Eleventh Circuit, U.S. Court of Appeal, Masters of Jugglery: Jurisdictional Challenge Converted To Summary Reversal Motion To Achieve Desired Outcome
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TABLE OF CONTENTS
ISSUE: Whether the Eleventh Circuit Had Jurisdiction of the Appeal?
Eleventh Circuit's Response to Jurisdictional Challenge
What Do You Know From Reading The Order?
Motion To Determine Jurisdiction
Case Cited By Eleventh Circuit Supports Appellant
Point of This Post
This post will document how the Eleventh Circuit, U.S. Court of Appeal, used jugglery to avoid an outcome that the facts and the law would have required. Jugglery is defined as manipulation or trickery especially to achieve a desired end. This matter concerns an appeal in the Eleventh Circuit, Case No. 01-13664 and District Court Case No. 99-14027-CIV-DLG, Judge Donald L. Graham, presiding. In this matter, the Eleventh Circuit converted a motion to determine jurisdiction that it must satisfy to a summary reversal motion that is discretionary. Having recharacterized the motion, the Eleventh Circuit, without citing any facts, simply said the summary reversal was not warranted. Simply put, the Eleventh Circuit refused to state why it had jurisdiction. This post is a part of the overall scheme to land a knockout blow to the American Bar Association's koolaid of "Judicial Independence". The ABA's emphasis is on "Judicial Independence" and it resists "interference" from outsiders-Congress of the United States, Layman review boards. The ABA has said: "There are checks on the judiciary and channels to correct improper decisions. The appeal process affords litigants the opportunity to challenge a judicial ruling." About Us - ABA Standing Committee on Judicial Independence. This is the idealistic and theoretical basis for "Judicial Independence"; however, the reality or actual practice does not equal the ideals. Suppose for a moment that such a system does not work. Federal Judges will take extreme measures to avoid disciplining a colleague federal judge. See Eleventh Circuit Case No. 01-13664: The Appeal From Hell for even more dishonest jurisprudence. Moreover, the Eleventh Circuit will do anything to achieve the desired outcome. Two posts at this site, mcneilmason.wordpress.com, document how the Eleventh Circuit will do anything to achieve the desired outcome as the Eleventh took two different and inconsistent positions with respect to the jurisdiction of the lower court or Judge Graham during the appeal of this very appeal. See Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal! and Putrid Dishonesty:Beyond the Scope of Appeal.
Premise
Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree, It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Insurance Company Of America, 511 U.S. 375 (1994). "The courts, no less than the political branches of the government, must respect the limits of their authority." Catholic Conf. v. Abortion Rights Mobilization, 487 U.S. 72 (1988).
ISSUE: Whether the Eleventh Circuit Had Jurisdiction of the Appeal?
The Appellant submitted a Motion To Determine Jurisdiction. The Eleventh Circuit and the U.S. Supreme Court has stated in case after case that a jurisdictional challenge maybe raised at any time. Moreover, both courts have stated that all courts are under an independent obligation to review its jurisdiction even if no party raises the issue. In this matter, rather than discuss why or why it did not have jurisdiction of the appeal the Eleventh Circuit converted the Motion To Determine Jurisdiction in to a motion for summary reversal. Having converted the motion into a summary reversal, a discretionary form of relief, the Eleventh Circuit, in a mere conclusory fashion simply asserted that the standards for a summary reversal were not met. Rather than construing the Motion To Determine Jurisdiction, a pro se motion, liberally to achieve substantial justice, the Eleventh Circuit construed the motion to achieve its own end.Eleventh Circuit's Response to Jurisdictional Challenge
On April 15, 2002, the Eleventh Circuit stated: "Appellant's "motion to determine jurisdiction," and "motion to determine subject matter jurisdiction and standing," which are construed as motions for summary reversal, and are DENIED." See Order Denying Jurisdiction.On May 17, 2002, the Eleventh Circuit stated:
"Appellant's motion for clarification is GRANTED, and this Court's April 15, 2002, Order clarified as follows: Appellant's motions, which were construed as motions for summary reversal, were denied because Appellant failed to meet the standards for summary disposition. See Groendyke Transport v. Davis, 406 F.2d 1158, 1162 (5th Cir.) cert. denied, 394 U.S. 1012, 89 S.Ct. 1628, 23 L.Ed.2d 39 (1969)."
See Order Granting Clarification.
Citing the Law and omitting the facts, an all too familiar tactic of the Eleventh Circuit, is that decisions are made with recitation to a court case with no recitation to the facts of the instant case
What Do You Know From Reading The Order?
This post was designed with the decision first for the purpose of accentuating the lack of information in decision not to discuss jurisdiction. Reading only the decision above, answer the following questions:
- Why does the Eleventh Circuit have jurisdiction?
- What is the law regarding jurisdiction on appeal?
- What are the facts that support the decision?
- Why did the Eleventh Circuit construe the motion to determine jurisdiction as a motion for summary reversal?
- Who benefited by construing the motion as a motion for summary reversal?
Law On Jurisdiction
"[T]he Supreme Court has ruled that "it is not proper for federal courts to proceed immediately to a merits question despite jurisdictional objections." In re Madison Guaranty Savings & Loan Association, 173 F.3d 866; 335 U.S. App. D.C. 327 (C.A.D.C. 1999)(citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998) (without proper jurisdiction, a court cannot proceed at all, but can only note the jurisdictional defect and dismiss the suit)"). "On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it." Steel Co., 523 U.S. at 94. See also UNITED STATES of America v. Mery GIRALDO-PRADO, 150 F.3d 1328 (11th Cir. 1998) ("We have noted that a party may raise jurisdiction at any time during the pendency of the proceedings.");
In a case involving Judge Graham, United States Of America v. Machado, No. 05-11420, D. C. Docket No. 97-00238-CR-DLG, 465 F.3d 1301pgs. 8,9 (11th Cir. 2006);2006 US App (11th) 398, the Eleventh Circuit held:We are aware, of course, that “subject-matter jurisdiction . . . can never be forfeited or waived” and “[c]onsequently, defects in subject-matter jurisdiction require correction regardless of whether the error was raised in district court,” United States v. Cotton, 535 U.S. 625, 630, 122 S. Ct. 1781, 1785 (2002); see also Arbaugh v. Y& H Corp., ___ U.S. ___, ___, 126 S. Ct. 1235, 1240 (2006) (“The objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.”). That principle is not, however, an exception to the requirements for appellate jurisdiction, and if those requirements are not met we cannot review whether a judgment is defective, not even where the asserted defect is that the district court lacked jurisdiction.
The Eleventh Circuit had a duty to not only review its own jurisdiction, but that of the lower court as well. Even if the neither the parties raise the issue of subject matter jurisdiction the Eleventh Circuit is required to do so on its motion or sua sponte. See ALFRED L. BOCHESE v. TOWN OF PONCE INLET, No. 04-11542, 405 F.3d 964 (11th Cir. 2005)("Although the parties have not raised the issue here, we are obliged to consider, sua sponte, the question of our subject matter jurisdiction to hear the case before us."), http://www.ca11.uscourts.gov/opinions/ops/200411542.pdf.
Federal courts are “obligated to inquire into subject-matter jurisdiction sua sponte whenever it may be lacking. "As a threshold matter, therefore, we must initially determine both whether the district court had subject matter jurisdiction to consider Williams’ Rule 60(b) motion and whether this Court has jurisdiction to review the district court’s denial of his motion.” WAYNE BERTRAM WILLIAMS v. BRUCE CHATMAN, No. 06-16115 (11th Cir. 2007),,(citing Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004)). "An appellate court has a duty to consider sua sponte whether appellate jurisdiction is properly invoked." John Andrew Mattingly v. Farmers State Bank, No.98-3234 (6th Cir. 1998), ELECTRONIC CITATION: 1998 FED App. 0262P (6th Cir.) File Name: 98a0262p.06 (citing Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 740 (1976)).
"When a colorable question exists, an appellate court has an unflagging obligation to inquire sua sponte into its own jurisdiction." Charlesbank Equity Fund Ii v. Blinds To Go, Inc., 370 F.3d 151 (1st Cir. 2004).
Construed or Screwed
"Federal courts sometimes will ignore the legal label that a pro se litigant attaches to a motion and recharacterize the motion in order to place it within a different legal category. They may do so in order to avoid an unnecessary dismissal, to avoid inappropriately stringent application of formal labeling requirements, or to create a better correspondence between the substance of a pro se motion’s claim and its underlying legal basis. " Castro v. United States (02-6683) 540 U.S. 375 (2003). “Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” United States Of America v. Pierre Castma , No. 07-13531 (11th Cir. 2005)(quoting Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006), cert. denied, 127 S. Ct. 1908 (2007)).See also United States Of America v. Gary William Holt, No. 04-15848, 417 F.3d 1172 (11th Cir. 2005)("noting that a pro se motion should be liberally construed to afford review on any “legally justifiable base”)(citing Sanders v. United States, 113 F.3d 184, 187 (11th Cir.1997) (per curiam) (noting that a pro se motion should be liberally construed to afford review on any "legally justifiable base")).The clear intent of liberal construction is for the benefit of the pro se litigant and not to the detriment of the pro se litigant. In this matter, the Eleventh Circuit construed a Motion to Determine Jurisdiction to motion for summary reversal. This "construction" or recharacterization was to the detriment of Mason. The Eleventh Circuit took a mandatory motion which required it to assert facts and law to support both its jurisdiction and that of the lower court. Had the Eleventh been unable to sufficiently support its jurisdiction and that of the lower court would have required a dismissal of the appeal. The Eleventh Circuit ran ahead to the finish line and saw who was going to win the race, consequently they changed the rules to guarantee the winner or outcome of the race. The Eleventh then construed the motion to determine jurisdiction into a motion for summary reversal which is a discretionary. Once the motion became discretionary, the Eleventh Circuit was free to avoid the outcome the facts would have demanded. It is difficult not to conclude that the rules were construed to achieve the desired outcome-vindication of Judge Graham.
Internal Operating ProcedureThe Eleventh Circuit's internal rules allows them to raise a
jurisdictional issue at their discretion.
11th
Cir. R. 31-1(e) (1999)states:
(e) Jurisdictional Question. If, upon review of the
district court docket entries, order and/or judgment appealed from, and the notice of appeal, it
appears that this court may lack jurisdiction over
the appeal, the court may request counsel and pro se
parties to advise the court in writing of their
position with respect to the jurisdictional question(s)
raised. The issuance of a jurisdictional question
does not stay the time for filing briefs otherwise provided by this
rule.
Motion To Determine
Jurisdiction
Appellant’s Motion To Determine Jurisdiction was submitted on or
about March 13, 2002. See
Docket and
Motion. This motion argued that the Eleventh Circuit did not have
jurisdiction of the appeal because the alleged violations of preliminary
injunctions, or
orders that were granted on
June 19, 2000, (DE
#201 ),
and July 25, 2000,
(DE
#246) were not lawful for the following reasons:
- Magistrate is without legal authority to issue an injunction or
a restraining order. pps. 3,5-6.
-
These orders are invalid because the Defendants
failed to file a complaint for an injunction or a restraining order.
pg.
- These orders failed to meet the requirements for a “temporary
Injunction" or "TRO". pg. 6,7.
Case Cited By Eleventh Circuit Supports Appellant
The Eleventh Circuit cited
Groendyke Transport v. Davis, 406 F.2d 1158, 1162 (5th Cir.) cert.
denied, 394 U.S. 1012, 89 S.Ct. 1628, 23 L.Ed.2d 39 (1969) for the
proposition that a "summary reversal" was not warranted. However,
Groendyke Transport actually supports Mason's or the Appellant
position. Firstly, Groendyke Transport, like the instant
case involved the question of the validity of an injunction. Groendyke Transport,
set forth two conditions that would warrant a summary disposal:
- "The first comprises those cases where time is truly of the
essence. This includes situations where important public policy
issues are involved or those where rights delayed are rights
denied."
- Second, are those in which the position of one of the parties is
clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case...
The where rights delayed are rights denied position favors Mason.
The injunctions issued in the instant case concerned First Amendment
rights. These injunctions prohibited direct communications with
the government. Secondly, one of the injunctions, (D.E. #246),
implicated Florida Public Record requests. It is well settled and
unremarkable that the "the loss of constitutional rights for even a
minimal amount of time constitutes irreparable harm."
See
Taubman Company v. Webfeats, 319 F.3d 770 (6th Cir. 2002).
More importantly, according to the Supreme Court: "The
loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury."
Elrod v.
Burns, 427 U.S. 347, 373 (1976); same 11th Cir.,
Cate v. Oldham, 707 F.2d 1176 (11th Cir. 1983)("It
is well settled that the loss of First Amendment freedoms for even
minimal periods of time constitutes irreparable injury justifying the
grant of a preliminary injunction.");
Gresham v. Windrush Partners, Ltd., 730 F.2d 1417 (11th Cir. 1984)("first
amendment rights violated sufficient to show irreparable injury because
loss of first amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury") .
The one of the parties is clearly right as a matter of law condition
favors Mason the appellant. The best argument in support of
the appellant is lack of legal citation or facts by the Eleventh Circuit.
More importantly, the law favored Mason because a Magistrate can not
issue an injunction. Assuming arguendo, a Magistrate could issue an
injunction, Mason would have prevailed because order fails to meet the 4
prong requirements for a preliminary injunction.
BACKGROUND
Marcellus M. Mason, Jr. of
Sebring, Fl. filed an employment discrimination lawsuit against
the Highlands County Board of County Commissioners and Heartland
Library Cooperative and other governmental entities and
individual government employees in February 1999. This
case was ultimately assigned to Judge Donald L. Graham and
Magistrate Frank Lynch Jr., Case No. 99-14027-CV-Graham/Lynch. After protracted litigation, the case was dismissed, not on the
merits of the case, but based upon banned and irrelevant out of
court constitutionally protected and legal communications between Highlands County and Mason. "R&R"
(D.E.
766), Order
adopting R&R (D.E
791). See
Banned Communications.
In June and July 2000, Maria
Sorolis and Brian Koji, Allen,
Norton & Blue asked the Magistrate to grant them
preliminary injunctions that required Mason to contact them
before he could talk to the government defendants. These
orders required Mason, a nonlawyer, living in Sebring, FL to
contact private attorneys some 90 miles away in Tampa, FL .
These orders were granted on
June 19, 2000 and July 25, 2000 in part stated:
“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.” (DE #201). This order is dated June 19, 2000,
“Plaintiff
shall correspond only with Defendants' counsel including any
requests for public records.”
(DE
#246).
“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.”
(
Judge Graham has expressly stated that the issuance of the injunctions by Magistrate Judge Frank Lynch, Jr. was not "clearly erroneous nor is it contrary to law."
See Docket Entry No. 407. However, Congress and the law disagree as the law expressly states that: "Notwithstanding any provision of law to the contrary— a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief...," 28 U.S.C. § 636(b)(1)(A).On March 2, 2001, Highlands County Board of County Commissioners
attorneys, Allen, Norton & Blue, filed a "DEFENDANTS' MOTION FOR SANCTIONS IN THE FORM OF DISMISSAL OF
PLAINTIFF'S ACTION AND SUPPORTING MEMORANDUM OF LAW". See
Docket Entry No.
511. This motion sought dismissal of the lawsuit due to
alleged out of court communications with the Highlands County Government in violation the
injunctions mentioned above,
Refusal To Cite Legal Authority
Judge Graham and his Magistrate, Frank Lynch, Jr. have repeatedly
refused to cite legal authority for these orders, (
Declines to Review on Interlocutory Appeal
The Eleventh Circuit declined to review the orders in question in Case No. 01-11305, an interlocutory appeal. On April 26, 2001, the Eleventh Circuit stated:
With regard to his requests for relief from the order granting the defendants' motions for preliminary injunction, which the court construed as a preliminary discovery motion, Mason has an alternative remedy. He may either comply with the district court's discovery order and challenge it on appeal from the final judgment, or refuse to comply with the order and challenge its validity if cited for contempt . See Rouse Constr. Int'l, Inc. v. Rouse Constr. Corp., 680 F.2d 743, 745 (11th Cir . 1982).
See Case No. 01-11305 Opinion.