to reveal.^''

Due to Unresolved Claims of "Fraud Upon the Court" and Social Significance of
Case, The Supreme Court Should Grant My Petition for A Writ of Certiorari and
Ultimately Vitiate All Decisions in Favor of William Morris, Loeb & Loeb LLP, the
American Arbitration Association, P. Kevin Castel and the Second Circuit.

Although there is a "strong federal policy favoring arbitration," there should be an even stronger federal
pohcy to eradicate racial discrimination, as well as other types of discrimination, throughout die American
workplace smce Title VII was a direct legislative byproduct of the black-led civil rights movement^^ and

or upon irrelevant grounds any tribunal, legislative body or public official; or (2) to achieve results using means that
violate these Rules or other law.
It is well settled that a motion to disqualify a law firm and/or an attomey for purported violations of professional
rules of ethics, can only be decided by the federal court, not arbitrators.^-' Bidermann Industries Licensing. Inc. v.
Avmar N.V.. 570 N.Y.S.2d 33 (1st Dep't 1991); Northwestern Nat'l Ins. Co. v. Insco Ltd. 2011 WL 4552997 (S.D.
N.Y. 2011). This further supports that Castel should have allowed for due process by staying the arbitration and
impartially resolving all of the issues that were raised in my March 17, 2014 Motion.
I also learned that Judge Lohier served as Robert P. Patterson's clerk from 1992-1993. Patterson is the federal judge
who presided over the Rowe Litigation and deemed "Exhibit 31" to be an "unidentified and unauthenticated
document" and stated that Rowe's claims of "fraud upon the Court" were full of "hot air and paranoid suspicions."
Days before filing my March 17, 2014 Fraud Upon the Court Motion, I leamed that Christian Carbone was married
to the General Counsel for the American Arbitration Association - Sasha Angelique Carbone.
Also, nothing has been said about Loeb & Loeb LLP attomey Michael Bamett's disappearance from this case. He
never submitted a Motion to Withdraw from this case, and is now working as an Assistant U.S. Attomey for the
Department of Justice. Smdh!
See e.g., Eyes on the Prize: America's Civil Rights Years (PBS television broadcast, 1986). Each episode of this six
part series can be viewed on Youtube.; see also, Daniel B. Rodriquez and Barry R. Weingast. The Positive Political

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the larger struggle of African Americans to live free from both invidious and institutional racism in
all areas of life in America.^^ "Title VII... is to be accorded a liberal construction in order to carry out the
purposes of Congress to eliminate the inconvenience, unfaimess and humiliation of [unlawful]
discrimination." Baker v. Stuart Broadcasting Co.. 560 F.2d 389, 391-92 (8th Cir. 1977). And the federal
court is "vested with the final responsibility for [Title VII's] enforcement through the construction and
interpretation of the statutes, the adjudication of claims, and the issuance of relief" See, e.g., Kremer v.
Chemical Constr. Corp.. 454 U.S. 461, 479 n.20 (1982) ("federal courts were entrusted widi ultunate
enforcement responsibiUty" of Title VII).
At no tune throughout this entire case has P. Kevin Castel, the AAA or die Second Circuit
acknowledged diat my claims included intentional systemic disparate treatment, disparate impact and prehiring individual disparate treatment.^' They have never discussed antidiscrimination law, yet, in Castel's
Jidy 20, 2011 Stay Order, Castel stated that I "ha[d] not shown that Congress intended to preclude
arbitration for claims asserted under either Tide VII or 42 U.S.C. 1981," but it's clear that 1 have and had
Castel actually discussed legislative history and public policy goals of the statute, he would have realized
diat. [PKC Stay Order, 10] Tide VII exphcidy states that it is "unlawful" for an employer to:
"to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privdeges of employment, because
of such individual's race, color, rehgion, sex, or national origin" or "to limit, segregate, or classify his
employees or applicants for employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect his status as an employee,
because of such individual's race, color, rehgion, sex, or national origin."
42 U.S.C. 2000e-2(a)(I), (2). Altiiough die Second Circuit states I have not argued any facts, I
have presented a number of facts that are material to my claims of systemic disparate treatment, disparate
impact, pre-hiring individual disparate treatment and violations of antitrust law that cannot be disputed. It
Theory of Legislative History: New Perspectives on the Civil Rights Act and Its Interpretation. 151 U. Pa. L. Rev.
I4I7, (2002).
See e.g., Adjoa Artis Aiyetoro. Can We Talk? How Triggers for Unconscious Racism Strengthen the Importance of
Dialogue. 22 Nat'l Black L. J. 1, 21 (Fall 2009) (""During slavery and Jim Crow it was not unusual for African
descendants to be treated in debasing ways, including being address with demeaning labels such as 'nigger.' Race and
racism were part of the very fabric of the society, and although other racial groups were treated in a discriminatory
fashion, the premier story of racism in the United States has been the treatment of African descendants.").
In his July 20, 2011 Stay Order, he summarized my 80 page Complaint in 1 Vi pages and made it appear that my
claims only consisted of post-hiring individual disparate treatment.
-10-

cannot be disputed that from 1898 to 1961, WilUam Morris had an expHcit pohcy of not hiring African
Americans. It cannot be disputed that from 2000 to 2010, zero African American Agent Trainees were
promoted to Agent in the New York office. It carmot be disputed that when I began employment at the New
York office in September of 2008, there were zero African American Agent Trainees, Coordinators or
Agents employed. Statistically, this is referred to as the "inexorable zero," which creates an inference of
racial discrimination. It took 101 years for the first African American Agent Trainee to be promoted to
fihn Agent. There has never been an African American television Agent employed in the New York office.
It cannot be disputed that I was extremely more qualified than all of my similarly situated white/" Jewish"
coxmterparts in the Agent Trainee program, but they all advanced above me. It cannot be disputed that while
white/ "Jewish" Agent Trainees were promoted at a rate of 10 percent, blacks employed in the New York
office have been promoted at a rate of zero percent since 2000.
This historical and statistical evidence without question establishes that Wilham Morris has always
been highly conscious of race and diat I entered into a company that was intentionally violating Tide VII
of the Civd Rights Act of 1964 before and during my employment.^^ The Appellees have never provided a
legitimate, non-discriminatory reason or "business justification" to explain why I was the only African
American in New York City deemed "qualified" enough to be hired at any level of the company's Agent
Trainee program. In a workplace where occupations are historically segregated by race and the work culture
is defined along racial lines, it cannot be disputed diat many of decision-makers harbored imphcit racial
biases against people of color and as a result, the company's strong rehance on subjective decision-making
led to evaluations were consciously and/or unconsciously, tainted by racial bias.^'
The Appellees never met their heightened burden of production and persuasion. During discovery, they refiised to
produce any relevant documents (e.g. resumes, evaluations, etc.) to support the arguments made against me. They
never produced the underlying e-mails to "Exhibit 31" and/or an^ of the e-discovery e-mails, compact discs (CDs),
etc. that were allegedly received from Electronic Evidence Discovery ("EED") in around late September/early October
of 2002, despite being compelled to do so. As licensed attorneys with more than 20 years of experience, Zweig and
Carbone were "aware of the necessity for compliance with the mles of discovery and the mles of professional
responsibility. [They were both] aware of the damage failure to abide by these mles [could wreak] in the specific case
at hand and the larger framework of confidence in the adversary trial system." Pumphrey v. K. W. Thompson Tool
Co.. 62 F.3d 1128 (9th Cir. 1995).
^' In his March 10, 2015 Report issued in Chen-Oster. Magistrate Judge Francis was able to acknowledge the realities
of discrimination in the American workplace. He stated, "Of course, in any large organization, there will be some,
perhaps many, instances of discriminatory conduct, whether by supervisors or by co-workers." Had the case remained
- II-

As a hue-man being and American citizen of African descent, am I not justified in all of the actions
that I have taken to ensure that the pubhc policy goals of Tide VII and the NYCHRL are upheld? Am I not
justified in trying to ensure that the this racist Hollywood mstitution not be allowed enforce its mandatory,
pre-dispute arbitration agreement since this company has and still is engaging in a 117 year pattem and
continuing practice of excluding African Americans from meaningful positions of employment? Based on
the facts, am I not justified in raising claims that the Appellees and their counsel have engaged in a "pattem"
of "fraud upon the Court"? Is it ethical for an attomey to refiise to disclose to the other party that his/her
significant other is an executive at a privatized forum his/her chents wants the federal court to compel the
case to? These issues needed to be addressed and the Second Circuit refused to do so.
"The act of writing brings judges closer to the specific details and relevant issues of a case, forcing
them to reckon with the case at hand in all its particulars, rather than seeing it as an instance of some more
general theory or problem."^^ As U.S. Article III federal judges of Afiican descent, Swain and Lohier, were
in the best position to explain why Wdliam Morris is complying with Title VII, NYSCHRL despite
maintainmg a racially segregated workforce for 117 years and counting. If my appeal tmly "lack[ed] an
arguable basis either in law or in fact," why couldn't the Second Circuit explain how an arbitrator with
more than 30 years' experience as a labor & employment law professor and arbitrator for the AAA was
able to conclude that "William Morris Endeavor Entertainment LLP discriminated against [me] in violation
of pertinent federal, state and local law prohibiting discrimination in employment on the basis of race" and
award me the fidl gamut of monetary damages, including punitive and pro se non-attomey's fees? Why did
Castel and the Second Circuit refuse to acknowledge that he admitted concealed evidence into the evidence
of record in my case? Why did both courts allow Loeb & Loeb LLP to remam silent to these serious clauns?
And if my claims are in fact frivolous, please explain why an ehte law firm such as Loeb & Loeb LLP
in the federal court, Francis would have concluded that sentence by saying, "[William Morris] has presented [no]
evidence that it takes steps to counteract instances of [racial] bias."
William Domnarski. Judges Should Write Their Own Opinions. NeM> York Times. March 31, 2012.
http://mobile.nytimes.com/2012/06/01/opinion/judges-should-write-their-own-opinions.html. The article also quotes
Seventh Circuit judge Richard A. Posner as saying: "I know that only a few of the readers of my opinions are not
lawyers, but the exercise of trying to write judicial opinions in a way that makes them accessible to intelligent lay
persons contributes to keeping the law in tune with human and social needs and understandings and avoiding the legal
professional's natural tendency to mandarin obscurity and preciosity."
- 12-

would need to enlist six attomeys and tiiree paralegals to defend Wdliam Morris against a man who is
without a law degree?
Since this case is of extreme social significance and deals with a number of issues that are of first
impression for the district, appellate and Supreme Court, it was important for the appellate court issue an
ethical judicial opinion and explain the law to this pro se non-attomey.-'^ Compare, DiPetto v. United States
Postal Service. 383 F. App'x 102 (2d Cu. Jul. 12, 2010) (Second Ckcuit reverses district court's decision
in favor of white male pro se litigant alleging race-based individual disparate treatment). The reality is: The
law has never been in favor of Wilham Morris and Loeb fe Loeb LLP and it is only through collusion and
fraud that they have been able to obtain favorable verdicts from the AAA and the federal court. Knowing
that the Supreme Court accepts less than one percent of the petitions that are filed each year, the Second
Circuit ignored stare decisis and established new precedent that allows employers to violate Tide VII
without any repercussions. Although panel judges Jacobs, Lohier and Swain stated in their March 11, 2015
Order that my appeal "lack[ed] an arguable basis in law or in fact," it is clear that they are lying and
intentionally violating the U.S. Constitution, their Oath of Office and the Judicial Code of Conduct. To
deny my appeal without resolving the issue of "fraud upon the Court" demonstrates that the panel is
engaging in subjective, ideological decision-making. Based on all of the facts and circumstances, it is
clear that Loeb & Loeb LLP should have never been allowed to represent William Morris in this case and
are being unjustly enriched from their highly unethical and criminal conduct.
The Second Circuit should have complied with my requests and transferred my appeal to another
circuit since the Second Cucuit has refiised to issue an ethical judicial opinion over the last four years. By
" Alifya V. Curtin, Gerald Lebovitz & Lisa Solomon. Ethical Judicial Opinion Writing. The Georgetown Journal of
Legal Ethics. Vol. 21, 237. 2008.
In a democracy, judges have legitimacy only when their words deserve respect, and their words deserve respect
only when those who utter them are ethical. Opinion writing is public writing of the highest order; people are
affected not only by judicial opinions but also by how they are written. Therefore, judges and the opinions they
write opinions scmtinized by litigants, attomeys, other judges, and the public are held, and must be held,
to high ethical standards. Ethics must constrain every aspect of the judicial opinion.
I am also now aware that litigants are allowed an independent cause of action for "fraud upon the Court" pursuant
to Fed. R. Civ. P. 60(d) - even if the district court denies my Fed. R. Civ. P. 60 claims - so this further supports that
Castel abused his power by issuing a filing injunction against me to prevent me from pursing claims. See e.g.,
Demjanjuk v. Petrovskv. 10 F.3d 338, 348 (6th Cir. 1993).
- 13-

suppressing the truth and issuing six improvident Orders, the Second Circuit has engaged in conduct that
further undermines the pubUc's confidence in our nation's judiciary. For the last five years, I have been
unemployed. I am living below the poverty level and am still living out of the two suitcases I moved to
New York with after finishing my Masters in Music Business from the Uiuversify of Mianu in May of
2010. My reputation and livelihood have been ruined. My parents have been supporting me by giving me
$400 a month, but will no longer be able to support me after the end of July. Since pursing this case against
William Morris, I have spent more than $2,400.00 on various costs associated with this htigation. The
reality is, 1 shouldn't be hving below the poverty level right now. Had WiUiam Morris not maintained a
racially discriminatory work environment or harbored a deep-rooted racial animus against Afiican
Americans, I would have a wonderfiil and lucrative career as a music Agent present day.
Based on all the facts and circumstances, it is without question that arbitration was never an
appropriate forum to achieve the pubhc pohcy goals of Tide VII and pursuant to the statute, the merits of
my claims should have been resolved by an impartial jury reflecting New York City's rich diversity. Since
the inception of this case, I have repeatedly argued: the realities of institutional and unconscious racism
cannot be ignored - especially in an employment discrimination case of this magnitude. Although William
Morris and Loeb & Loeb LLP have argued that I am "racist" and "anti-Semitic," the evidence that has been
presented to the Court demonstrates otherwise. In Schuette v. Coahtion to Defend Affirmative Action,
Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), 134 S. Ct.
1623, 1676 (2014), Supreme Court Justice Sonia Sotomayor stated in her dissent: "The way to stop
discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the
Constitution with eyes open to the unfortunate effects of centuries of racial discrimination." All of my
attempts to "candidly" talk about race under oath and apply antidiscrimination law to the facts of this case
have been rejected by the lower courts. Based on Justice Sotomayor's repeated acknowledgement of the
realities of racism throughout American society, I believe that even if the conservative, Repubhcanappointed majority on the Supreme Court denies my meritorious petition due to the Court's historical
hostility towards civil rights cases involving American citizens of Afiican descent. Justice Sotomayor will
-14-

feel compelled to write a dissent after reading about Wdliam Morris' egregious history of racism and the
numerous ways in which I've been deprived of my constituhonal and statutory rights under the color of law
and defrauded by various officers of the court in my attempt to uphold the public policy goals of our nation's
antidiscrimination and antitrust laws.

Conclusion

"A well known legal maxim is tiiat public pohcy demands fmality of judgment that there be an end to
litigation at some point. Another important policy which must be weighed against the interest in fmality is
die pohcy favoring fan and correct results in htigation. It is these interests which courts must balance when
a party dissatisfied with a judgment seeks to have it vacated or amended."^^ Due to the fact that various
Article III judges have disregarded then oaths of office and flouted the law to rule m Wilham Morris and
Loeb & Loeb LLP's favor, it is clear that the "fair and correct results" have not been reached in this
litigation. So as far as due process is concerned, I have every right to have this extreme "miscamage of
justice" corrected by the Supreme Court or an international organization such as the United Nations.
William Morris and Hollywood must be held accountable for their egregious violations of Title VII, as well
as their violations of antitrust laws and conspiring to interfere with the human rights of people of African
descent, m violation of the Ku Klux Klan Act of 1871, 42 U.S.C. 1985.
When the mandate is issued, it becomes the "law of the case."^'' As discussed above, the Second
Circuit prematurely issued the Mandate on May 21, 2015. The Mandate should have been stayed, pending
the filing of my petition for a writ of certiorari to the Supreme Court. In order to correct this procedural
error, I ask the Second Circuit to use its inherent powers to recall and stay the Mandate pending the filing
and resolution of my petition for a writ of certiorari with the Supreme Court, which will be submitted no
later tiian July 29, 2015.

See McLamb, supra note 10, at 157.


Id at 159.

- 15-

Dated: New York, New York


June 1, 2015

Respectfully submitted.
Marcus I. Washington
54 Boerum St. Apt. 6M
Brooklyn, NY 11206
(646) 504-6497
humanTights.areamust@gmail.com

Exhibit A

S.D.N.Y.-N.Y.C.
lO-cv-9647
Castel, J.

United States FORCourt


of Appeals
THE
S E C O N D CIRCUIT

At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 11''' day of March, two thousand fifteen.
Present:
- - Dennis Jacobs,
Raymond J. Lohier, Jr.,
Circuit Judges,
Laura Taylor Swain,*
District Judge.
Marcus Isaiah Washington,

Plainliff-AppellanI,
14-4328

V.
William Morris Endeavor Entertainment, LLC, AKA
The William Morris Agency, Incorporated, et al.,

Defendants-Appellees.

Appellant, pro se. moves for leave to proceed in forma pauperis, to suspend the fding injunction
entered by the district court, and to transfer this case to another Circuit. Upon due consideration,
it is hereby ORDERED that the motion is DENIED and the appeal is DISMISSED because it
"lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989);
.^ee ^/.yo 28 U.S.C. 1915(e).
FOR THE COURT:
Catherine O'Hagan Wolfe, Cierk
A True Copy
Circuit

i'J^^^S]*]

"-v^fTo

*Judge Laura Taylor Swain, of the United States District Court for the Southern District of
N e w York, sitting by designation.

MANDATE

ISSUED ON 05/21/2015

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