Petition denied in October 2006

No. 06-63

In The Supreme Court of the United States

David Roemer,



Board of Education of the City School District of the City of New York,


On Petition for Writ of Certiorari to The United States Court of Appeals for the Second Circuit


1. Whether judges of the United States District Court for the Eastern District of New York and the United States Court of Appeals for the Second Circuit in dismissing petitioner’s lawsuit acted so irrationally as to undermine confidence in federal courts because the respondent prosecuted patently fraudulent, illegal, and malicious disciplinary charges against the petitioner in order to subvert an agreement to conciliate a disagreement about teaching methods.

2. Whether the lower courts erred in ruling that New York Education Law § 3020-a(5) does not deprive tenured teachers of equal protection of the law and due process of law in violation of the Constitution of the United States of America in that it limits the grounds for appealing decisions rendered in disciplinary hearings to grounds that apply to voluntary arbitrations and not the grounds found in common law and codified in the laws of New York State.


The petitioner here and the plaintiff-appellant below is David Roemer. The respondent here and the defendant-appellant below is the New York City Department of Education (“DOE”).

Herbert Monte Levy, Esq., and the Public Employment Relations Board of New York State (“PERB”) were defendants but were not defendants-appellees and are not respondents. Mr. Levy is a private attorney that I retained to represent me in a lawsuit in the supreme court of New York State that preceded the lawsuit in the District Court.

Tom Pappas, who was a former chief of staff of the United Federation of Teachers (“UFT”), is not a respondent because I never served a summons on him. Mr. Pappas is identified as a defendant in the orders of the District Court and the Second Circuit.

Joyce Coppin, who was a former superintendent of Brooklyn high schools, is not a respondent becuse I never served a summons on her. Mrs. Coppin is named as a defendant in the report of the magistrate judge, but not in the orders of the district judge.







  • Preliminary Statement

  • State Court Proceedings

  • Proceedings in Lower Federal Courts

  • Reasons for Granting Petition

    • A Prima Facie Case Was Made For Fraud

    • Irrationality of the Disciplinary Panel

    • Inapplicability of Contract Law

    • Summonses Were Not Served on Coppin and Pappas

    • Constitutionality of Education Law § 3020-a(5)


      APPENDIX A: Report and Recommendation of J. Gold dated December 30, 2002

      APPENDIX B: Memorandum and Order of J. Gershon dated November 6, 2003

      APPENDIX C: Order of J. Gershon Admitting Failure to Read Letter

      APPENDIX D: Order of Judicial Council Dated December 21, 2004

      APPENDIX E: Order of Second Circuit Filed September 23, 2005

      APPENDIX F: Denial of Rehearing Dated February 2, 2006


      Abramovitch v. Board Education Central School District No.1 Towns Brookhaven and Smithtown, 1979.NY.40741, ¶ 23, 386 N.E.2d 1077, 46 N.Y. 2d 450, 414 N.Y.S. 2d, 109 (1979) (VersusLaw), reh’g denied 46 N.Y. 2d 1076, 416 N.Y.S. 2d, 1029, cert. denied 444 U.S. 845, 100 S. Ct. 89

      Board of Education of Carlsbad Municipal Schools v. Harrell, No. 20,856, 1994.NM.40160, ¶¶ 97, 98, 118 N.M. 470, 882 P.2d 511 (N.M. 1994) (VersusLaw)

      State of Alaska v. Public Safety Employees, No. 3642, File No. S-3291, 1990.AK.183, ¶ 40, 798 P.2d 1281 (Alaska 1990) (VersusLaw)

      Thompson v. City of Louisville, et al. 362 U. S. 199 (1960)

      Vargas v. City of New York, Docket No. 03-7311, 2004.C02.0000835, ¶ 24, 377 F.3d 200 (2d Cir. 2004) (VersusLaw)

      Education Law § 3020-a(3)(c)(ii)

      Education Law § 3020-a(4)(b)

      Education Law § 3020-a(5)


      The report of United States Magistrate Judge Steven Gold is reprinted as Appendix A and is reported at 2002 U.S. Dist. LEXIS 27118. The order of the United States District Judge Nina Gershon is reprinted as Appendix B and is reported at 290 F. Supp. 2d 329, 2003 U.S. Dist. LEXIS 20163. A second order by J. Gershon is reprinted as Appendix C. A decision of the Judicial Council of the Second Circuit is reprinted as Appendix D. The order of the Second Circuit is reprinted as Appendix E and the denial of my petition for a rehearing is reprinted as Appendix F.


      The judgment of the Second Circuit was entered on September 23, 2005. A petition for a rehearing en banc filed on October 3, 2005, was denied on February 23, 2005. The jurisdiction of this court is invoked under 28 U.S.C. § 1254(1). Since 28 U. S. C. § 2403(b) may apply, notification has been given to the New York Attorney General.


      Preliminary Statement

      On February 23, 2001, I filed a pro se complaint with 58 paragraphs against the DOE, PERB, and Mr. Levy. On May 24, 2001, I filed an affidavit in support of a motion for summary judgment in my favor and against the defendants (see footnote at p. 2a) with 84 exhibits, labeled 1 to 84. On June 1, 2001, I filed an amended complaint naming Mrs. Coppin and Mr. Pappas as defendants. The defendants did not answer my allegations, but only argued that my lawsuit was precluded by prior litigation. The following is a summary of the paragraphs in the amended complaint. All the quotations are from the exhibits:

      Paragraphs 1 to 3: As a result of changes in 1994, Education Law § 3020-a(5) violates the constitutional due process and equal protection rights of tenured teachers because it does not allow appeals of decisions made by disciplinary panels on the grounds given in Article 78 of the New York Civil Practice Law and Rules.

      Paragraphs 4 to 6: I began teaching in 1984, and I was a tenured teacher at high schools operated by the DOE in Brooklyn. In September 1994, I was appointed to Edward R. Murrow High School, where I taught a course titled Regents Physics. At the new school my supervisors rated my lessons as unsatisfactory.1

      Paragraph 7: On November 4, 1994, the UFT requested conciliation over the “approach that should be used in the teaching of physics” because “His [Roemer’s] observations have been critical because of a lack of developmental lesson plan” (Exhibit 13). This request was made pursuant to a provision in the collective bargaining agreement titled “Professional Conciliation” (Exhibit 15). On December 2, 1994, the DOE sent a letter to Mrs. Coppin accepting the request to conciliate “on behalf of the teachers at Edward R. Murrow” and saying,“A conciliator will be assigned if you are unable to get the parties to agree.” (Exhibit 14).2
      Paragraph 8: On May 29, 1995, I filed a grievance according to procedures in the collective bargaining agreement against Mrs. Coppin and my supervisors for improperly threatening “to file charges against me for incompetence in a 3020a procedure in violation of our agreement to conciliate.” (Exhibit 19).

      Paragraphs 9 to 15: I was given a teaching program in Regents Physics for the 1995–1996 school year.3 On January 16, 1996, Mr. Pappas told me “the Grievance Committee of the AdCom [Administrative Committee] has decided to remand this grievance (Case #13511) back to Professional Conciliation” (Exhibit 29). On February 29, 1996, the DOE assigned me to nonteaching duties.

      Paragraphs 16 and 17: On November 20, 1996, the members of the board of the DOE voted publicly that there was probable cause for charges that were filed against me pursuant to Education Law § 3020-a. The charges were itemized in a 24-page document (Exhibit 32) that was unlawful and fraudulent because the document omitted any reference to the pending grievance and the agreement under Professional Conciliation. The specification of charges also omits any reference to a disciplinary letter (Exhibit 26) from Mrs. Coppin saying, “I will recommend that steps be taken to prefer charges against you.” This letter has a response written by me (Exhibit 28). Another common law element of fraud is the representation that I had undergone proper and standard remediation for poor teaching.

      Paragraphs 18 to 23: Attorneys from the DOE and UFT selected Howard Edelman, Esq., to be the hearing officer.4 Mr. Edelman brokered a settlement of the charges according to which I gave up my permanent civil service appointment to Edward R. Murrow High School, accepted a transfer to another school, and agreed to be suspended without pay for two months (Exhibit 41).

      Paragraphs 24 to 29: On June 13, 1997, Mr. Edelman violated my constitutional right to due process of law by conducting the first of seven hearings even though the case was settled.5 On June 1, 1998, a report (Exhibit 45) written by Mr. Edelman with the concurrence of another panelist said I should be terminated from my position with the DOE. The third panel member decided I should be transferred to another school with no other penalty (Exhibit 46).

      Paragraphs 30 to 58: These paragraphs recount my efforts to vacate the decision terminating me through the appeal procedure set forth in Education Law § 3020-a and other lawsuits.

      State Courts Proceedings

      In my briefs and pleadings to the District Court and the Second Circuit I argued that I did not get a full and fair opportunity to litigate in state courts because of the misconduct of my own attorneys and the DOE’s attorneys. The litigation in state courts began with an Article 75 petition (Exhibit 47) filed by Mr. Levy’s predecessor that sets forth only irrational and trivial claims in violation of the Official Compilation of Codes, Rules and Regulations of New York State (22 NYCRR 1200.33).

      On June 7, 2004, I filed a motion asking the Second Circuit to disqualify the DOE’s attorneys for making misrepresentations to state courts. The DOE’s attorneys did not answer my allegations. The panel of judges assigned to rule on my appeal denied this motion on August 19, 2005.

      The standard of review required in the Second Circuit for a district court’s dismissal on the pleadings is de novo.6 In this case, the Second Circuit began its order with the following quote from a prior opinion: "We may affirm [the dismissal] on any ground with support in the record, even if it was not the ground relied on by the District Court."

      My interpretation of the order of the Second Circuit (Appendix E) is that it relied entirely upon the preclusive effect of the disciplinary hearing held under Education Law § 3020-a and not on the defective state court proceedings, which were relied upon by the district court.

      Proceedings in Lower Federal Courts

      After J. Gold wrote a report (Appendix A) saying that my lawsuit should be dismissed, I retained C. W. Isley, Esq., who wrote the document I filed titled “Plaintiff’s Objections to Report and Recommendation of Hon. S. Gold, U.S. Magistrate Judge, Dated December 30, 2002.”7

      On November 6, 2003, J. Gershon adopted J. Gold’s report (Appendix B). On November 26, 2003, Mr. Isley wrote a motion and memorandum of law asking for reconsideration pursuant to local rules of the District Court.

      On December 15, 2003, I wrote a 4-page letter to J. Gershon telling her as respectfully as I could that she did not understand the case and that I wanted the opportunity to explain it to her in person.8 My request was refused.

      On January 27, 2004, I sent J. Gershon a 28-page letter listing 17 misleading statements in J. Gold’s report and 10 irrational statements in Mr. Edelman's report.9

      On January 28, 2004, J. Gershon denied my motion for reconsideration.

      On February 3, 2004, J. Gershon signed an order (Appendix C) admitting that she did not read the 28-page letter because it came across her desk after she denied my motion for reconsideration.

      On March 12, 2004, I filed a notice of appeal, written by Mr. Isley, with the Second Circuit naming Mrs. Coppin and Mr. Pappas as defendants.

      On April 15, 2004, I filed a judicial conduct complaint against J. Gold, which was dismissed on December 21, 2004 (Appendix D).

      On September 23, 2005, the Second Circuit issued an order (Appendix E) that affirmed the District Court’s dismissal of my complaint.

      On October 3, 2005, I filed a petition for a rehearing en banc. The Second Circuit denied the petition on dated February 23, 2006 (Appendix F).

      On March 31, 2006, I filed a motion with the Second Circuit to vacate its order of September 23, 2005, on the grounds that the DOE’s attorneys deceived the District Court and the Second Circuit by claiming they represented Mrs. Coppin. On April 20, 2006, I filed a motion to expedite this motion and on May 4, 2006, I sent a letter asking about the status of the motion. The DOE’s attorney and the UFT’s attorney did not file a response. As of July 7, 2006, the Second Circuit has not granted or denied the motion or returned my motion papers to me.

      Reasons for Granting Petition

      A Prima Facie Case Was Made For Fraud

      On p. 33 a the Second Circuit states: "We note in passing that plaintiff's claim that the 3020a proceeding was gained by fraud fails, as he proffers only bald allegations of alleged fraud."

      I pled the allegation of fraud in accordance with Rule 9(b) of Fed. R. Civ. P. by listing the common law elements of the fraud.

      It is apparent that the members of the board of the DOE were tricked into believing there was just cause to terminate me because the specification of charges made my case seem like a typical case of teacher incompetence. Why else would the members of the board of the DOE vote to spend about $100,000 to terminate me when the disagreement about teaching could have been resolved by the provisions of Professional Conciliation or the lawful grievance that I filed and that was still pending? The grievance I filed against Mrs. Coppin was a professional and appropriate response to the breach of the agreement under Professional Conciliation.

      This was not a typical case of teacher incompetence except insofar that a principal of a school was unreceptive to an innovative approach to teaching that a teacher learned about in workshops and seminars. In the case at hand, the agreement under Professional Conciliation had the effect of protecting the DOE’s investment in workshops and seminars provided to its teachers to improve teaching methods.

      I believe that Mrs. Coppin and Mr. Pappas caused the charges to be filed against me to avoid having my grievance against Mrs. Coppin resolved by the Chancellor’s office. The UFT initially refused to appeal the grievance to the Chancellor, as it has the right to do. However, Mr. Pappas did not uphold this decision (see Paragraphs 9 to 15 above), but did nothing to prevent the charges from being filed.

      Irrationality of Decision by Disciplinary Panel

      On p. 33a, the order of the Second Circuit states: "Roemer's claims against the DOE (and, therefore, Choppin [sic], a DOE superintendent) fail under the doctrine of collateral estoppel. Collateral estoppel, also termed issue preclusion, applies to administrative adjudications, including 3020-a hearings. See Burkybile v. Bd. of Educ. of Hastings on Hudson Union Free Sch. Dist., 411 F.3d 306, 310–12 (2d Cir. 2005)"

      The following quotation from Mr. Edelman’s report sheds light on why he terminated me, and also explains why the minority report said I should be transferred to another school without any additional penalty. The excerpt begins with a 5-paragraph quotation from my testimony at the disciplinary hearing and ends with a 1-paragraph statement from Mr. Edelman:

      “The first step would be to try to identify exactly the difference between what I was doing in the class and what they wanted me to do or what the other teachers were doing or what I was doing—at Midwood.
      “It’s not at all clear exactly—what I mean, it’s not clear in my mind exactly what the difference was between what I was doing in Midwood and what I was doing at Murrow. To me I was just adding things, but that would be the first step, to see if we could resolve that.
      “Then the second thing would have been, since we were all agreed that the best lesson is the ones where there’s the most amount of student participation, maybe by tests at the end of the period or having people observe the activities of the students.
      “And the third level that it could have been conciliated would be by comparing the test scores my kids got with the test scores that other teachers got.
      And if we had gone through these steps and these processes, it might have been possible for us to resolve our—differences.
      (emphasis added 539–540)
      "Respondent’s last comment is most significant. It indicates he would have been willing to modify his practice only if the administrators were willing to accept some or all of his views about teaching. While this may be a genuinely conciliatory attitude, it affords no basis for us to conclude that were Respondent returned to duty he would conform to the requirements imposed by his administrators."10

      Not being an educator, Mr. Edelman did not understand that my supervisors and I disagreed only about teaching Regents Physics, not courses in general science. Many more students take general science classes than Regents Physics. At my former high school, for example, there was one class of Regents Physics and about 50 classes of general science. This is why Mrs. Coppin and I were able to settle our differences by my transferring to another school. It was understood that I would be teaching only general science.

      The following quotation from Mr. Edelman’s decision shows that he was aware of Mrs. Coppin’s mistakes: "The Panel agrees with Respondent’s [Roemer’s] contention that those comments go beyond the Superintendent’s role as a conciliator. The directive, to “accept the principal’s position,” though couched as a recommendation, is not a conciliatory gesture but is rather the imposition of a requirement. Thus, we find, the conciliation process at Dr. Coppin’s level was not properly conducted."11

      The only mention made of Professional Conciliation in the summation of the DOE’s attorney was vulgar:

      Mr. Mazzariello: You know what he can do with the conciliation process. I would tell but Mr. Edelman would yell at me.
      The Hearing Officer: I will.
      Mr. Mazzariello: I could tell him what to do with it. I’d really like to tell him man to man, face to face on the sidewalk in the middle of the street what he could do with that conciliation process.12

      Judging from his report, Mr. Edelman did not consider what motivated Mrs. Coppin to negatively interfere with the conciliation process and what motivated her to cause charges to be filed against me. Mr. Edelman was unaware of the fact that my grievance against Mrs. Coppin was unresolved and only considered whether or not my supervisors were sincere in their opinion that my students were not learning.

      Inapplicability of Contract Law

      On page 33a the Second Circuit states:
      Roemer’s due process claim also fails. His only possible claim is based upon an unsigned stipulation, which states that it “shall not be binding until all final signatures are affixed hereto.” The stipulation is not signed by any defendants. Roemer argues that the defendant’s failure to abide by the stipulation (and not terminate him) violated his due process rights. But this argument contradicts the terms of the putative agreement, which never became effective.

      Education Law § 3020-a(4)(b) requires that boards of education implement the hearing officer’s decision. Since the settlement was negotiated in the pre-hearing conferences mandated by Education Law § 3020-a(3)(c)(ii) it was given to the DOE in lieu of the decision and the DOE was bound by law to implement it. In Abramovich v. Board of Education13, a teacher who was terminated after resuming teaching duties pursuant to a settlement of prior disciplinary charges was deemed to have waived his rights under Education Law § 3020-a.

      Summonses Were Not Served on Coppin and Pappas

      The initial complaint I filed named only the DOE, PERB, and Mr. Levy as the defendants. Upon reflection, I realized that Mr. Pappas and Mrs. Coppin were the individuals primarily guilty of deceiving the members of the board of the DOE into thinking there was probable cause for my termination. Mrs. Coppin and Mr. Pappas, however, were not responsible for the failure of the DOE to implement the settlement. I amended the complaint naming them as defendants but did not serve a summons upon them. Nonetheless, a law firm affiliated with the UFT wrote a letter to the district court saying it represented Mr. Pappas, and the DOE’s attorneys claimed that it represented Mrs. Coppin.

      If Mrs. Coppin and Mr. Pappas knew that they were defendants in this lawsuit and authorized the DOE’s lawyers and the UFT’s lawyers to respond as they did to my lawsuit, Mrs. Coppin and Mr. Pappas were guilty of replicating the dishonest conduct I am accusing them of in this lawsuit. As mentioned above, I brought this to the attention of the Second Circuit on March 31, 2006.

      Constitutionality of Education Law § 3020-a(5)

      The Commissioner of Education for New York State wrote a memorandum disapproving of a 1994 bill that changed New York Education Law § 3020-a(5):

      Eliminating the Commissioner’s authority to review sec. 3020-a panel decisions and limiting judicial review to Article 75 of the CPLR will, as a practical matter, mean that the arbitrator’s decision will be final and virtually unreviewable. There is no review on the merits of an arbitrator’s decision under CPLR sec. 7511, which will mean that the arbitrator’s decision will be final unless it is affected by fraud, partiality or procedural defects. This contrasts with the current standard for judicial review of sec. 3020-a decisions under Article 78 of the CPLR, as articulated in Pell v. Board of Education, 34 NY2d 222 (1974). Under this standard, a court has the authority to review sec. 3020-a decisions on the merits and may overturn the penalties imposed in such decisions if they are so arbitrary and capricious as to be “shocking to the conscience” of the Court. The Commissioner’s current review powers are even broader and provide substantial protection of the public, since the Commissioner may substitute his judgment for that of the hearing panel. If this bill is enacted, neither the Commissioner nor the courts will be in the position to act in the public interest to overrule an arbitrator’s decision, no matter how erroneous or outrageous that decision is.14

      Numerous high courts across the land have held that where arbitration is compulsory in nature a lack of meaningful judicial review under state law violates the constitutional guarantee of procedural due process. According to the New Mexico Supreme Court:

      We agree that due process, together with separation of powers considerations, requires that parties to statutorily mandated arbitration be offered meaningful review of the arbitrator’s decision. In order for review of the arbitrator’s decision to be meaningful, the court must determine whether the litigant received a fair hearing before an impartial tribunal, whether the decision is supported by substantial evidence, and whether the decision is in accordance with law. The provision…limiting judicial review of the arbitrator’s decisions to cases “where the decision was procured by corruption, fraud, deception or collusion” does not permit meaningful review of the arbitrator’s decision by the court. We therefore strike this provision as a violation of due process of law and as an unconstitutional delegation of judicial power.******The scope of review constitutionally required for compulsory arbitration is the review required for administrative adjudications.15

      The forgoing is in accord with the Supreme Court of Alaska:

      Compulsory arbitration is different. The parties have not agreed voluntarily to accept reduced possibilities of appellate review in order to resolve their dispute swiftly. It is by operation of law that the parties are denied their usual right to have their disputes resolved by the courts. Therefore, a standard of review higher than gross error is appropriate.16

      Non-probationary or non-provisional civil servants in New York are allowed an Article 78 review when they are dismissed after an administrative law judge (not just a labor arbitrator) makes an arbitrary and capricious decision or one not supported by substantial evidence. An Article 78 review is a codification of a common law right.


      The petition for a writ of certiorari should be granted because this case is more demanding of judicial supervision than Thompson v. Louisville.17 In this case, Thompson was convicted of “loitering and disorderly conduct” with no evidence supporting the charge. The Supreme Court reversed the conviction upon certiorari to the City Police Court of Louisville. In the present case, the charges against me were fraudulent and the court affirming my termination as a public school teacher is the Second Circuit.


      1. No. 1. In the disciplinary hearings referred to below, I testified as follows: “He [Roemer] suggests that the pass rate for those students taking the Physics Regents in 1993–94 was 60 percent and in 1995–96 was 65 percent; while in 1994–95 the only full year he taught Physics in Murrow it was 70 percent.” (Page 31 of Exhibit 45)

      2. No. 2. In my approach to teaching, I distribute a handout that explains the science concepts students are expected to learn and that contains questions, problems, and activities to be worked on in class. (Exhibit 35)

      3. No. 3 The Assistant Principal of Supervision for Science in an observation report dated June 13, 1995, said: “You have made it clear by your comments that the supervisory suggestions given to you during your year at Murrow are not useful.” (Exhibit 21)

      4. No. 4. Mr. Edelman was on a list of arbitrators maintained by the American Arbitration Association.

      5. No. 5 In my brief to the District Court opposing the motions to dismiss, I argued that the DOE did not implement the settlement out of animus against me for criticizing the DOE in a letter published in the New York Times on September 5, 1994, and in testimony at a public hearing of the State Education Department that was published by the American Educational Research Association on February 2, 1995.

      6. No. 6.Vargas v. City of New York, Docket No. 03-7311, 2004.C02.0000835, ¶ 24, 377 F.3d 200 (2d Cir. 2004) (VersusLaw)

      7. No. 7. This document is at pp. A92–148 of the appendix I submitted to the Second Circuit.

      8. No. 8. This letter is at pp. A237–240.

      9. No. 9. This letter is at pp. A242–269.

      10. No. 10. Page 48 of Exhibit 45.

      11. No. 11. Page 44 of Exhibit 45.

      12. No. 12. Page 14 of Exhibit 44.

      13. No. 13.Abramovitch v. Board Education Central School District No.1 Towns Brookhaven and Smithtown, 1979.NY.40741, ¶ 23, 386 N.E.2d 1077, 46 N.Y. 2d 450, 414 N.Y.S. 2d, 109 (1979) (VersusLaw), reh’g denied 46 N.Y. 2d 1076, 416 N.Y.S. 2d, 1029, cert. denied 444 U.S. 845, 100 S. Ct. 89.

      14. No. 14From Kathy A. Ahearn, Esq., Counsel and Deputy Counsel for Legal Affairs of the State Education Department, addressed to Counsel to the Governor, dated August 2, 1994, pp. 4–7.

      15. No. 15. Board of Education of Carlsbad Municipal Schools v. Harrell, No. 20,856, 1994.NM.40160, ¶¶ 97, 98 118 N.M. 470, 882 P.2d 511 (N.M. 1994) (VersusLaw).

      16. No. 16. State of Alaska v. Public Safety Employees, No. 3642, File No. S-3291, 1990.AK.183, ¶ 40, 798 P.2d 1281 (Alaska 1990) (VersusLaw).

      17. No. 17. Thompson v. City of Louisville, et al. 362 U. S. 199 (1960)