From Andy Ostrowski–Corruption in Pennsylvania

When Justice Alito was still on the Third Circuit, he was on the panel before whom I appeared, and authored the an opinion in a case early in my civil rights career, I represented a man, David Chittister, who sued the Pennsylvania Department of Community and Economic Development for First Amendment retaliation and for violations of the Family Medical Leave Act.  The case was mentioned in his Supreme Court confirmation hearings –


The claim involved a scheme to circumvent an open political graft program (the “WAM” program for “Walking Around Money”) which Governor Tom Ridge eliminated as a campaign promise.  It was a significant factor in his election.  Upon the change in administration, the money earmarked for that program was funneled through a program managed by Mr. Chittister.  He denied the one-line requests for a few thousand dollars here and there for no programmatic purpose, and began to receive pressure to simply approve the requests.  He resisted, and was harassed, and ended up with the desk, chair, and phone, and no job duties, and was forced out.


Through some typically transparent chicanery of the federal district judge, Sylvia Rambo, of the Middle District of Pennsylvania, in service to the political establishment of the persuasion that prevails in central Pennsylvania, ended up dismissing the First Amendment claims on a Motion for Summary Judgment, and allowed us to proceed to trial on a claim under the FMLA.  There was nothing honest or just about it, and the claim was a very difficult one to make, for specific reasons I do not currently recall.


What these federal judges do in these civil rights/whistleblower/public corruption cases is engage in a process of “winnowing” the claims, through use of the Motion to Dismiss and Summary Judgment Motion, and then permitting cases to go forward on limited aspects of the overall claims, then using the lengthy summary judgment opinions as guides for limiting the evidence at trial, and then engineering jury verdicts through the creative use of special verdict questions.  In these cases, the jury rarely ever heard the full scope and essential nature of the cases, and adverse verdicts were often justifiable on the engineered record.


Well, despite the engineering of the trial judge, we got a verdict in our favor, and a modest award of damages and attorneys’ fees in Mr. Chittister’s case.


On post-trial motions, the Commonwealth raised the issue of whether it was immune under the 11th Amendment for damages under the FMLA.  I made the clear and simple argument that I believed compelled a favorable ruling on the issue – that, clearly, the states did not have 11th Amendment immunity under the FMLA.  Judge Rambo, of course, granted the motion, and threw out the verdict.


Both the First Amendment and the FMLA issues were appealed to the Third Circuit, and Justice Alito was on the panel.  The First Amendment/whistleblower issue was a no-brainer under the state of First Amendment public employee jurisprudence at the time.  Alito is cut from the same political establishment that prevails in Pennsylvania, and the First Amendment issue, which was my focus in the brief and at oral argument, was scarcely mentioned by the judges, and brushed off in the opinion.


Alito authored the published opinion, however, upholding the ruling that the Eleventh Amendment bars claims against the states under the FMLA.   My client was still ill, and near broke from the expense of the litigation, and the firm I was with, who were getting concerned with the political nature of the cases I was taking, would not commit to advance the costs for a Petition for Writ of Certiorari on an issue that I knew was a winner.  In a case not much later, the United States Supreme Court did accept a Petition on the identical issue, and decided in Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003).


In the interim, we filed a qui tam action under the federal False Claims Act, based upon the fact that the fraudulent use of the program administered by my client, which involved a few million dollars a year of federal grant money.


Based upon the US Supreme Court ruling in Hibbs, I filed a Motion to Open Judgment in the district court, asking that the verdict be reinstated because the Court at all times did have jurisdiction.  I believe I addressed the First Amendment issues as well.  Judge Rambo denied the Motion, and I filed an appeal to the Third Circuit.  Rambo’s Opinion had some threats directed at me, and an invitation for the Defendants to seek sanctions for something or other, which they did not follow through with.


In the Brief I filed with the Third Circuit, I placed a footnote wherein I carefully layed out the logic of my position that, consistent with my ethical duties, I had an obligation to inform my clients that there is corrupt decisionmaking in the federal courts.  I’ll have to dig out the document, and post the footnote.


I was about 37-38 at the time, and was very naïve to these issues, and I did not do this lightly or cavalierly.  I said it because I felt I had to, and trusted that it needed to be addressed.  We had a later oral argument scheduled on the matter, and I recall being very anxious that I was going to be taken to task on this point.  I was very apprehensive about it.


Not a word, however, was mentioned, and I never heard a word of the substance of that footnote since.  However, it was a couple months later where I had my first brush with the disciplinary authorities.  A young girl, 20 years old, who I was helping with some misdemeanor charges she was dealing with, asked me to write a letter to her mother telling her mother that she is no longer permitted to interfere in her daughter’s affairs, which I did.  The mother called me and told me that I was going to pay a heavy price for sending her that letter.


I had also taken over the representation of the young in an auto accident in which she was involved.  The girl got an additional charge for retail theft, and was forced by her circumstances to return to her mother for support.  While she was in jail for about 90 days, she sent me a letter with a couple questions about her injury case.  I was pursuing the case, but did not get back to her.  A disciplinary complaint was filed against me by the mother, and I received an informal admonition (got a discipline on my record) as a result.  They also settled the injury case out from under me, and stiffed me on my fees.


After Alito took his seat on the Supreme Court, he participated in 3 decisions, Garcetti v. Ceballos, Guarnieri v. Borough of Duryea, and Enquist v. Oregon Department of Agriculture, which severely curtailed the First Amendment protections of public employees, by saying when the unlawful conduct in which they are involved, or refuse to be involved, is part of their job duty, they do not have constitutional protections.  This would have ended the Chittister case if it was the law at the time, and me and my partner, Don Bailey were handling a lot of these types of claims.


The story of Don Bailey relating to Justice Alito, and how a $1.5 million verdict against, among others, Pennsylvania’s Attorney General, Mike Fisher, who is now a Third Circuit Judge sitting in the seat vacated by Alito, and the “shit storm” this caused, is told here –


To the point of this email, is this corruption?  How do we factor these things into the approach to reform we take?



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