Eleventh Circuit Uses Unpublished Opinion and Omission(Deception) To Invoke Res Judicata

Justice Turned On Its Head

Judge Donald L. Graham, The “Teflon Don”

Introduction and Point of this Posting

The Eleventh Circuit uses truisms ,”an undoubted or self-evident truth;” to mislead the reader and the general public. Unpublished decisions play to ignorance owing to the judges total control of the facts and unfettered ability to report and manipulate those facts. This posting will take an unpublished opinion, Eleventh Circuit Case No. 02-13418, and compare it to published opinions of the Eleventh Circuit. This posting will also analyze a case of Judge Donald L. Graham and Magistrate Frank Lynch, Jr., CASE NO. 01-14310-CIV-GRAHAM. See Report and Recommendation,”R&R”, and Order Adopting R&R. This posting will demonstrate how the Eleventh Circuit can take two different cases with the same material facts and reach different outcomes by intentionally omitting material facts in the unpublished opinion. In Pleming v. Universal-Rundle Corp., 142 F.3d 1354 (11th Cir. 1998), U.S. Dist. Judge Marvin H. Shoob, Northern District of Georgia, a part of the Eleventh Circuit, was reversed on appeal for the same set of facts that Judge Graham was affirmed. Judge Shoob was victimized by a published decision while Judge Graham’s actions were saluted with an unpublished opinion. Others Judges in the Eleventh Circuit and particular judges at the Southern District of Florida have suffered reversals in published opinons for the same set of facts that Judge Graham has been affirmed for. Judges Daniel T.K. Hurley ,Ursula Ungaro-Benages, and William P. Dimitrouleas have suffered similar fates. See posts this site, “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge“, ““Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal“, “U.S. Dist. Judge William P. Dimitrouleas Reversed While Colleague Judge Donald L. Graham Affirmed by Killing The Appeal“.

This posting documents a type of dishonesty that is breathtaking and antithetical to American values. Additionally, this posting is yet but another example of why Judge Graham is truly the “Teflon Don”. Nothing sticks 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A US Circuit Judge On the Potential Dangers of Unpublished Opinions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

Judicial Misconduct

A new feature of this blog will be describing conduct that is not considered judicial misconduct in the hopes that the law will change. This posting will demonstrate that federal judges can intentionally misstate or omit material facts with the sole purpose of deceiving and still not be considered guilty of judicial misconduct because it is ““directly related to the merits of a decision or procedural ruling”. Chief Judge J.L. Edmondson, Eleventh Circuit, has specifically held that intentionally misstating material facts is not misconduct. Judicial Misconduct Complaint #05-0020.

Prior Lawsuit

The cases discussed here rely upon a previous case heard by Judge Graham, Case No. 99-14027-CIV-Graham/Lynch. This case was filed on February 4, 1999. See Docket. The February 4, 1999 date is critical for res judicata purposes. This was an employment discrimination lawsuit based upon Marcellus Mason’s termination by Highlands County Board of County Commissioners and Heartland Library Cooperative in November 1998. The case was dismissed, not on the merits of the case, but based upon banned and irrelevant out of court communications between Highlands County and Mason. See Report and Recommendation,”R&R” (D.E. 766), Order adopting R&R (D.E 791). This case was an involuntary dismissal pursuant to Rule 41(b), Fed.R.Civ.P. due to Mason’s alleged violations of the following orders in this case on June 19, 2000, (DE #201), and July 25, 2000, (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.”

( 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.”

(DE #246). This order is dated July 25, 2000.

Incidentally, Mason has maintained that these orders are invalid because they violate the First Amendment, Tenth Amendment, and Magistrate’s Act, 28 U.S.C. § 636(b)(1)(a)(Magistrate may not issue an injunction); however, the Eleventh Circuit has declined to review these orders for validity on multiple occasions. See posting, Eleventh Circuit Repeatedly Refuses To Review Orders For Validity. In a later filed lawsuit, Judge Graham’s Magistrate admitted: the court “dismissed the remaining claims on their merits as sanction for the continued communication of antagonistic emails directly to the defendants in contempt of this Court’s orders“, Case No. 01-14310, (DE #79).

Judge Graham could have decided the case on the facts but he didn’t. On June 20, 2001, when Judge Graham dismissed this case, both the Plaintiff and the Defendants had summary judgment motions pending that the district court failed to act on. (DE # 507); (DE # 667); (DE# 668); (DE # 706);(DE # 797);(DE # 769);(DE # 770);(DE #785). See Complete Docket Listing.

Unpublished Opinion

This post will present yet another example how an unpublished decision is used to undermine or overrule binding precedent in a published decision. Unpublished opinions are typified by the following:

• Enough facts to support the opinion.
• Pertinent and material facts are omitted
• Relies heavily upon law and scant facts.
• General statement of facts that support the decision that are not specific to the case.
• Uses true statements that are misleading.

In order to graphically illustrate the point before reading the rest of this posting’s material facts, the reader is challenged to read the opinions where Judge Graham and the Eleventh Circuit applied res judicata and then read the rest of this posting. See Case No. 01-14310, (DE #79) and Case No. 02-13418

Definition of Res Judicata

“Res judicata is a doctrine of claim preclusion which operates to prevent litigation of matters that were raised or should have been raised in an earlier suit.” McKINNON v. BLUE CROSS & BLUE SHIELD OF ALA., 935 F.2d 1187 (11th Cir. 1991).

The doctrine of collateral estoppel, or issue preclusion, bars relitigation of an issue of fact or law that has been litigated and decided in a prior suit. See McKINNON, above. ” Issue preclusion (Collateral estoppel): Once an issue of fact has been determined in a proceeding between two parties, the parties may not relitigate that issue even in a proceeding on a different cause of action. (Scenario: P sues D on C. P sues D on C1. Element E, which was determined in the first trial, is common to C and C1. At the second trial, P and D cannot attempt to get a different disposition of E.)” Legal Information Institute.

Law On Res Judicata

“Res judicata bars the filing of claims which were raised or could have been raised in an earlier proceeding. ” RAGSDALE v. RUBBERMAID, INC., RUBBERMAID COMMERCIAL PRODUCTS, INC., 193 F.3d 1235 (11th Cir. 1999). “[R]es judicata does not bar claims that did not exist at the time of the prior litigation.” United Transportation Union 946 F.2d 1054 (4th Cir. 1991). “It is well settled that res judicata bars subsequent actions on all grounds for recovery that could have been asserted, whether they were or not.” PALOMAR MOBILEHOME PARK ASSOCIATION v. CITY OF SAN MARCOS, 989 F.2d 362 (9th cir. 1993). Because “res judicata bars the filing of claims which were raised or could have been raised in an earlier proceeding,” relevant in this analysis is when the facts arose. TRUSTMARK INSURANCE COMPANY, v. ESLU, INC., 299 F.3d 1265;2002 U.S. App. LEXIS 15500;15 Fla. L. Weekly Fed. C 861 (11th Cir. 2002). In Pleming v. Universal-Rundle Corp., 142 F.3d 1354 (11th Cir. 1998), (quoting Manning v. City of Auburn, 953 F.2d 1355, 1358 (11th Cir.1992)) the Eleventh Circuit held:

[W]e do not believe that the res judicata preclusion of claims that “could have been brought” in earlier litigation includes claims which arise after the original pleading is filed in the earlier litigation. Instead, we believe that, for res judicata purposes, claims that “could have been brought” are claims in existence at the time the original complaint is filed or claims actually asserted by supplemental pleadings or otherwise in the earlier action.

True Statements That Are Dishonest

Eleventh Circuit Case No. 02-13418, Dist. Ct. Case No. 02-14049.
The Eleventh Circuit used true statements that are misleading. For example, each of the following assertions in the “opinion” are true:

• Res judicata bars Mason’s employment discrimination claims against the county. Under res judicata, “a final judgment on the merits bars the parties from re-litigating a cause of action that was or could have been raised in that action.
• Penalty dismissals under Federal Rule of Civil Procedure 41 (b) are considered to be a final judgment on the merits.
• In several previous lawsuits, including 99-CV-14027, Mason claimed Highlands County engaged in race discrimination. The district court dismissed 99-CV-14027 under Rule 41(b) because of Mason’s continual disregard for the court’s orders and rules.
• This court affirmed the Rule 41(b) penalty dismissal of 99-CV-14027 in Mason v. Heartland Library Cooperative, 01-13664 (11th Cir. October 16, 2002).
• Therefore, because a final judgment on the merits has been previously rendered on his race discrimination claims against Highlands County, res judicata bars Mason’s re-assertion of those claims.

See Opinion, Case No. 02-13418
The above statements are designed to lead the reader and the American public to the same conclusion as the Eleventh Circuit. The statements are dishonest and misleading because the reader has no idea when the claims or cause of actions arose or accrued. The material facts that are omitted is that the former lawsuit, Case No. 99-14027, a wrongful termination case, was filed in February 1999 due to a termination in November 1998. See above. This lawsuit was a failure to hire case after the termination in November 1998. Mason applied for a job as a Budget Technician in November 1999. The EEOC issued the Notice of Right To Sue on March 30, 2000, # 150 A0 1181. See Complaint, (DE #1). Consequently, it is absurd and impossible to have filed this claim on February 1, 1999, when it did not exist. The Eleventh Circuit in two similar cases, Pleming v. Universal-Rundle Corp., 142 F.3d 1354 (11th Cir. 1998) and Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992), have rejected this nonsense. In Pleming, the court rejected res judicata based upon the following facts:

Pleming’s first lawsuit claimed that Universal-Rundle discriminated against her when the company hired a less qualified white employee for a specific clerical position in July 1993. Pleming did not learn that the company had engaged in alleged further discrimination against her by filling two subsequent administrative openings in October 1994 without considering her, until May 1995, during the conduct of discovery in the first lawsuit. Pleming’s first complaint, therefore, contained no mention of these subsequent hiring decisions and Pleming did not amend her complaint to include them.

In Manning, the Court stated: “Manning’s August 1988 dismissal from Hammock can not bar her claims for discriminatory acts occurring after that date.”

Judge Graham Uses Truisms To Deceive In Case No. 01-14310-CV-Graham

Marcellus Mason applied for a job with Highlands County as a Sign Technician in early 2001. Since Highlands County did not interview Mason or hire him, Mason filed a failure to hire and retaliation claim with the Equal Employment Opportunity Commission, “EEOC”. On March 28, 2001, EEOC the Notice of Right To Sue, NRTS, issued 9-6-01, #150A13119. This action was filed in state court on or about October 4, 2001 under Case No. GC-00-269, removed October 19, 2001. In order to apply res judicata, Teflon Don and his Magistrate Frank Lynch, Jr. resorted to truisms and general statements that omit material facts. Given the material facts, there is no way res judicata could apply. However, to get around the specific facts, Judge Graham asserts the following statements and truisms to justify res judicata:

• the court “dismissed the remaining claims on their merits as sanction for the continued communication of antagonistic emails directly to the defendants in contempt of this Court’s orders (DE 766)
• This Court notes that the factual allegations on which the Plaintiff bases his federal law claims stem from his initial termination of employment. For example, the Plaintiff alleges that Highlands County’s refusal to re-hire him was an act of retaliation and/or an act of discrimination.
• In support of these allegations, the Plaintiff makes reference to Highlands County’s alleged discriminatory behavior around the time of his prior employment and termination. Indeed, the underlying termination is fundamental to the Plaintiff’s civil rights claims.
• This is especially so in light of the fact that the Defendants raise his discharge for wrongful conduct and the disciplinary action of permanent removal as a non-discriminatory, legitimate ground for the refusal to re-hire.
• The issue of whether the termination was lawful has already been litigated in this court, and such claims were dismissed with prejudice with the right to appeal.
• Therefore, the federal claims raised in the instant case are barred by the doctrine of res judicata for arising from the same nucleus of operative facts and relying on the same factual predicate of the prior litigation.
• The principle of res judicata also leads to a sensible result in light of the Plaintiff’s legal arguments. After one’s prior termination has been decided in the employer’s favor, it is convoluted logic to argue that the employer’s refusal to re-hire the former worker was the result of unlawful discrimination. To rule otherwise would render meaningless any judicial finding of lawful discharge. Certainly, the protections afforded under Title VII are not meant to enable unappeased litigants to bring recurrent litigation against former employers.

See Report and Recommendation, (DE #79).
If you read this opinion not knowing the omitted and material facts, res judicata is definitely properly applied. This is the danger of allowing judges to write opinions without public scrutiny. Additionally, Judge Graham’s Magistrate, Frank Lynch, Jr. goes beyond truisms and actually lies or does he? A “judicial finding of lawful discharge” was not made in the former case, 99-14027. Judge Graham’s decision necessarily leads to an absurd result in that Mason could apply for a job today and Highlands County could discriminate against Mason and Mason would be without a remedy due to “res judicata”. Thanks to Judge Graham, Highlands County is not subject to the Discrimination laws of the United States. Here again Judge Graham has substituted his wisdom for Congress.

Tags: "R&R", 1296 (11th Cir. 2001), 193 F.3d 1235 (11th Cir. 1999), 244 F.3d 1289, 287 F.3d 316, 299 F.3d 1265;2002 U.S. App. LEXIS 15500;15 Fla. L. Wee, 319 (4th Cir. 2002), 989 F.2d 362 (9th cir. 1993), binding precedent, cause of action, claim, claim preclusion, claims which were raised, collateral estoppel, could have been raised, Deceive, delayed discovery rule, doctrine of res judicata, EEOC, employment discrimination, failure to hire, former claim, former lawsuit, grounds, In re Piper Aircraft Corp., INC., issue preclusion, material facts, McDONALD v. HILLSBOROUGH COUNTY SCHOOL BOARD 821 F.2d 1, merits, new cause of action, new claim, Notice of Right To Sue, Orca Yachts v., PALOMAR MOBILEHOME PARK ASSOCIATION v. CITY OF SAN MARC, Pertinent facts, previous claim, prior litigation, RAGSDALE v. RUBBERMAID, Report and Recommendation, res judicata, retaliation, RUBBERMAID COMMERCIAL PRODUCTS, statutes of limitations, subsequent actions, Truisms, TRUSTMARK INSURANCE COMPANY, United Transportation Union 946 F.2d 1054 (4th Cir. 199, Unpublished decision, unpublished opinion, v. ESLU, wrongful termination