Judge William M. Acker Jr. (right),
with Stanford professor Jack Rakove
A federal judge has unlawfully dismissed the lawsuit over my wrongful termination at the University of Alabama at Birmingham (UAB), and evidence suggests that he and others might have committed criminal acts in the process.
U.S. District Judge William M. Acker Jr., an 84-year-old Reagan appointee, granted summary judgment for the University of Alabama and various individual defendants--and he did it without giving either side an opportunity to conduct discovery. Procedural and case law make it clear that summary judgment cannot be considered, much less granted, when the parties have not been able to conduct discovery.
Acker ignored black-letter law and essentially allowed the UAB defendants to cheat me out of my job without having to provide any documents or answer any questions related to my termination. The case currently is on appeal before the U.S. Eleventh Circuit in Atlanta, and if the law still means anything in the Deep South, Acker's rulings will have to be overturned. But as we have seen in the Don Siegelman case, the Eleventh Circuit often is more interested in protecting trial-court judges than in making sure the law is upheld, so the outcome in my appeal hardly is a certainty.
This much, however, is certain: It's hard to imagine a more grotesque example of judicial incompetence or corruption. (Acker's old, but I see no signs that he's senile; that makes me think this is a case of corruption, not incompetence.) It becomes even more disgusting when you consider that a public, taxpayer-supported university--and several of its officials/managers--are trying to pervert the court system by knowingly taking advantage of tainted rulings.
Most disturbing, perhaps, is this: Acker made statements from the bench--and I have them in an official court transcript--indicating he had talked with one or more people connected to UAB about my case. If that indeed happened, and it influenced Acker's rulings, it would point to federal crimes, including obstruction of justice under 18 U.S. Code 1503.
I recently reported about corrupt rulings I had witnessed in federal court and pointed specifically to two judges from the Northern District of Alabama--Acker and Abdul Kallon. On the surface, the two judges could not be more different. Acker is old, white, and a Republican. Kallon is young, black, and supposedly a Democrat (an Obama appointee). But they have consistently shown a lack of respect for the law, the office they hold, and the parties who come before them. In my previous post, I wrote that I would be providing details about the corrupt actions of Acker and Kallon. This is the first in a series of followup posts that will unmask two rogues on the federal bench.
The law governing my UAB case could not be more simple. It's fairly common for defendants in a lawsuit to file a Rule (12)(b)(6) motion, also known as a "motion to dismiss for failure to state a claim." We discussed these motions in a previous post and noted that, even under recently heightened pleading standards, they should almost never be granted. In fact, when a defendant attaches "matters outside the pleadings" to a motion to dismiss and the court does not exclude them, the motion must be converted to a motion for summary judgment and handled according to Rule 56 of the Federal Rules of Civil Procedure (FRCP). This process is outlined in Rule 12(d) FRCP.
The record shows that UAB entered matters outside the pleadings, in the form of affidavits, and the court did not exclude them. The record also shows that Judge Acker converted the motions to dismiss to a motions for summary judgment. (See document below.) So far, so good.
But Acker veered into a swamp of unlawful activity when he ruled on summary judgment without giving me (or the other side, for that matter) an opportunity to conduct discovery. This is like declaring the New York Yankees the winners over the Boston Red Sox, without giving the Red Sox a chance to bat. It simply cannot be done, either under Rule 56 or Eleventh Circuit precedent.
Acker did not order a discovery conference among the parties, as required by Rule 26(f) of the Federal Rules of Civil Procedure (FRCP), and he never set a scheduling order as required by Rule 16(b) FRCP.
That Acker pulled this stunt indicates he is a judicial rogue of the worst sort. That the UAB defendants are quietly trying to take advantage of such thuggery, when their in-house lawyers have to know it is unlawful, tells us all we need to known about the university's ethically challenged "leadership."
How simple is the law in question? Rule 56(d) FRCP allows a nonmoving party (me, in this instance) to show by affidavit that he has not been able to obtain information that is essential to opposing the motion for summary judgment. The Eleventh Circuit has streamlined this process by operating for almost 24 years under a ruling styled Snook v. Trust Company of Georgia, 859 F. 2d 865 (11th Cir., 1988).
In Snook, the Eleventh Circuit found that a party opposing summary judgment need not file an affidavit to invoke the protection of Rule 56(d). Instead, the nonmoving party simply must bring to the district court's attention that discovery is outstanding. Once that is done, consideration of summary judgment is premature. From Snook:
This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests.
I was not allowed to even make discovery requests, much less obtain responses--and I filed two motions alerting the court to this. (See one of those motions below.) But Acker ruled on summary judgment anyway.
This is dumbfoundingly unlawful, and it indicates that Acker thinks I am too stupid to realize what he did. It also hints that he thinks other parties who come before him are stupid--and, with a lifetime appointment, he really doesn't care that he has butchered the law.
Evidence suggests that Acker might be more than just a bad judge; he might be a crook. Consider a statement Acker made in a hearing on December 10, 2010, after I asked him how much time I had to file a response to a UAB motion:
I think I'm going to give you until after Christmas so I can wish you a happy Christmas by giving you the time for Christmas. I know that UAB and the people over there are very anxious about this, and I want to accommodate them, too, but I think I'm going to eliminate the anxiety for me between now and Christmas by giving him at least that much time.
How would Acker know that "UAB and the people over there" were "very anxious" about my case? I can think of only one answer--someone connected to UAB told him. At a bare minimum, this means Acker had improper ex parte communications about my case, violating judicial ethics and requiring his recusal. Given that Acker went on to unlawfully grant summary judgment without discovery, it more likely means that Acker and one or more persons acted criminally in my case.
Below is a memorandum opinion, and on page 2, Acker clearly states that he is converting defendants' motions to dismiss to motions for summary judgment and will treat them as such. After that, is a motion where I timely notify the court, as required by Snook, that discovery is outstanding. At this point, summary judgment could not lawfully be considered, much less granted. Acker granted it anyway.
Such blatant contempt for the law indicates that Acker does not try very hard to conceal the fact he is crooked. And from our reporting on the Don Siegelman and Paul Minor criminal cases, we know that Acker is not alone.
This is more evidence about the shameful state of our federal courts--and most Americans have no idea how their tax dollars are being abused by "rogues in robes."
(To be continued)
UAB-Acker MSJ Ruling
UAB--Shuler Motion for Discovery