Posts Tagged ‘“Federal Rules Of Appellate Procedure”’

In Forma Pauperis Statute Abused To Conceal Acts Of Judicial Misconduct Committed By U.S. Dist. Judge Donald L. Graham

October 19, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham, “Teflon Don”, A Bad Mother&&#!@, Shut Your Mouth!!

Purpose Of In Forma Pauperis Statutes

The federal in forma pauperis statute, enacted in 1892 and presently codified as 28 U.S.C. § 1915, is designed to ensure that indigent litigants have meaningful access to the federal courts.  (internal citations omitted). Toward this end, § 1915(a) allows a litigant to commence a civil or criminal action in federal court in forma pauperis by filing in good faith an affidavit stating, inter alia, that he is unable to pay the costs of the lawsuit. Congress recognized, however, that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.”  Neitzke v. Williams, 490 U. S. 319, 324 (1989).  U.S. Dist. Judge Donald L. Graham, the subject of this post, has a long and documented history or pattern and practice of arbitrary denials of in forma pauperis motions.  See http://mmason.freeshell.org/ifp.html.  A complaint of judicial misconduct was filed against Judge Graham for abitrarily denying ifp motions on 18 different occasions without offering either of the legal reasons allowed for denying in forma pauperis status. See Neitzke, at 490 U.S. 324(“§ 1915(d) authorizes federal courts to dismiss a claim filed in forma pauperis ‘if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.“) However, Chief Judge J.L. Edmondson, who is charged with with “investigating” allegations of misconduct does not agree that a pattern and practice of intentionally disregarding the law is judicial misconduct.  In Judicial Misconduct Complaint No. 05-0020, Judge Edmondson stated:

In this complaint Mr. Mason, although worded differently that his previous complaints, re-makes the allegation that Judge Graham denied him access to the courts by summarily denying a string of motions for in forma pauper status and that Judge Graham did not identify either of the only two reasons allowed for such denial.

The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling” and “successive”. Therefore, pursuant to Chapter 16 of Title 28 U.S.C. § 352(b)(I)(ii) and Addendum III Rules 4(b)(2) and 18(e), this Complaint is DISMISSED.

Judge Edmondson disagrees with his own Judicial Conference whose guidance he is obligated to follow who has clearly stated:

[A] judge’s pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct. However, the characterization of such behavior as misconduct is fraught with dangers to judicial independence. Therefore, a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge’s arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.

The Administrative Office of the United States Courts, Judicial Conference, Committee on Judicial Conduct and Disability, See http://www.uscourts.gov/library/judicialmisconduct/jcdopinions108.pdf
.

Introduction

Judge Donald L. Graham, “Teflon Don”, and the Eleventh Circuit, U.S. Court of Appeal, abused the in forma pauperis to stop an appeal, Eleventh Circuit Case No. 01-13664, from going forward.  Eleventh Circuit Case No. 01-13664, an unpublished opinion, has been dubbed the “appeal from hell” for its lawlessness, dishonesty, and ingenuity in attempting to defeat an appeal.  This remarkable story, “Eleventh Circuit Case No. 01-13664: The Appeal From Hell“,  is fully documented at:
https://mcneilmason.wordpress.com/eleventh-circuit-case-no-01-13664-the-appeal-from-hell/
.  This particular post documents how U.S. Dist. Judge Donald L. Graham and the Eleventh Circuit abused the in forma pauperis statutes, 28 U.S.C. §1915, in order to deny appellate review of allegations of misconduct against Judge Graham.  These allegations included, but definitely are not limited to, the following:

  • Lying and intentionally misrepresenting law.
  • Refusing to rule on a motion for a preliminary injunction that had been pending for more than 17 months.
  • Allowing scores of motions and filings to languish without being decided.
  • Usurping legal authority. Allowing a Magistrate to issue an injunction prohibiting direct communication with the Highlands County Government.  Additionally, prohibiting  Marcellus Mason from making public records request under Florida Law directly to Highlands County.
  • Violating clearly established law and the authority of the U.S. Supreme Court by issuing pre-filing injunctions without notice and opportunity to be heard.
  • Abuse of the criminal contempt procedure.  Judge Graham took a clearly invalid sua sponte issued pre-filing injunction and made it the basis of a criminal contempt complaint and conviction.
  • Lying and intentionally misrepresenting material facts.
  • Ignoring the U.S. Supreme Court denying access to the courts by refusing to state any reason for denying IFP applications.
  • Awarding attorneys’ fees against an indigent plaintiff in total
    disregard of the law and the United States Supreme Court.

This post is part of an overall pattern and practice of using extreme measures and lawlessness to conceal the misconduct of Judge Graham.  See Documented Allegations of Misconduct.  Incidentally, while not relevant to the discussion of this post, the Eleventh Circuit’s Chief Judge, J.L. Edmondson, has fought tooth and nail to keep from addressing a documented pattern and practice of disregarding well established law by Judge Graham.  See mmason.freeshell.org/372c or mmason.freeshell.org/edmondson/edmondson.  Judge Graham’s misconduct and Judge’s Edmondson’s defense of Judge Graham’s misconduct are fully documented in the following judicial misconduct complaints:

No. 01-0054No. 01-0054-Judicial Council; No. 01-0068; No. 01-68-Judicial Council; INTERVENING MANDAMUS; No. 02-0006; No. 02-0006 -Judicial Council; No. 02-0029; No. 02-0034; No. 02-0052; No. 02-0059; COMPLAINTS FILED IN 2005; No. 05-0008; No. 05-0011; No. 05-0012; No. 05-0013; No. 05-0020; No. 05-0021.

The following complaints of judicial misconduct are currently pending against Judge Graham:

Complaint Status

Judicial Conference
pending

Reconsideration
pending

June 25, 2008
pending

July 9, 2008
pending

July 15, 2008
pending

Material Facts

On February 22, 1999, Judge Edward B. Davis allowed Marcellus Mason to file a lawsuit without paying the filing fees, or in forma pauperis, “IFP”, due to indigency.  See Order, (D.E. #3)(“Having examined the Plaintiff’s Motion and Financial Affidavit, the Court finds that the Plaintiff has demonstrated his inability to pay fees or give security in this matter, as required by 28 U.S.C. § 1915(a). The Court also finds that Plaintiff appears to have brought this action in good faith.;”).  Judge Davis retired and the case was assigned to Judge Donald L. Graham.  The case was ultimately dismissed on June 20, 2001.

The case was dismissed on June 20, 2001. (D.E. 791).

A Notice of Appeal was filed on June 25, 2001. (D.E. 795)

The case was assigned Case No. 01-13664 by the Eleventh Circuit.

A motion to proceed on appeal in forma pauperis was filed on July 13, 2001. (D.E. #799).  A second motion to proceed in forma pauperis was filed on August 10, 2001.  (D.E. #811).

On September 20, 2001, Judge Graham’s Magistrate, Frank Lynch, Jr. denied both pending motions [(D.E. #799), (D.E. #811)] to proceed in forma pauperis(D.E. #877).   This order states:

THIS CAUSE having come on to be heard upon an Order of Reference from the Honorable Donald L. Graham, dated September 10, 2001, and this Court having reviewed the aforementioned Motions and the pertinent portions of the record, and noting that in other actions filed by Plaintiff, Judge Graham has denied Plaintiff’ s motions to proceed in forma pauperis (Case Nos. 00-14116, 00-14201 , 00-14202, 00-14240), and further noting that this Court has compared Plaintiff’s previously filed IFP motions and accompanying affidavits with the instant motion and affidavit and has found no relevant difference, and being otherwise advised in the premises , it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motions to Proceed in Forma Pauperis are DENIED .

See (D.E. #877).

On December 12, 2001, the Eleventh Circuit denied an in forma pauperis motion by simply asserting:

Appellant’s motion for leave to proceed on appeal in forma pauperis is DENIED because appellant has not truthfully provided this Court with information concerning his ability to pay the filing and docketing fees.  See Moreland v. Wharton, 899 F.2d 1168, 1170 (11th Cir. 1990) (holding that right to proceed IFP is not absolute, but rather is left to the sound discretion of the court.

See Case No. 01-13664 IFP Order, pg. 1.

Imagine how you would feel if someone accused you of something and refused to provide facts to support their allegation! This is anti-American.  Upon receiving the order denying IFP, the appellant, Mason filed a motion for clarification begging the Eleventh Circuit for the factual basis for its assertion that “appellant has not truthfully provided this Court with information concerning his ability to pay the filing and docketing fees.”  However, the Eleventh Circuit refused to provide facts to support its conclusion and simply stated:

Appellant has filed a “motion for reconsideration and clarification,” which is construed as a motion for reconsideration of this Court’s order dated December 12, 2001, denying leave to proceed on appeal in forma pauperis. Upon reconsideration, appellant’s motion for leave to proceed on appeal in forma pauperis is DENIED.

See Case No. 01-13664 IFP Order, pg. 2.

Prior Approval

As stated above, Mason was allowed initially allowed to proceed in forma pauperis by Judge Edward Davis.  See Order, (D.E. #3).  It is well established that once a party has been allowed to proceeded in forma pauperis in the district court, the party is allowed to proceed on appeal in forma pauperis automatically unless the district judge finds that the party is proceeding in bad faith.   In Starks v. State Of Florida, 2007 U.S. App. LEXIS 26270 (11th Cir. 2007), the Eleventh Circuit, Judges J.L. Edmondson, R. Lanier Anderson, and Rosemary Barkett, presiding, granted in forma pauperis on appeal where the district court found that the underlying complaint or lawsuit was frivolous.   Fed.R.App.P. Rule 24(a) states:

Rule 24. Proceeding in Forma Pauperis

(a) Leave to Proceed in Forma Pauperis.

(3) Prior Approval. A party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization, unless the district court–before or after the notice of appeal is filed–certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis. In that event, the district court must state in writing its reasons for the certification or finding.

The Notes to Fed.R.App.P. Rule 24(a) state:

NOTES OF ADVISORY COMMITTEE ON RULES–1967:

“The second paragraph permits one whose indigency has been previously determined by the district court to proceed on appeal in forma pauperis without the necessity of a redetermination of indigency, while reserving to the district court its statutory authority to certify that the appeal is not taken in good faith, 28 U.S.C. § 1915(a), and permitting an inquiry into whether the circumstances of the party who was originally entitled to proceed in forma pauperis have changed during the course of the litigation. Cf. Sixth Circuit
Rule 26.”   

A string of appellate courts have parroted the provisions of Rule 24 of the Federal Rules of Appellate Procedure.

  • “Rule 24 of the Federal Rules of Appellate Procedure, which governs our own in forma pauperis practice, permits any litigant who has been allowed to proceed in an action in the District Court in forma pauperis to proceed on appeal in forma pauperis without further authorization, unless the District Court certifies that the ‘appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed” McKelton v. Bruno , 428 F.2d 718; 138 U.S.App.D.C. 366 ¶4(D.C. Cir. 1970).
  • “”If a litigant is granted i.f.p. status in a district court, and if that status is not revoked in the district court, the litigant, upon filing a notice of appeal, continues on appeal in i.f.p. status. Fed.R.App.P. 24(a)”  Leonard v. Lacy, 88 F.3d 181n.2(2nd Cir. 1996).
  • “Normally, when a litigant is granted leave to proceed in forma pauperis by the district court, this status carries over in the Court of Appeals.  Fed.R.App.P. 24(a). However, if the district court dismisses the case as frivolous under 28 U.S.C. Sec. 1915(d), the litigant must reapply to this Court to proceed in forma pauperis on appeal, since a finding of frivolousness is viewed as a certification that the appeal is not taken in good faith. 28 U.S.C. Sec. 1915(a); Fed.R.App.P. 24(a). Dismissal of a complaint by the district court under Rule 12(b)(6) or any other rule does not negate the in forma pauperis status. Because the district court dismissed the complaint using the language of Rule 12(b)(6), and not as frivolous under 28 U.S.C. Sec. 1915(d), there was no need to again grant Oatess leave to proceed in forma pauperis.” Oatess v. Sobolevitch, 914 F.2d 428 n.4(3rd Cir. 1990).
  • “[W]e are mindful of the provisions of Fed.R.App.P. 24(a) concerning appeals in forma pauperis. This rule provides that a party who has been permitted to proceed in the district court in forma pauperis ‘may proceed on appeal in forma pauperis without further authorization unless, * * * the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed, in which event the district court shall state in writing the reasons for such certification or finding.'”  Liles v. The South Carolina Department Of Corrections, 414 F.2d 61214(4th Cir. 1969).  “In case the district court certifies that the appeal is not taken in good faith, the required written statement must show not merely that the appeal lacks merit, but that the issues raised are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant. See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958).  Additionally, an appeal is properly denied as lacking the requisite good faith where there is a clear indication that the conduct of an indigent appellant amounts to a deliberate harassment of the courts or an intentional abuse of the judicial process” id. n.1.
  • “(1) a district court may certify that an IFP appeal is not taken in good faith under section 1915(a)(3) and Rule 24(a); (2) if the trial court does so, it is required under Rule 24(a) to set forth in writing the reasons for its certification;”  Baugh v. Taylor, 117 F.3d 197 ¶23(5th Cir. 1997).
  • “Under Fed.R.App.P. 24, a party granted ifp status in the district court retains that status on appeal unless the district court certifies that the appeal is not taken in good faith, in which case the district court must state in writing the reasons for the certification.”  Williams v. Shettle,  914 F.2d 260, ¶4(7th Cir. 1990).
  • “Thus, it is clear that a party may appeal in forma pauperis without making application for a certificate when he has already been permitted by the district court to proceed in forma pauperis. The only time a party is prevented from taking an appeal is when the trial court, before or after the notice of appeal is filed, certifies in writing that the appeal is not taken in good faith. When this occurs the petitioner may still seek a certificate from this court or the Supreme Court.” 
    Peterson v. UNITED STATES of America, 467 F.2d 892 (8th Cir. 1972)
    .
  • “”Petitioner renews his motion to proceed in forma pauperis in this court. This motion is moot, however, because Petitioner is already entitled to proceed in forma pauperis: Petitioner proceeded in forma pauperis in the district court, and the district court never certified that the appeal was not taken in good faith or found that the Petitioner was otherwise not entitled to proceed in forma pauperis. See Fed. R. App. P. 24(a)(3); Singleton v. Hargett 1999 WL 606712 at *1 n.2 (10th Cir. 1999) (unpublished opinion) (dismissing as moot petitioner’s motion to proceed in forma pauperis in the court of appeals).  “Because he was permitted to proceed in forma pauperis in the district court, and because there has been no change to that designation, Petitioner retains his in forma pauperis status on appeal pursuant to Fed. R. App. P. 24(a)(3).” Id. See also Celske v. Edwards, 165 F.3d 396, 398 (7th Cir. 1998) (holding that the petitioner retained his leave to proceed in forma pauperis in the court of appeals because the district court had made no certification of bad faith).  Rhodes v. True, No. 99-3026 (10th Cir. 1999).

There is no finding by Judge Graham that the appeal was taken in bad faith, consequently the law was disregarded.  Judge Graham’s order denying in forma pauperis states the following:

THIS CAUSE having come on to be heard upon an Order of Reference from the Honorable Donald L. Graham, dated September 10, 2001, and this Court having reviewed the aforementioned Motions and the pertinent portions of the record, and noting that in other actions filed by Plaintiff, Judge Graham has denied Plaintiff’ s motions to proceed in forma pauperis (Case Nos . 00-14116, 00-14201 , 00-14202, 00-14240), and further noting that this Court has compared Plaintiff’s previously filed IFP motions and accompanying affidavits with the instant motion and affidavit and has found no relevant difference, and being otherwise advised in the premises , it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motions to Proceed in Forma Pauperis are DENIED.

See (D.E. #877).

The Eleventh Circuit, without offering a scintilla of proof, simply asserts:

Appellant’s motion for leave to proceed on appeal in forma pauperis is DENIED because appellant has not truthfully provided this Court with information concerning his ability to pay the filing and docketing fees.  See Moreland v. Wharton, 899 F.2d 1168, 1170 (11th Cir. 1990) (holding that right to proceed IFP is not absolute, but rather is left to the sound discretion of the court.

See Case No. 01-13664 IFP Order, pg. 1. Notions of fundamental fairness without recitation to the law would require the Eleventh Circuit to support its conclusion that the “appellant has not truthfully provided this Court with information concerning his ability to pay the filing and docketing fees“.  Consequently, Mason filed a motion for rehearing demanding to know the factual basis for the Eleventh Circuit’s conclusion that Mason had been untruthful.  The Eleventh Circuit absolutely refused to provide a factual basis to support its conclusion.

Appellant has filed a “motion for reconsideration and clarification,” which is construed as a motion for reconsideration of this Court’s order dated December 12, 2001, denying leave to proceed on appeal in forma pauperis. Upon reconsideration, appellant’s motion for leave to proceed on appeal in forma pauperis is DENIED.

See  Case No. 01-13664 IFP Order, pg. 2.

Disregarding Good Faith Requirement

Judge Donald L. Graham and the Eleventh Circuit both ignored the good faith requirement as their denials do not assert that the appeal was not taken in good faith much less provide any proof that the appeal was not taken in good faith.

A petitioner demonstrates good faith when he seeks appellate review of any issue that is not frivolous.  See Coppedge v. United States, 369 U.S. 438, 445 (1962).  “Dismissal of an in forma pauperis complaint is appropriate when the claim is based on ‘indisputably meritless legal theory or factual allegations are clearly baseless.'”  Heghmann v. Indorf, 2005 Bankr. LEXIS 767,*;324 B.R. 415; (1st Cir. 2005). “[I]f a judge is convinced, as the judge was here, that there is no substantial question for review and an appeal is frivolous and therefore futile, it is his duty to certify that the appeal sought to be taken in forma pauperis is not taken in good faith.” Parsell v. UNITED STATES of America, 218 F.2d 232 ¶25(5th Cir. 1955).  In Johnson v.Dencek, 868 F.2d 969 (7th Cir. 1989), the court remanded the case for a determination that the appeal was not taken in good faith where the district failed to make the determination.  In Johnson, the court ultimately allowed the plaintiff to appeal in forma pauperis notwithstanding the district findings of frivolousness that was predicated upon the plaintiff’s attorney conclusion that the lawsuit lacked merit.

Lack of Respect For the Supreme Court

Both Judge Graham and the Eleventh Circuit have disregarded the Supreme Court by making denials of in forma pauperis without providing any factual support for their decisions. This type of behavior is commonly referred to as a summary denial.  The U.S. Supreme Court has condemned summary denials of in forma pauperis.  The Supreme Court has stated that a court cannot deny in forma pauperis by simply making conclusory statements without stating supporting facts.  In Cruz v. Hauck, 404 U.S. 59, 61 (1971), the Supreme Court opined:

The benefits of this generous provision [in forma pauperis], now codified at 28 U.S.C. § 1915, have been limited, however, by the important proviso added in 1910 (36 Stat. 866) which, as now amended, reads: “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” “Good faith” has been defined as a requirement that an appeal present a nonfrivolous question for review. If the district court certifies that an appeal would not present such a question, then an indigent may ask the court of appeals for permission to proceed in forma pauperis. That court must grant the renewed motion if after a de novo determination it disagrees with the district court’s application of the good faith test. If both lower courts refuse permission, then, unless this Court vacates the court of appeals’ finding, the pauper’s appeal is ended without a hearing on the merits. See Fed.Rule App.Proc. 24(a). It is important that, in all of these proceedings, the only cognizable issue is whether a summary survey (as opposed to plenary deliberation) suggests that a substantial argument could be presented…Our holdings have steadily chipped away at the proposition that appeals of the poor can be disposed of solely on summary and abbreviated inquiries into frivolity, rather than upon the plenary consideration granted paying appellants.

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Eleventh Circuit Disregards Well Established Law, Own Binding Precedent, And The U.S. Supreme Court: Achieving Desired Outcome By Ignoring Timely Filed Notices of Appeal

September 9, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham, “Teflon Don”, A Bad Mother&&#!@, Shut Your Mouth!!

Table of Contents

Introduction

Point of This Post

Judicial Independence

Form of Notice Of Appeal

Disregarded Notices Of Appeal

Supreme Court On Time For Filing Notice of Appeal

Eleventh Circuit On Time For Filing Notice of Appeal

Other U.S. Circuit Court of Appeals On The Time For Filing Notice of Appeal

Order Closing the Case

Introduction

This entire blog or website, mcneilmason.wordpress.com, is dedicated to illustrating the extreme measures that judges at the Eleventh Circuit, U.S. Court of Appeal have deployed to keep from disciplining U.S. District Judge Donald L. Graham, “Teflon Don”, for abusive behavior and misconduct. Judge Graham has a history of insolence with respect the United States Supreme Court and binding precedent. See this site, “Is U.S. Dist. Judge Donald L. Graham Willfully Defying The United States Supreme Court?“. This post will reference Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners, Case No. 01-13664-A,  (11th Cir. 2002), an unpublished decision.  Mason v. Heartland Library Cooperative involves a level of judicial dishonesty that is odious and virtually impossible to overstate as this appeal has been aptly called “the appeal from hell”.  See Eleventh Circuit Case No. 01-13664: The Appeal From Hell The Eleventh Circuit is clearly unconstrained either by the law or the facts in its inexorable march to the land of desired outcomes. However, this post will limit itself to the narrow discussion of how the Eleventh Circuit simply took away the right to appeal a pre-filing injunction by asserting that notices of appeals were untimely. On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his motion and without notice to the litigant Marcellus M.Mason.  See Docket Entry Number 878, (D.E. # 878) .  Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. While not the subject of this post, but the sua sponte issued pre-fling injunction is remarkable  and incredible for the following reasons:

Point of This Post

This post will only address the narrow legal point that the time to file a notice of appeal does not begin to run until a separate judgment is entered pursuant to Rule 58, Federal Rules of Civil Procedure.  Specifically, this post will document how the Eleventh Circuit disregarded well established law, its own binding precedent, and the United States Supreme Court in order to keep from reviewing a sua sponte issued pre-filing injunction rendered by U.S. Dist. Judge Donald L. Graham on September 20, 2001.  The Eleventh Circuit simply ignored several timely filed notices of appeal that attacked the sua sponte issued pre-filing injunction.  Stated alternatively, the Eleventh Circuit just took away the legal right to appeal the sua sponte issued pre-filing injunction rendered on September 20, 2001.  The final judgment as required under Rule 58 was rendered on September 13, 2002. Prior to this date, September 13, 2002, the Eleventh Circuit disregarded several notices of appeal.

Judicial Independence

The American Bar Association, “ABA”, has created “talking points” on Judicial Independence. The ABA believes that Federal Judges should be left alone and be allowed to discipline themselves without “interference” from the Congress.

Benefits of Judicial Independence

It assures all Americans that cases will be decided on their merits. All litigants know that their case will be decided according to the law and the facts, not the vagaries of shifting political currents or the clamor of partisan politicians. Decisions are based on what is right and just, not what is popular at the moment.

ABA Talking Points: Independence of the Judiciary: Judicial Independence

Contrary to the ABA’s talking points, as this post documents, judges or appeals courts can simply deny an appeal without even bothering to address the merits of the appeal.  A court like the Eleventh Circuit can simply say a notice of appeal was untimely and disregard the right to appeal.   When this happens, a litigant is virtually without a remedy because the Supreme Court only hears about 1 per cent of the cases that are filed seeking review.

Form of Notice Of Appeal

Firstly, it is necessary to point out that according to the United States Supreme Court, a timely filed brief, formal or informal, or in this case a petition for mandamus may satisfy the notice of appeal requirement. There is no requirement that the brief or filing specifically state “notice of appeal”. “Rule 3(c) governs the content of notices of appeal: notices ‘shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken.Smith v. Barry, 502 U. S. 244 (1992). Courts will liberally construe the requirements of Rule 3. Thus, when papers are ‘technically at variance with the letter of [Rule 3], a court may nonetheless find that the litigant has complied with the rule if the litigant’s action is the functional equivalent of what the rule requires.Id at ¶11. [T]he notice afforded by a document, not the litigant’s motivation in filing it, determines the document’s sufficiency as a notice of appeal. If a document filed within the time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal.” Id at ¶13. Consequently, a petition for mandamus that meets that meets the requirements stated above is sufficient to satisfy the notice of appeal requirement.

The Eleventh Circuit has stated: “[P]recedent permits us to treat the petition for the writ of mandamus as a direct appeal”. In Re Bethesda Memorial Hospital Inc., 123 F.3d 1407, 1408 (11thCir. 1997).

Rule 4. Appeal as of Right—When Taken

In a civil case, a litigant normally has 30 days to tile an appeal from an order or judgment.

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4 (a)(1)(B), 4 (a)(4), and 4 (c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.

See Rule 4, Fed.R.App.P.

Pertinent Facts

This post will only list the facts that are necessary to determine when the time for filing a notice of appeal begins to run.  More detailed background information can be found at mmason.freeshell.org, generally, and at http://mmason.freeshell.org/CaseSummary.htm.  This case was an employment discrimination case and was docketed under Case No. 99-14027-CV-Graham.  The Case was dismissed on June 20, 2001, Docket Entry No. 791, by Judge Graham for constitutionally protected out of court communications between the Plaintiff, Marcellus Mason, and the Defendant, Highlands County Board of County Commissioners.   A Notice of Appeal was filed on June 25, 2001.  ( Docket Entry #795).  District Case No. 99-14027-CV-Graham was subsequently assigned Eleventh Circuit Case No.  01-13664.

Post Closing Order(s)

On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his motion and without notice to the litigant Marcellus M. Mason.  See Docket Entry Number 878, (D.E. # 878) .  Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. Consequently, when Judge Graham rendered this sua sponte issued pre-filing on September 20, 2001, the matter was on appeal already.

Final Judgment

Final Judgment was rendered almost one year after the sua sponte issued pre-filing injunction of September 20, 2001.   The Defendants specifically requested a “final judgment” on February 25, 2002.  See Docket Entry No. 897Final Judgment was rendered on September 13, 2002. See Docket Entry No.  911.  The order expressly stated:

THIS CAUSE came before the Court upon Defendant’s

Motion for Entry of Final Judgment (D.E. 897)…FINAL JUDGMENT ORDER AND ADJUDGED that Defendant’s Motion is GRANTED. Final Judgment is entered in favor of Defendant and costs, in the amount of $200,00 are awarded to Defendant in accordance with this Court’s January 25, 2002.

Disregarded Notices Of Appeal

Prior to Final Judgment being rendered on September 13, 2002, the Eleventh Circuit disregarded several notices of appeal that included the following:

  • Firstly, an appeal was pending, Case No. 01-13664 [a direct appeal], when Judge Graham rendered the sua sponte issue pre-filing injunction on September 20, 2001.  A Notice of Appeal was filed on June 25, 2001.  ( Docket Entry 795).  On or about October 2, 2001, Mason filed a petition for mandamus challenging the validity of the sua sponte issued pre-filing injunction. See Receipt.  This petition for mandamus was subsequently assigned Case No. 01-15754.  The briefs in the direct appeal, Case No. 01-13664, had not been filed yet and the first brief was not filed until February 4, 2002.  See Eleventh Circuit’s Docket.  Consequently, the Eleventh Circuit could have and indeed should have construed the petition for mandamus as a notice of appeal and simply allowed the parties to argue this issue in the pending appeal.  However, on December 5, 2001, the Eleventh Circuit denied the petition for mandamus without requiring the appellees to respond.   The ” petition for writ of mandamus and petition for writ of prohibition” is DENIED.” See Opinion.
  • Case No. 02-11476.  On May 01,2002, or four months before Final Judgment was rendered on September 13, 2002, the Eleventh Circuit denied a petition for mandamus that should have been treated as a notice of appeal and stated in pertinent part:  “Mason also requests that this Court vacate the district court’s order enjoining Mason from to Mason’s former employment without first receiving permission from the district court. Although Mason has not filed a notice of appeal from the district court’s order requiring him to receive the permission of the district court from filing any additional pleadings or from filing any new lawsuits related to his former employment or subsequent interactions with the defendants, Mason may raise this issue on appeal…Accordingly, Mason’s IFP motion is DENIED because his mandamus petition is frivolous.”  See Order dated May 1, 2002.
  • Case No. 02-14646.  On October 07,2002, or 24 days after final   Final Judgment was rendered on September 13, 2002, the Eleventh Circuit dismissed a notice of appeal that had been filed on June 24, 2002, or almost three months before Final Judgment was rendered on September 13, 2002. The Eleventh Circuit stated: This appeal is DISMISSED, sua sponte, for lack of jurisdiction. Appellant Marcellus Mason’s notice of appeal, filed on June 24,2002, is untimely from the district court’s order enjoining him from filing additional pleadings, entered on September 21,2001. See Fed.R.App.P, 4(a)(l)(A) & 26(a)(3).

Supreme Court On Time For Filing Notice of Appeal

“Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a).” Bankers Trust Company v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). The sole purpose of the separate-document requirement, which was added to Rule 58 in 1963, was to clarify when the time for appeal under 28 U.S.C. § 2107 begins to run. According to the Advisory Committee that drafted the 1963 amendment:”Hitherto some difficulty has arisen, chiefly where the court has written an opinion or memorandum containing some apparently directive or dispositive words, e. g., ‘the plaintiff’s motion [for summary judgment] is granted,’ see United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 229, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). Clerks on occasion have viewed these opinions or memoranda as being in themselves a sufficient basis for entering judgment in the civil docket as provided by Rule 79(a). However, where the opinion or memorandum has not contained all the elements of a judgment, or where the judge has later signed a formal judgment, it has become a matter of doubt whether the purported entry of a judgment was effective, starting the time running for post-verdict motions and for the purpose of appeal. . . .

“The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document—distinct from any opinion or memorandum—which provides the basis for the entry of judgment.” 28 U.S.C.App., p. 7824. The separate-document requirement was thus intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court only to have the appellate court announce later that an earlier document or entry had been the judgment and dismiss the appeal as untimely. The 1963 amendment to Rule 58 made clear that a party need not file a notice of appeal until a separate judgment has been filed and entered. Id at ¶7.

See also United States v. Indrelunas, 411 U.S. 216 (1973).

Eleventh Circuit On Time For Filing Notice of Appeal

“'[C]ases from both the Supreme Court and the circuit courts of appeal make it clear that the time to file a notice of appeal does not begin to run until a separate judgment is entered pursuant to Rule 58.’”  Big Top Koolers, Inc. v. Circus-Man Snacks, Inc.,528 F.3d 839; 2008 U.S. App. LEXIS 11087; (11th Cir. 2008)(quoting Reynolds v. Golden Corral Corp., 213 F.3d 1344,1346 (11th Cir. 2000)). “But, Rule 58 provides an alternative means of determining when the final judgment is deemed entered: “[J]udgment is entered at the following times: . . . (2) if a separate document is required, when the judgment is entered in the civil docket under Rule 79(a) and the earlier of these events occurs: (A) it is set out in a separate document; or (B) 150 days have run from the entry in the civil docket.” Fed. R. Civ.P. 58(c) (emphasis added).” Id.

Other U.S. Circuit Court of Appeals On The Time For Filing Notice of Appeal

Tenth Circuit

“Federal Rule of Civil Procedure 58 sets forth how a judgment or order is to be entered. Under Rule 58(a)(1) ordinarily a “judgment [or] amended judgment must be set forth on a separate document.” (Federal Rule of Civil Procedure 54(a) defines judgment as “any order from which an appeal lies.”) But there are exceptions to the separate-document requirement; a separate document is not required for orders disposing of motions under Rules 50(b), 52(b), 54, 59, and 60. See Fed. R. Civ. P. 58(a)(1)(A), (B), (C), (D), (E). Entry is straightforward when a separate document is not required; in that circumstance, the order is “entered” when it is “entered in the civil docket under Rule 79(a).” Id. Rule 58(b)(1). But if a separate document is required, the judgment is entered only “when it is entered in the civil docket under Rule 79(a) and when the earlier of these events occurs: (A) when it is set forth on a separate document, or (B)”when 150 days have run from entry in the civil docket under Rule 79(a).” Id. Rule 58(b)(2). Medical Supply Chain, Inc. v. Neoforma, Inc., 508 F.3d 572 (10th Cir. 2007).

Fifth Circuit

What is significant about this case, Baker, infra, is that the district court entered an order and expressly wrote on the order that “‘This is a final judgment.‘” However, the court, Fifth Circuit, opined that this description did not meet Rule 58’s requirement for a separate document.  Baker, infra, at ¶12.

“‘[T]he 1963 amendment to Rule 58 made clear that a party need not file a notice of appeal until a separate judgment has been filed and entered.’ Rule 58 is thus a safety valve preserving a litigant’s right to appeal in the absence of a separate document judgment.” Baker v.Mercedes Benz Of North America, 114 F.3d 57 (5th Cir. 1997). “If a separate document judgment is not entered, however, the time for filing an appeal does not begin to accrue until a judgment complying with the Rule 58 dictates has been entered. The rule is to be ‘ ‘interpreted to prevent the loss of the right of appeal, not to facilitate loss.”” Id. at ¶10. “If a separate document judgment is not entered, however, the time for filing an appeal does not begin to accrue until a judgment complying with the Rule 58 dictates has been entered. The rule is to be ‘ ‘interpreted to prevent the loss of the right of appeal, not to facilitate loss.””  Id. at ¶11.

Order Closing the Case

On June 20, 2001, Judge Graham rendered an order closing the case which stated:

THIS CAUSE came before the Court upon Defendants’ Motion and Second Motion for Sanctions in the Form of Dismissal of Plaintiff’s Action (D.E. #511 and D.E. #646). THE MATTER was referred to the Honorable United States Magistrate Judge Frank J. Lynch. A report recommending that the Court grant Defendants’ Motion for Sanctions in the Form of Dismissal of Plaintiffs Actions (D.E. #511 and D.E. #646), dated May 31, 2001, has been submitted. Plaintiff filed his objections on June 12, 2001. The Court has conducted a de novo review of the file and is otherwise fully advised in the premises. Accordingly, it is ORDERED AND ADJUDGED that United States Magistrate Judge Lynch’s Report of May 31, 2001, is hereby RATIFIED, AFFIRMED and APPROVED in its entirety. Therefore it is, ORDERED AND ADJUDGED that Defendants’ Motion and Second Motion for Sanctions in the Form of Dismissal of Plaintiff’s Action is GRANTED. It is further, ORDERED AND ADJUDGED that Plaintiff’s remaining claims are DISMISSED with prejudice. It is further, ORDERED AND ADJUDGED that this case is CLOSED and all pending motions are DENIED as MOOT. DONE AND ORDERED in Chambers at Miami, Florida, this 20th day of June, 2001.

See Docket Entry No. 791.