U N I T E D STATES C O U R T O F APPEALS F O R T H E SECOND C I R C U I T

Thurgood MarshaU U.S. Courthouse 40 Foley Square, New York, N Y 10007 Telephone: 212-857-8500
MOTION INFORMATION S T A T E M E N T
Docket Nuinber(s):

14-4328

Capuoa Fuse short title]

Motion for: Reconsideration En Banc and Request to Vacate & Clarify Order of
Second Circuit with the Issuance of an Ethical Judicial Opinion, Or in the Alt.,

Washington v. William Monis Endeavor E n t et al. (10 Civ. 9647)

Motion to Stay Mandate Pending the Filing of Writ of Certiorari with the Supreme
Court of the United States.
Set forth below precise, complete statement of rehef sought:
Seeking extraordinary relief pursuant to the court's inherent powers, including but

..;c;

not linnited to: transfer of appeal, vacatur of all decisions rendered by P. Kevin
Castei and the American Arbitration Association, issuing disciplinary and

no
cn

monetary sanctions against William Morris and Loeb & Loeb LLP, including

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defauK judgment and disbarment of attorneys Michael P. Zweig, Christian

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V?

Cartx>ne and Michael Bamett.

MOVmtiiARTY:

Marcus Isaiah Washington

*Upiaintifr
] Appellant/Petitioner

OPPOSING P A R T Y :

William Morris Endeavor Entertainment et al.

^Defendant
| Appellee/Respondent

M O V I N G A T T O R N E Y : " ^ ^ " ^ ^ ' ^ ' " ^ Washington (pro se)

QPPQSING ATTORNEY:

^'"^^^^

^ ^ ^ " ^

[name of attorney, with firm, address, phone number and e-mail]

54 Boemm St., Apt. 6M

Loeb & Loeb LLP

Brooklyn, NY 11206
646-504-6497

345 Park Avenue., 18th Floor. New York, NY 10154

humanrights.areamust@gmail.com

Cotm-JudKe/ARencY appealed from: Southern District of New York

Please check appropriate boxes:
Has movant notified opposing counsel (required by Local Rule 27.1):
0

Y e s i l N o (explain):

Opposing counsel's position on motion;

I

I Unopposed ^Opposed
I Yes [ V i o l

mzweig@loeb.com

ccarbone@loeb.com

P. Kevin Castei
F O R E M E R G E N C Y MOTIONS, MOTIONS F O R S T A Y S AND
INJUNCTIONS PENDING A P P E A L :
Has request for relief been made below?
Yes
No
Has this relief been previously sought in this Court?
No
Yes
Requested return date and explanation of emergency: The 2nd Cir deliberately
wasted an add'l 4 months of my time by entmeously denying my appeal for

^Jon't Know

Does opposing counsel intend to file a response:

I

212-407-4000

lackfing] an arguable basis either In law or In fact" without providing an ethical

judicial opinion, and like Castei, ignoring daims of "fraud upon the Court." As a result,

hoa'i Know

I ask that this appeal be transferred to another circuit If not, 1 ask for the court to
explain its reasoning. If Motkin is denied without reason for a second time,
I ask that the Court stay the mandate and issue decision no later than April 1, 2015.

Is oral argument on motion requested?

Zlves I U N O

Has argument date of appeal been set?

Yes

(requests for oral argument will not necessarily be granted)

No If yes, enter date:

Si^ature of^ovfig'Aftomey:
yiovl iig Attorney:
Date:

Form T-1080 (rev. 12-13)

March 25, 2015

i
Sef^ice by: LJcM/ECF

|
lU Other [Attach proof of service]

No. 14-4328 CV
FOR THE SECOND CIRCUIT

C5

:'X.

c:.

MARCUS ISAIAH WASHINGTON,

Plaintiff-Appellant
V.

W I L L I A M MORRIS E N D E A V O R E N T E R T A I N M E N T , L L C ; formerly the W I L L I A M M O R R I S

A G E N C Y , JEFF M E A D E and S A R A H W I N I A R S K I ,
Defendants-Appellees

Appeal from the U.S. District Court

for the Southern District o f New York
No. 10 Civ. 9647 (PKC) (JCF)

APPELLANT'S E M E R G E N C Y MOTION FOR RECONSIDERATION EN BANC AND

REQUEST TO VACATE & C L A R I F Y MARCH 11, 2015 ORDER OF SECOND CIRCUIT WITH
THE ISSUANCE OF AN E T H I C A L JUDICIAL OPINION, OR IN T H E ALTERNATIVE,
MOTION TO STAY MANDATE PENDING T H E FILING OF A PETITION FOR WRIT OF
CERTIORARI WITH T H E SUPREME COURT OF THE UNITED STATES.

REQUEST TO TRANSFER APPEAL TO ANOTHER CIRCUIT.

Mr. Marcus Isaiah Washington

54 Boerum St. Apt. 6M
Brooklyn, N Y 11206
(646) 504-6497
humanrights.areamust(^gm ail.com
Pro Se Litigant

For the foUowmg reasons below, I - pro se Appellant Marcus Isaiah Washington - submit this Emergency
Motion for Reconsideration En Banc, or in the Alternative, Motion to Stay Mandate Pending the Filing of
a Petition for Writ of Certiorari with the Supreme Court to the United States Court of Appeals for the
Second Circuit seeking extraordinary relief under the court's inherent powers pursuant to Fed. R. App. P.
27(b), 40 and 41 to correct the legally erroneous decisions rendered by Second Circuit judges Dennis
Jacobs, Laura Taylor Swain, Raymond J. Lohier, Gerard E. Lynch, Peter W. Hall and Denny Chin,
Repubhcan appointed federal district judge P. Kevin Castei of the Southern District of New York and the
privatized, quasi-judicial forum known as the American Arbitration Association

("AAA").

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
V I I , NYSHRL and NYCHRL against my former employer and oldest talent agency in Hollywood William Morris Agency (now known as William Morris Endeavor Entertainment) - and two of the
company's Human Resources personnel, Jeff Meade and Sarah Winiarski (now known as Sarah Van
Hoven).2

On February 25, 2011, William Morris and their counsel 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 qualified Afiican Americans from its Agent, Coordinator and Agent Trainee positions. On July
20, 2011, Republican appointed federal judge enforced William Morris' arbitration agreement and pursuant

' The only iawfuiiy 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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to the "Delegation Provision" contained in the second arbihation agreement I signed, concluded that the
issue of arbitrability 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 that they
did not have jurisdiction to decide an interlocutory appeal and denied my appeal as "moot." On Jxme 15,
2012,1 filed a Demand for Arbitration with the American Arbitration Association. After both parties could
not mutually agree on an arbitrator, the A A A 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 Awai'd.
In or around the time Arbitrator David L. Gregory was scheduled to issue his "omnibus fmal
decision," I informed federal judge P. Kevin Castei by letter on February 28, 2014 that I would be filing a
motion which sought his disqualification, and would be addressing the overall "pattern" of "fraud upon the
Court" that attorneys from Loeb & Loeb LLP were engaging in on behalf of William Morris. At first, Castei
endorsed my letter and set a schedule in which the parties were to submit their pleadings. On March 7,
2014, Loeb & Loeb LLP attorney Christian Carbone submitted a letter to Castei stating that Arbitrator
Gregory's Partial Final Award was not a "fmaJ Award." On March 10, 2014, Castei 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, 1 submitted a voluminous, 97-page Fraud Upon the Court Motion, which
sought extraordinary relief, including the disqualification of both federal judges assigned to the case or the
disqualification of attorneys 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, Castei
issued an Order refusing to disqualify himself and stated that "[v]iewed as a totality, an objective,
disinterested observer fiilly informed of the imderlying facts would not entertain significant doubt that

^ Pursuant to 12 of the F A A this Motion was filed within 90 days of Arbitrator David L. Gregory's Partial Final
Award.

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justice would be done in this action absent recusal of the undersigned." On April 10, 2014,1 submitted a
33-page Motion for Reconsideration, which was nothing more than a condensed version o f my March 17,
2014 pleading.
After Timothy K. Lewis dismissed my case with "prejudice and on the merits" and awarded
William Morris $43,707.60 on June 25, 2013,'' the Appellees sought to confirm Lewis' "Final Award" on
July 3, 2014. On July 10, 2014, the Appellees submitted a Motion for Castei to issue a filing injunction
against me. On July 12, 2014,1 submitted a letter to Castei stating that the arguments raised m my March
17, 2014 and April 10, 2014 Motions "diametrically oppose[d] and void[ed] any 'legal' argument put forth
by WME Entertaimnent and Loeb & Loeb LLP" and that their motions should be denied.
On September 5, 2014, P. Kevm Castei issued his final Order ("Final Order") (Dkt. No. 59). Castei
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 o f 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 pattern of bad faith litigation warranting their removal
and sanctions."
[PKC Final Order, 14,] He additionally granted WiUiam Morris and Loeb & Loeb's July 10, 2014 Motion
for a Filing Injunction, revoked my 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
I
[

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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contravened public policy. (Dkt. No. 61) I f my motion seeking to correct this "miscarriage of justice" was
not granted, I asked Castei in the altemative, to restore my IFP status so that I could submit my appeal in
considerable "good faidi" to the appellate court. I included an updated, notarized Affidavit detailing this
information as an exhibit to my October 3, 2014 Fed. R. Civ. P. 60 Fraud Upon the Court Motion. See
Exhibit A. On October 22, 2014, P. Kevin Castei issued a two page Order, denying the entire Motion as
being "without merit" and refiising to restore my in forma pauperis status based on a statement made in the
footnote of my Motion. See Exhibit B.
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 Altemative, Vitiate
All Orders Rendered By P. Kevin Castei and the A A A Due to "Fraud Upon the Court" and "Fraud Upon
the 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 the legal arguments that
were raised in the last three Motions that were submitted to Castei 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.^ I f the case is not transferred, I ask that Lynch, Hall and

' Pursuant Fed. R. App. P. 8(a)(1)(C), a party must "ordinarily move first in the district court" for "an order
suspending...an injunction while an appeal is pending."^ Pursuant to Fed. R. App. P. 8(a)(2), a "motion for the relief
mentioned in Rule 8(a)(1) may be made to the court of appeals or to one of its judges." "The motion must (i) show
that moving first in the district court would be impracticable; or (ii) state that, a motion having been made the
district court denied the motion or failed to afford the relief requested and state any reasons given by the district
court for its action." Fed. R. App. P. 8(a)(2)(A) (emphasis added). The motion must also include: "(i) the reasons for
granting the relief requested and the facts relied on; (ii) originals or copies of affidavits or other sworn statements
supporting facts subject to dispute; and (iii) relevant parts of the record." Fed. R. App. 8(a)(2).
Fed. R. App. P. Rule 24(a)(1) directs that "a party to a district-court action who desires to appeal in forma pauperis
must file a motion in the district court" and states that the party must "attach an affidavit that: (A) shows in the detail
prescribed by Form 4 of the Appendix of Forms the party's inability to pay or to give security for fees and costs; (B)
claims an entitlement to redress; and (C) states the issues the party intends to present on appeal." In Rule 24(a)(5), it
states that "[t]he motion must include a copy of the affidavit filed in the district court and the district court's statement
of reasons for its action."
' 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 attorney 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.

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Chin be disqualified.' Regardless of who decides any aspect of this appeal, I ask that the finder of
remain "impartial" and "independent." 1 also ask the appellate court issue an ethical and objective
judicial opinion which discusses the arguments of both parties because this Motion - like the last three
that were submitted to P. Kevin Castei - demonstrates that despite the statements and judgments of P.
Kevin Castei, the American Arbitration Association, Timothy K. Lewis, Loeb & Loeb LLP, Michael
P. Zweig, Christian Carbone, etc., my appeal, i f need be submitted, would not be "frivolous" 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 "lack[ed] an
arguable basis either in law or in fact." See Exhibit C. Like Castei, the Second Circuit made no mention o f
my claims of "fraud upon the Court.""

Appellate Review of Motion Pursuant Fed. R. App. P. 27(b), 40 & 41.

Pursuant to Fed. R. App. P. 27(b), " A party adversely affected by the court's...action may file amotion 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 mamtain uniformity of
the court's decisions; or (2) The proceeding involves a question of exceptional importance." I f 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 instructs parties that the motion
"must show that the certiorari petition would present a substantial question and that there is good cause for
a stay."

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

Either In Fact or In Law."

' 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
Castei." [pg. 19.]
" 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 Castei, 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.
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Since the inception of tins case, federal judge P. Kevin Castei has issued five, one-sided Orders. Since I'm
limited to 15 pages, I focus on two particular areas to show why Castei and the Second Circuit's conclusions
are erroneous:

'

[P. Kevin Castei 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 only on one case - Michaels v. Mariforum Shipping, S.A., 624 F.2d 411, 414 (2d Cir. 1980).'-^
James Gaitis has pubhshed two informative and extremely insightfiil law articles on this t o p i c , a n d it is
clear that Michaels is not controlling.
It is well settled that "non-fmal arbihal decisions" and "interlocutory arbitial awards" (e.g.,
"Interim Decisions" and "Partial Final Awards") have been deemed reviewable by the federal court since
Michaels. 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 F.3d 16 (1st Cir.
2001) (an interlocutory arbitral determination on liabiUty could be immediately enforced by the district
court, even though the parties had only 'informally agreed' upon bifiircation).'''

In his summary of Michaels, he describes the case as "construing 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 'final,' 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.
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 fmal might nonetheless be subject to immediate judicial
review based on a finding o f 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 confirmafion); 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 o f 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 F A A which states that
an appeal can be taken from "an order... confirming or denying confirmation of an award or partial award." (emphasis
added)
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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
Castei, but he refused to do so because 1 was entering to the court with a favorable decision.' 1 have still
been luiable to fmd one case in which an arbitrator has vacated die Award of anotiier arbiti-ator and I know
this constitutes a violation of due process because Heather Santo of the A A A informed both parties that the
replacement arbitrator would not vacate any of Gregory's decisions. After Lewis was appointed, this was
the first thing Loeb & Loeb LLP moved for Lewis to do. Since Gregory's Award was reviewable by the
federal court, only the federal court had jurisdiction to confnm, modify and/or vacate his Award and
determine whether or not he should be disqualified. Since this did not happen, all decisions rendered by
Schnader LLP attorney Timothy K. Lewis should be vitiated and all monies received should be paid to me.
[P. Kevin Castel's Orders Never Discuss Claims that Loeb & Loeb L L P and its Attorneys Have
Engaged in a "Pattern" of "Fraud Upon the Court"] One of the issues that Castei never addressed m
his September 5, 2014 and October 22, 2014 Orders, were my claims that Loeb & Loeb LLP were engaging
in a "pattern" 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 summary o f Rowe:

Rowe and Arbifrator David L. Gregory's Interim Decisions Regarding "Exhibit 31":
The Second Circuit is familiar with Rowe Entertainment v. William Morris Agency et
al. (98-Civ-8272). While working on my third appeal, I came across an article written
by CNN tided "Corruption in Our Federal Courts,"'^ which discussed the fraud that
occurred in this case. In my fourth motion to the 2"'' Cir., I presented a copy of the
concealed document that Leonard Rowe found on the desk of his attorney Raymond
Heslin and was including as "Exhibit 31." See Exhibit D. In response, my motion was
returned to me by the Clerk of Court, Catherine O'Hagan Wolfe. In arbitration, I
demonstiated that Rowe's claims that his attorneys from Sonnenschein Nath &

'^ Although I asked for a bifurcated proceeding i f the arbitrator decided to enforce the arbitration agreements, the
Appellees misrepresented to Castei that a biflircated 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.
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 attorneys have engaged in a "pattern" of "fi-aud upon the Court" in order to prevent
racial discrimination claims against William Morris fi-om being decided by an impartial jury.
'* "Corruption In Our Federal Courts." December 30, 2011. http://ireport.cnn.com/docs/DOC-724105.
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Rosenthal LLP (now known as Dentons LLP) conspired with attorneys for the Booking
Agency Defendants" - Loeb & Loeb LLP and Weil Gotshal & Manges LLP - in an
unconscionable scheme to conceal any racial derogatory terms/smoking gun evidence
from being revealed were true. In Arbitiator Gregory's first Interim Decision, he asked
both parties to submit more infonnation about "Exhibit Bl's" authenticity and
relevance. In response to the parties June 15, 2013 submission. Arbitrator Gregory
admitted "Exhibit 3 1 " into die 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 refrieve the e-mails. This was important, because after each one of Rowe's
fonner attomeys submitted perjurious Declarations between May 14-15, 2012 saying
that "no derogatory tenns" 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 "full of hot air and paranoid suspicions."
Despite concluding that all of my legal arguments are "without 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
conduct." By refiising to acknowledge my claims of attorney misconduct, Castei 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.
Additionally, Castei nor the Second Circuit resolved the ethical issues that were created from
Christian Carbone's failure to disclose information about his marriage to an executive for the American

" 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 addhional 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 improperly
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 attorney for purported violations of professional
rules of ethics, can only be decided by the federal court, not arbitrators.^' Bidermann Industries Licensing. Inc. v.
AvmarN.V.. 570 N.Y.S.2d 33 (1st Dep't 1991); Northwestern Nat'l Ins. Co. v. Insco Ltd. 2011 W L 4552997 (S.D.
N.Y. 2011). This further supports that Castei 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
documenf and stated that Rowe's claims of "fraud upon the Court" were full of "hot air and paranoid suspicions."

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Arbitration Association,^^ bi my October 3, 2014 Motion to the Second Circuit, I asked for Christian
Carbone submit an Affidavit confinning and/or denying this infonnation since Castei 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 the Second Circuit also
made no mention of this issue in their March 11, 2015 Order. For more than a year, Carbone has been
allowed to remain silent about information that I would have had to reveal.-^"
Conclusion: There's absolutely no possible way an impartial and independent set of judges could reach the
conclusions that judges Jacobs, Swain and Lohier reached i f law was applied to the facts of the case. As
stated in my initial Motion, I had serious doubts concerning the Second Circuit's ability to remain unpartial
due to the fact that I was raising legal arguments that panel judges Lynch, Hall and Chin erroneously denied
four times when I sought to vacate Castel's July 20, 2011 Stay Order and disqualify both judges due to the
appearance and/or actual bias, prejudice and impropriety in favor of the Appellees and their counsel.

This Appeal Presents A Number of Issues of First Impression and an Ethical

Judicial Opinion Is Required Due to Unresolved Claims of "Fraud Upon the Court"
and Social Significance of Case.
Although there is a "strong federal policy favoring arbitration," there should be an even stronger federal
policy to eradicate racial discrimination, as well as other types of discrimination, throughout the American
workplace since Title "VII was a direct legislative byproduct of the black-led civil rights movement^^ and
the larger struggle of African Americans to live free from both invidious and institutional racism in
all areas of life in America.^ "Title V I I . . . is to be accorded a liberal construction in order to carry out the

^^ Days before filing my March 17, 2014 Fraud Upon the Court Motion, I learned 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 attorney 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. Attorney for the
Department of Justice. See Exhibit E . 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
Theory of Legislative History: New Perspectives on the Civil Rights Act and Its Interpretation. 151 U. Pa. L. Rev.
1417, (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

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purposes of Congress to eliminate the inconvenience, unfairness and humiliation of [unlawfiil]

discrimination." Baker v. Shiart Broadcasting Co., 560 F.2d 389, 391-92 (8th Cir. 1977). And the federal
court is "vested with the final responsibihty 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 Consti. Corp., 454 U.S. 461, 479 n.20 (1982) ("federal courts were entrusted with ultunate
enforcement responsibility" of Title VII).
At no time throughout this entire case has P. Kevin Castei, the A A A or the Second Cncuit
acknowledged diat my claims included intentional systemic disparate tieatment, disparate impact and prehiring individual disparate tieatinent.^^ Yet, in Castel's July 20, 2011 Stay Order, Castei stated that I "ha[d]
not shown that Congress intended to preclude arbitration for claims asserted under either Tide V I I or 42
U.S.C. 1981," but it's clear that 1 have and had Castei actually discussed legislative history and pubhc
pohcy goals of the statute, he would have realized that. [PKC Stay Order, 10.] Tide V I I expUcitiy states
that it is "unlawfiil" for an employer to:
"to fail or refiise to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment, because
of such individual's race, color, religion, 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, religion, sex, or national origin."
42 U.S.C. 2000e-2(a)(l), (2). Although the 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 tieatment, disparate impact,
pre-hiring individual disparate freatinent and violations of antitiiist law that cannot be disputed. It cannot
be disputed that fi^om 1898 to 1961, WilUam Morris had an explicit pohcy of not hiring Afiican 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 cannot be disputed that when 1 began employment at the New York office
in September of 2008, there were zero African American Agent Trainees, Coordinators or Agents

racism were part of the very fabric of the society, and ahhough 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 % pages and made it appear that my
claims only consisted of post-hiring individual disparate treatment.
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employed. See Exhibit F . It took 101 years for the first African American Agent Trainee to be promoted
to film 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 simated
white/"Jewish" counterparts in the Agent Trainee program, but they all advanced above me. See Exhibit
G. 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 alone estabUshes that I entered into a company that was
already violating Tide V I I of the Civil Rights Act of 1964.^^ 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 segregated by race and the culture is defmed along
racial lines, it cannot be disputed that many of my colleagues harbored implicit racial biases and as a result,
many of my evaluations were tainted by racial bias. Even in his March 10, 2015 Report issued in ChenOster, Magistiate Judge Francis was able to acknowledge the realities of discrimination in the American
workplace. He stated, " O f course, in any large organization, there will be some, perhaps many, instances
of discriminatory conduct, whether by supeivisors or by co-workers." Had the case remained 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."
It was clear from the beginning, that arbitration was an inappropriate form to achieve the public
policy goals of Tide V I I and that a case of this magnitude would reach the Supreme Court, therefore, it did
not matter what the decisions of the lower courts were. It did matter, however, i f my appeal was denied

The Appellees never met their heightened burden of production and persuasion. During discovery, they refused 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 any 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 rules [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
Ca, 62 F.3d 1128 (9th Cir. 1995).

- 11-

without explanation or discussion of my legal argrunents since I've spent a considerable amount of time
and energy studying the law and advancing these legal arguments in "good faith." What makes the actions
of this panel so disturbing and frustrating, is that this panel was comprised of two individuals of African
descent. They were in the best position to explain to me why A L L of my legal arguments were erroneous,
particularly those concerning the Civil Rights Act of 1964. Yet, they chose not to.
Since submitting my last pleading with the Second Circuit on December 15, 2014, a number of
things have happened socially that further support my claims of instimtionalized racism against Wilham
Morris and Hollywood, in addition to claims of the ehte law firm Loeb & Loeb LLP engaging in fraud. On
February 25, 2015, the LA Weekly published an in-depth article titled "How Hollywood Keeps Minorities
Out."^' See Exhibit H. One of the memorable quotes from the article include: "Hollywood's diversity
numbers are some of the worst of any industry." On that same day, UCLA professors Dr. Darnell Hunt and
Dr. Ana-Christina Ramon released their annual report on [the lack of] diversity throughout the segments of
Hollywood.^" See Exhibit I. These articles and reports buttress my systemic disparate treatment, disparate
impact, pre-hiring individual disparate treatment arguments, as well buttress my antitrust and conspiracy
claims by showing that this problem is institutionalized, systemic, pervasive and not limited to William
Morris. I also leamed that Loeb & Loeb LLP was representing a Dentons attomey involving claims of
"attorney fraud."^' And lastly, on [March 13, 2015], Leonard Rowe and his new legal counsel filed a new

Dennis Romero. How Hollywood Keeps Minorities Out. L A Weekly. Febmary 25, 2015.
http://www.laweekly.com/news/how-hollywood-keeps-minorities-out-5402815.
^ Dr. Damell Hunt and Dr. Ana-Christina Ramon. 2015 Hollywood Diversity Report. UCLA. Febmary 25, 2015.
http://www.bunchecenter.ucla.edu/wp-content/uploads/2015/02/2015-Hollywood-Diversity-Report-2-25-15.pdf
(In
discussion of the report's "highlights," the first highlight mentioned stated: "Constituting nearly 40 percent of the U.S.
population in 2013, minorities will become the majority within a few decades. Although minorities posted small to
modest gains in several Hollywood employment arenas since the last report, they remain underrepresented on every
front." Under the fifth "highlight" titled "Gatekeeping," it states: "Since the last report, the three dominant talent
agencies increased their combined shares of the film directors, film writers, film leads, broadcast scripted show
creators, broadcast scripted leads, and cable scripted leads credited for the theatrical films and television shows
examined. But despite modest gains in a few arenas, minority talent remained underrepresented on every front at the
dominant agencies")
Andrew Strickler. "Judge Slams 'Vitriol' In Dentons Estate Row." Law 360. February 17,
2015. http://www.law360.com/articles/622180/)udge-slams-vitriol-in-dentons-estate-malpractice-row. ("In denying
calls for sanctions against attomeys for Dentons partner Martin Rosen, Judge Rita Mella of the New York County
Surrogate's Court told his counsel from Loeb & Loeb LLP, and attomey Richard Yellen, who sought the sanctions, to
refrain from fiarther personal attacks in an ongoing dispute over a $13 million settlement between New York real estate
developer David Marx and the estate of Marx's former business partner. Jack Schleifer")

- 12-

complaint alleging fraud, racketeering and legal malpractice against his former counsel Wilhe Gary and the
Willie Gary Law Firm.
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-attorney.^^ "The act o f 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 mstance o f some more general theory or problem."^^ I f my
appeal truly "lack[ed] an arguable basis either in law or in fact," then how was Arbifrator Gregory 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 fiiU gamut of monetary damages? How was he also able to admit concealed evidence into the
evidence of record in my case and why hasn't that been mentioned by the district or appellate court? As
U.S. Article III federal judges of Afiican descent. Swain and Lohier were in the best position to explain
why William Morris is not, and has not, "violated federal, state, and local law prohibiting discrimination in
employment on the basis o f race" and why their historical pattem and practice of race-based exclusion is
irrelevant despite there being zero Afiican American Agent Trainees, Coordinators or Agents employed in
the New York office when I began when I began in September of 2008.

AJifya V. Curtin, Gerald Lebovitz & Lisa Solomon. Ethical Judicial Opinion Writing. The Georgetown Joumal 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.
William Domnarski. Judges Should Write Their Own Opinions, New 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."

-13-

To deny my appeal widiout resolving the issue of "fraud upon the Court" demonsfrates that the
panel is engaging in subjective, ideological decision-making. ^'^ Thus my appeal should be fransferred.
Based on all of the facts and circumstances, it is clear that Loeb & Loeb LLP should have never been
allowed to represent WiUiam Morris in this case and are being unjustly enriched from their highly unethical
and criminal conduct. By denying my meritorious appeal without explanation or discussion of both parties'
legal arguments, the Second Circuit is engaging in fraud in order to deprive me of my rights under the color
of law. Knowing that the Supreme Court accepts less than one percent of the petitions that are filed each
year, the Second Circuit issued an improvident decision in order prejudice my petition for a writ of certiorari
with the Supreme Court since 1 would be going into the Supreme Court with three whitewashed and onesided "fmal" decisions from the lower courts and the A A A all in favor of WiUiam Morris. Thus, for a
number of unjust reasons, this could very weU be my last real opportunity to challenge the erroneous
decisions of P. Kevin Castei and the A A A and the appeUate court should resolve the issues submitted.^^
By suppressing the truth and issuing a thoughtless Order, the Second Circuit has done a disservice
to our nation. 1 have been unemployed for nearly five years. My reputation and livelihood have been ruined.
I am living below the poverty level and am still living out of the two suitcases I moved to New York with.
Since pursing this case against WUliam Morris, I have spent more than $2,400.00 on various costs
associated with this litigation and now, I ' m so broke, that in order to submit this Motion, 1 had to borrow
money from family in order to purchase ink so that 1 could print out this Motion and pay for increased cost
of the Metiocard so that 1 could file diis Motion with the coiut.^*' The reality is, I shouldn't be living below
the poverty level right now. Like Arbitiator Gregory, I believe an impartial jiuy would have awarded me
back pay, front pay, compensatory & punitive damages and "reasonable fees and costs, as a pro se non-

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
Castei abused his power by issuing a filing injunction against me to prevent me from pursing claims. See e.g.,
Demjanjuk v. Petrovsky. 10 F.3d 338, 348 (6th Cir. 1993).
The Supreme Court is comprised of a 5 to 4 conservative. Republican appointed majority, so it is more than likely
that they would deny my meritorious petition like they denied the class of black concert promoters' petition in Rowe
Entertainment v. William Morris Agency on December 30, 2005.
'^ This month, my food stamps were discontinued and recently, my parents informed me that they will be reducing
my monthly allowance from $400/month to $100/month due to financial difficulties.

- 14-

attomey prevailing party on statutory claims in a case of considerable procedural and substantive
complexity." I also believe that in a separate case, an impartial jury would also conclude that William
Morris, Loeb & Loeb LLP, Michael P. Zweig and others have engaged in a "pattem" of "fraud upon the
j

Court" in order to prevent an impartial jury from hearing and deciding the merits of my claims.
This case presents a number of issues o f first impression and in my Application to Appeal In Forma
Pauperis, I included a number of questions that would be raised in my appeal. See Exhibit A?^ I f this
Motion is denied [widiout explanation], I ask the denial be issued no later than April
be stayed while I raise these issues with the Supreme Court.

and that the mandate

I have included some of the notes I made

over the last week. This document will ultimately serve as the foundation for my petition to the Supreme
Court should I have to file. See Exhibit J .

Conclusion
For the following reasons discussed above and throughout the last five pleadings submitted to the Southern
District of New York and Second Cfrcuit, I pray diat the appellate court vacates the March 11, 2015 Order
issued by panel judges Jacobs, Swain and Lohier and uses its inherent powers to either transfer the appeal
to another circuit or grant the extraordinary relief required to correct this extremes "miscarriage of justice"
once and for all.

'^ One of the most important issues that will be raised to the Supreme Court concerns the legality of restricting
individual litigants of employment discrimination cases from incorporating claims o f systemic disparate treatment and
disparate impact to prove discrimination based on race, color, national origin or any other protected characteristic. In
the March 10, 2015 Report and Recommendation of Magistrate Judge James C. Francis in Chen-Oster v. Goldman
Sachs, Inc., Case No. 10-6950 (S.D.N.Y.), refrising to recommend certification of the class of women alleging
systemic disparate treatment based on gender, he stated: "In a disparate treatment class action (though not in an
individual case), the plaintiffs may present evidence based on 'pattem-or-practice.'" Also, I will challenge the federal
court's refusal to apply antidiscrimination law within the framework of the Federal Arbitration Act to determine issues
of unconscionability and contract enforceability, since the Court has refijsed to explicitly resolve this issue and the
Seventh Circuit in O'Regan v. Arbitration Fomms. Inc. 246 F.3d 975 (7th Cir. 2001) had no problems doing so.
As a human being and American citizen of African descent, am I not justified in all of the actions that 1 have taken
to ensure that the public policy goals of Title V I I and the NYCHRL are upheld? Am I not justified in trying to ensure
that the this racist company 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. Am I engaging in bad faith for trying to ensure that the broader public policy
goals of Title V I I are upheld? 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 refuse to disclose to the
other party that his/her significant other is an executive at a privatized fomm his/her clients wants the federal court to
compel the case to?
- 15-

Dated: New York, New York

March 25, 2015

Respectfully submitted.

By:

V l u J ^ - ^ ^ b
Marcus I. Washington

54 Boerum St. Apt. 6M

Brooklyn, NY 11206
(646) 504-6497
humanrights. areamust(ggmail.

U N I T E D STATES COURT OF APPEALS F O R T H E SECOND CIRCUIT

CAPTION:

Marcus Isaiah Washington y

CERTIFICATE OF SERVICE
WiUiam Morris Endeavor Entertainment

Docket Number: 14-4328

L L C ; Jeff Meade and Sarah Winiarski

I,

Marcus Isaiah Washington

hereby certify under penalt>' of perjury that on
(name)
March 25, 2015
^ I ser\-ed a copy p f Appellant's Ex. Motion for Reconsideration
(date)

En Banc and Request to Vacate & Clarify March 11, 2015 Order of Second Circuit With the Issuance of An Ethical
(list all documents) Judicial Opinion, Or in the Altemative, Motion to Stay
Mandate Pending the Filing of a Petition for a Writ of
Certiorari with the Supreme Court of the United States.

by (select aU applicable)*

[ Z ] United States Mail

1 Federal Express
1 Overnight Mail
I I Facsimile
CZH E-mail
I I Hand deliver}'

ro
cn

- ,
CO
CO

on the following parties (complete all information and add additional pages as necessary):
Michael P. Zweig

345 Park Avenue, 18th FL

New York

NY

10154

Name

Address

Qty

State

Zip Code

Name

Address

City

State

Zip Code

Name

Address

City

State

Zip Code

Name

Address

Cit>'

State

Zip Code

March 25, 2015

Today's Date

Signature

*If different methods of service have been used on different parties, please indicate on a separate
page, the type of service used for each respective party.

Certificate of Service Form