Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal!
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Point of This Post
The Purpose of this post is to set forth yet another extreme measure that the Eleventh Circuit deployed in order to conceal and shield U.S. Dist. Judge Donald L. Graham from public rebuke and scrutiny. The law clerks or staff attorneys who decide cases at the Eleventh Circuit, U.S. Court of Appeals are making a joke and a mockery of our legal system. This posting discusses a single element of the Eleventh Circuit's, U. S. Court Appeal Case No. 01-13664-A, an unpublished opinion. This is appeal has been described as: Eleventh Circuit Case No. 01-13664: The Appeal From Hell. This appeal, Case No. 01-13664-A, is loaded with the stench of dishonesty and lawlessness; however, this post will only analyze the single issue of jurisdiction of the lower court, trial court, or district court during the appeal. This posting will show that the Eleventh Circuit used an unpublished opinion to get the desired outcome, affirming Judge Graham, notwithstanding the law and the facts. The Eleventh Circuit took for itself the right to maintain two irreconcilable, inconsistent, and illogical legal positions. First it rightly claimed that an order, pre-filing injunction, rendered on September 20, 2001, Doc. 878, or three months after the notice of appeal was filed on June 25, 2001 was beyond the scope of appeal . See post, "Putrid Dishonesty:Beyond the Scope of Appeal". Secondly, the inconsistency arose when the Eleventh Circuit rendered its opinion in October 2002, it then used the very same pre-filing injunction, rendered on September 20, 2001 that it claimed was beyond the scope of appeal to affirm Judge Graham. The Eleventh Circuit had it both ways. The reason for this inconsistency is that the Eleventh Circuit badly needed this order included in order to make a finding pursuant to Rule 41(b), Federal Rules Civil Procedure.
The icing on the cake and even worse and more dishonest than the taking of two inconsistent legal positions is the fact that the pre-filing injunction, rendered on September 20, 2001, Doc. 878, is actually illegal. At page 3 of the pre-filing injunction of September 20, 2001, Doc. 878, it expressly states: "THIS CAUSE came before the Court sua sponte. " Sua Sponte issued pre-filing injunctions, or pre-filing injunctions issued without notice and opportunity to respond are routinely rejected as a matter of course. Pre-filing injunctions implicate the right of access to the courts, even Teflon Don recognizes this fact. See pg. 7, Doc. 878, ("This screening requirement best balances the interest in constitutionally mandated access to the federal courts with the need to protect the Court's jurisdiction and integrity."). Judge Graham is expressly rejecting the authority of the United States Supreme Court who has said on multiple occasions that the right of access to the courts is constitutionally protected and requires due process before that right is abridged or restrained in any manner.
Recap
The Eleventh Circuit, using the device of an unpublished opinion, did the following:
- It declared the sua sponte issued pre-filing injunction of September 20, 2001 beyond the scope of appeal and struck Mason's appellate brief because of it in March 2002. See post, "Putrid Dishonesty:Beyond the Scope of Appeal".
- On October 16, 2002, when the Eleventh Circuit rendered its unpublished opinion, it then included the sua sponte issued pre-filing injunction of September 20, 2001 in its decision.
- The Eleventh Circuit used a clearly invalid sua sponte issued pre-filing injunction to justify its goal of affirming Judge Graham.
A US Circuit Judge On the Potential Dangers of Unpublished Opinions
“If, for example, a precedent is cited, and the other side then offers a distinction, and the judges on the panel cannot think of a good answer to the distinction, but nevertheless, for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated, unpublished opinion, and no one will ever be the wiser. (I don't say that judges are actually doing this--only that the temptation exists.) Or if, after hearing argument, a judge in conference thinks that a certain decision should be reached, but also believes that the decision is hard to justify under the law, he or she can achieve the result, assuming agreement by the other members of the panel, by deciding the case in an unpublished opinion and sweeping the difficulties under the rug. Again, I'm not saying that this has ever occurred in any particular case, but a system that encourages this sort of behavior, or is at least open to it, has to be subject to question in any world in which judges are human beings.” 1 J. App. Prac. & Process 219 (1999). UNPUBLISHED OPINIONS: A COMMENT, Richard S. Arnold, Copyright © 1999 University of Arkansas - Little Rock School of Law ; Richard S. Arnold.
The Opinion
The Eleventh Circuit rendered its opinion in Case No. 01-13664 on October 16, 2002. The Opinion makes the following "finding":
Moreover, despite the closure of the case by the district court, Mason's continual filing of motions with the court addressing matters previously settled prompted the district court to prohibit Mason from further filings without explicit permission and initiate criminal contempt proceedings. Therefore, the record supports the district court's implicit finding that a sanction less than dismissal of the action with prejudice would have had no effect.
See Opinion, pgs. 13-14.
This finding is a direct reference to a pre-filing injunction or vexatious litigant injunction rendered by Judge Graham on September 20, 2001. See below.
The Sua Sponte Issued Pre-Filing Injunction
Plaintiff Marcellus M. Mason is Permanently enjoined
from filing any additional pleadings in case numbers 99-14027- CIV-GRAHAM, 00-14116-CIV-GRAHAM, 00-14201-CIV-GRAHAM, 00-14202- CIV-GRAHAM, 00-14240-CIV-GRAHAM, 01-14074-CIV-GRAHAM, 01-14078- CIV-GRAHAM, and 01-14230-CIV-GRAHAM or from filing any new lawsuit which relates in any way to Plaintiff Marcellus M. Mason's former employment and/or subsequent interactions with Defendants without first receiving permission from the Court, as set forth below. This injunction shall apply equally to any persons or entities acting at the behest, direction, or instigation, or in concert with Marcellus M. Mason.
See Doc. 878, pg. 8.
Law On Jurisdiction During Appeal
According to the published decisions of the Eleventh Circuit: "It is
the general rule of this Circuit that the filing of a timely and
sufficient notice of appeal acts to divest the trial court of
jurisdiction over the matters at issue in the appeal, except to the
extent that the trial court must act in aid of the appeal."
SHEWCHUN v. United States, 797 F.2d 941 (11th Cir. 1986). "It is
well-settled law that the filing of a notice of appeal divests the
district court of jurisdiction over a case."
WEAVER v. FLORIDA POWER & LIGHT COMPANY, 172 F.3d 771,(11th Cir. 1999)(citing
Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct.
400, 402, 74 L.Ed.2d 225 (1982)). "The general rule regarding
divestiture of jurisdiction, however, does not apply to collateral
matters not affecting the questions presented on appeal." id.
"The district court's exercise of jurisdiction should not "materially alter the status of the case on appeal." Mayweathers v. Newland , 258 F.3d 930 (9th Cir. 2001).
Given the above definition, if the sua sponte issued pre-filing injunction, Doc. 878, is involved in the appeal then Judge Graham would not have jurisdiction to enter an order pertaining to "questions presented on appeal". At pages 13, 14, of the opinion the sua sponte issued pre-filing injunction was clearly involved in the appeal as it used to justify a dismissal of the case under Rule 41(b), Fed.R.Civ.P.; Consequently, Judge Graham was without jurisdiction to render the order. You can't on the one hand argue that an order, the sua sponte issued pre-filing injunction of September 20, 2001 is a "collateral issue" and beyond the scope of appeal on March 6, 2002, and then turnaround on October 16, 2002 and include the very same sua sponte issued pre-filing injunction of September 20, 2001 to affirm Judge Graham. Incidentally, as documented below the sua sponte issued pre-filing injunction of September 20, 2001 is clearly invalid.
Subsequent Decisions are Equally Dishonest
A petition for mandamus was filed on or about April 19, 2004. On May 20, 2004, the Eleventh Circuit stated:
In Mason's case, he filed a notice of appeal as to the dismissal of his civil case. The September 20, 2001 order did not relate to the issue on appeal, but instead enjoined Mason from filing any further pleadings in the district court without permission. Because the order related to collateral issues, the district court had jurisdiction to issue it.
How can an issue, the sua sponte issued pre-filing injunction of
September 20, 2001, be a "collateral issue" and used in the opinion at
the same time? If it is a
"collateral issue" then how it an integral part of the appeal and the
opinion at the same time as demonstrated above?
See
Opinion Case No. 04-11894. Incredibly, this "opinion" makes the
following admission:
This Court granted, in part, the appellees' motion to strike Mason's brief, holding that the portions of the brief that related to the September 20, 2001 order were beyond the scope of appeal.
This type of dishonesty simply cannot be tolerated in a free society as it is offensive and insulting.
Quick Facts
This appeal was docketed under Eleventh Circuit Case No. 01-13664. The Notice of Appeal was filed on June 27, 2001. See Docket No. 795. This was an appeal from a Rule 41(b), Fed.R.Civ.P. dismissal by Judge Graham in district court Case No. 99-14027-CIV-Graham/Lynch. Judge Donald L. Graham, "Teflon Don", failed to make the explicit finding that "lesser sanctions would not suffice". Incidentally, Judge Graham's colleague at the S.D. Fla., failed to make the same finding that "lesser sanctions would not suffice" but was reversed by the Eleventh Circuit. See posting this site, “Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal
On June 20, 2000, Federal Magistrate Frank Lynch Jr. issued the
following order:
[I]t is hereby ORDERED AND ADJUDGED that
Defendants' Motion for Preliminary Injunction is GRANTED...Plaintiff
shall be prohibited from contacting any of the Defendants,
including their supervisory employees and/or the individual Defendants,
regarding any matter related to this case." See
Docket Entry No. 201
On July 25, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:
ORDERED AND ADJUDGED that Defendants' Renewed Motion for Preliminary Injunction is GRANTED... Plaintiff shall correspond only with Defendants' counsel including any requests for public records." See Docket Entry No. 246.
Highlands County asked and got Judge Graham to dismiss a lawsuit
because of alleged violations of these orders, which Mason contended on
appeal, were illegal. (For a completely different story and more
dishonesty see how the Eleventh Circuit was willing to discuss Mason's
alleged violations of these orders while steadfastly refusing to review
these very orders for validity, see posts, "Eleventh
Circuit Repeatedly Refuses To Review Orders For Validity" and "A
Federal Magistrate May Issue An Injunction So Long As He Does Not Call
it An Injunction " Highlands County filed two motions for sanctions
in the form of dismissal of the plaintiff's lawsuit. Docket Entry Nos.
511 and
646. These motions depicted out of court communications between
Highlands County and the Plaintiff, Marcellus Mason. Judge Graham and
his Magistrate granted these motions and dismissed the case on June
20, 2001. See Docket Entry Nos.
766 an and
791.
The following alleged out of court lawful communications were used to
dismiss the lawsuit.
- "They claimed that, during the week of 5 February 2001, Mason had demanded to view his personnel file from Highlands County's Human Resource Director Fred Carino, a named defendant in the case." See Opinion, pg. 4.
- They stated that, on 13 and 14 February 2001, Mason also appeared at Carino's office and demanded to view the billing records for Highlands County's attorney and Highlands County's liability insurance documents. See Opinion, pgs. 4-5.
- They attached a copy of an e-mail apparently sent by Mason in which he explained that he would file a criminal complaint against Carino if he was denied any requested documents and expressed his belief that the county had "waived" its rights under the Orders as a result of Carino's conversations with Mason and letter. See Opinion, pg. 5.
- On 6 April 2001, Heartland again moved for sanctions in the form of dismissal because Mason had “repeatedly personally contacted [by e-mail] supervisory employees and/or individual Defendants” in the case since the magistrate judge's 27 March order. See Opinion, pg. 6.
Legal Requirements For a Fed.R.Civ.P. 41(b) Dismissal
The Eleventh Circuit "has clearly stated that because dismissal is considered a drastic sanction, a district court may only implement it, as a last resort, when: (1) a party engages in a clear pattern of delay or willful contempt (contumacious conduct); and (2) the district court specifically finds that lesser sanctions would not suffice." World Thrust Films v. International Family Entertainment, 41 F. 3d 1454 (11th Cir. 1995). "A district court has authority under Federal Rules of Civil Procedure 41(b) to dismiss actions for failure to comply with local rules." id.. "Although we occasionally have found implicit in an order the conclusion that "lesser sanctions would not suffice', we have never suggested that the district court need not make that finding, which is essential before a party can be penalized for his attorney's misconduct." Mingo v. Sugar Cane Growers Co-op of Florida, 864 F.2d 101, 102 (11th Cir.1989) (citations omitted). This court has only inferred such a finding "where lesser sanctions would have "greatly prejudiced' defendants."The Opinion
The Opinion makes the following "finding":Moreover, despite the closure of the case by the district court, Mason's continual filing of motions with the court addressing matters previously settled prompted the district court to prohibit Mason from further filings without explicit permission and initiate criminal contempt proceedings. Therefore, the record supports the district court's implicit finding that a sanction less than dismissal of the action with prejudice would have had no effect.See Opinion, pgs. 13-14. This finding is a direct reference to a pre-filing injunction or vexatious litigant injunction rendered by Judge Graham on September 20, 2001. See below. --------------------SCOPE OF APPEAL LINE JUNE 25, 2001------------------------------- -----------------BEYOND THE SCOPE OF APPEAL LINE JUNE 26,2001----------------------- =====================================================================