"Do Not Publish" appellate opinions
often provide cover for corrupt
trial judges like William M. Acker Jr.
-- Monroe Freedman, founder of legal ethics
Join me on a brief tour of our experience with "Do Not Publish" opinions in the Eleventh Circuit Court of Appeals. We've shown that the late law professor Monroe H. Freedman found such opinions often are a sham, designed to cover up findings that bear no resemblance to the facts and law governing the case.
My wife, Carol, and I know, from unpleasant, firsthand experience that Freedman was right. In fact, we have two pending matters before the Eleventh Circuit, related to our "Jail Case" and "House Case," and our No. 1 concern is that the ruling will come with "Do Not Publish" stamped in the upper right-hand corner. Without even reading the opinion, that will tell me we've been screwed.
We've had three similar experiences already, and it disgusts us to think taxpayer dollars are being wasted on opinions that "bear no relationship whatsoever to the cases that have been filed and argued before the judges." Those aren't my words. They come from Monroe H. Freedom, who is considered the father of modern legal ethics as a academic subject.
I won't address everything the court got wrong in our cases, focusing only on the primary unlawful findings that forced the court to put the "Do Not Publish" stamp on them. Given that 82 percent of the circuit's cases wind up with unpublished opinions, you are likely to have a similar experience if you live in Alabama, Georgia, or Florida and ever have a federal issue go to appeal:
(1) Shuler v. Board of Trustees of the University of Alabama, et al., 11th Cir., 2012 (Do Not Publish)
Issues at stake -- Allegations of discrimination, and First Amendment violations, related to my termination as an editor at the University of Alabama in Birmingham (UAB), where I had worked for almost 20 years.
Primary unlawful finding in trial court -- Rule 56 of the Federal Rules of Civil Procedure (FRCP) and binding Eleventh Circuit law (see Snook v. Trust Company of Georgia, 859 F.2d 865, 11th Cir., 1988) hold that a court cannot consider summary judgment until the parties have had an opportunity to conduct discovery. Federal rules require a court to order a discovery conference and set a schedule to govern the completion of interrogatories, depositions, requests for production of documents, and the like.
Trial judge William M. Acker Jr. did none of those things. He granted summary judgment to the university, without the first bit of discovery being conducted. He did it, even though I filed three documents informing the court that discovery not only was outstanding, it hadn't been conducted at all. That cannot happen under the law, as outlined in 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 cited Snook over and over in trial-court documents. Did that have any impact on Acker, a Reagan appointee who now is 89 years old? Nope. After telling me in open court that he was going to cheat me, Acker did just that.
What the appellate court did about it -- A three-judge panel simply lied about its own holding in Snook--and it lied about my actions in the trial court. Snook holds that a party simply needs to notify the court that discovery has not been completed -- in this case, discovery had not even started -- and that invokes the protection of Rule 56(d). I filed proper notification in three separate documents, but Acker ignored each one. And the appellate panel covered for the trial court by writing the following: "Shuler never filed a motion under Rule 56(d) and did not identify any discovery relevant to the grounds for summary judgment."
How gross is this con job? You can read my Rule 56(d) motion here, and I filed two other documents alerting the court that discovery had not begun, had not even been scheduled. You can read my petition for an en banc hearing here, and it outlines everything the appellate panel got wrong. Naturally, my en banc petition was denied.
Why this opinion had to be stamped "Do Not Publish" -- Nothing is profound about Snook. I'm sure every federal circuit has similar case law because it's a matter of common sense: You can't determine that a case should be summarily dismissed, or allowed to go to trial, until both parties have been allowed to gather facts that support one outcome or another. In Bill Acker's world, at least in my case, court is a "fact-free zone." My case was decided without a single fact being entered into the record. And the 11th Circuit essentially said, "That's perfectly OK, even though we know it conflicts with Snook. Big deal. Due process and equal protection of the law mean nothing to us."
A quick check of Google Scholar shows that Snook has been cited as recently as Dec. 2, 2015. That means it still is binding precedent, and it probably will be binding precedent as long as federal courts exist in the Southeast. It's that fundamental, so essential to any notion of fair play and justice in our courts. The Eleventh Circuit's ruling in Shuler overturns Snook -- and if put into the official record, that would throw the circuit into chaos. That's why the opinion in my case had to be marked "Do Not Publish."
(2) Roger and Carol Shuler v. Swatek, et al., 11th Cir., 2012 (Do Not Publish)
Issues at stake -- Allegations that a sheriff's sale related to our house was unlawful, violating our rights to due process and equal protection.
Primary unlawful finding in trial court -- Judge Abdul Kallon, citing the Rooker-Feldman doctrine, found that he did not have subject-matter jurisdiction to decide the case. Rooker-Feldman holds that lower federal courts, other than the U.S. Supreme Court, generally should not sit in direct review of state-court decisions. The doctrine involves a number of exceptions, and several of them applied to our case. Perhaps most importantly, Rooker-Feldman applies only to "final state-court judgments." (See Nicholson v. Shafe, 558 F.3d 1266, 11th Cir., 2009.) We weren't seeking review of a final state-court judgment; we were seeking review of a sheriff's sale. In fact, the record showed there was no state-court judgment related to the sheriff's sale.
Federal courts have found that federal claims can be barred if they are "inextricably intertwined" with a state-court judgment. (See Casale v. Tillman, 558 F.3d 1258, 11th Cir., 2009.) Casale held that "A claim is inextricably intertwined if it would effectively nullify the state court judgment . . . or it succeeds only to the extent that the state court wrongly decided the issues." Our claim did not seek to nullify a state-court judgment, and it did not claim that a state court wrongly decided any issue. It claimed that the Shelby County Sheriff's Department unlawfully conducted a sale that caused us to lose full rights to our house.
(From paralegalstudies247.com)
The trial court ruled incorrectly on numerous issues, and I will mention briefly only two others: (1) Rooker-Feldman does not apply to anyone who was not a party to any underlying state-court action. (See Lance v. Dennis, 546 U.S. 459, 2006.) Mike McGarity, our troublesome and criminally inclined neighbor, sued only me in an underlying state matter; he did not sue my wife, Carol, who jointly owned the house subject to a sheriff's sale. That means Rooker-Feldman did not block her claim, but Kallon blocked it anyway; (2) Kallon dismissed our claims against McGarity and his attorney, William E. Swatek, on the grounds that they were not state actors for the purposes of a civil-rights claim. But the U.S. Supreme Court has held that private individuals who act jointly with state officials are deemed to be acting under color of state law. (See Lugar v. Edmondson Oil Co., 457 U.S. 922, 1982.) Our complaint alleged that Swatek and McGarity conspired with state officials to deprive us of our property rights, so that element of our claim could not lawfully be dismissed.What the appellate court did about it -- The three-judge panel ignored the 11th Circuit's finding in Nicholson that Rooker-Feldman applies only to final state-court judgments. Made no mention of it.
The panel did admit that, under Lance, Rooker-Feldman did not block Carol's claims. Bit it dismissed her claims on other dubious grounds, mainly involving immunity. The panel ignored the U.S. Supreme Court finding in Lugar, which if applied properly based on allegations in our complaint, would have treated Swatek and McGarity as acting under color of state law. My appellate brief on the various issues can be read here.
Why this opinion had to be stamped "Do Not Publish" -- The panel's ruling in Shuler essentially overruled Nicholson, Lance, and Lugar -- and butchered the long-held findings related to Rooker-Feldman. In terms of Lugar, the Eleventh Circuit effectively overruled the U.S. Supreme Court. That's something circuit courts are not allowed to do -- the U.S. Supreme Court is called "the highest court in the land" for a reason; Lower courts have an obligation to uphold its findings. Again, had Shuler been published it would have thrown the Eleventh Circuit into chaos -- certifying findings that run contrary to precedents that have governed important legal questions for years.
(3) Roger and Carol Shuler v. Ingram and Associates, et al., 11th Cir., 2011 (Do Not Publish)
Issues at stake -- Allegations that certain entities violated the Fair Debt Collection Practices Act (FDCPA) in trying to collect a debt we allegedly owed to American Express.
Primary unlawful finding in trial court -- This case was a mess from the outset. Four different judges were assigned to it, with Kallon finally getting it. By the time it wound up in his lap, I don't think he had a clue what was going on. We had multiple attorneys representing us, included the deceptive duo of Darrell Cartwright and Allan Armstrong, who essentially cost us the case by admitting to "facts" that the record shows were not facts. Consider this from our appellate brief, which I wrote after we fired Cartwright and Armstrong:
Any admissions in the record were not made by the Shulers; they were made by Darrell Cartwright and Allan Armstrong, two attorneys who no longer represent the Shulers. It was Cartwright and Armstrong who, without consulting the Shulers, admitted to “undisputed facts” Nos. 9, 12, 13, and 18 in Ingram’s motion for summary judgment. The Shulers’ own attorneys repeatedly made blatant mistakes that undermined their clients’ case, admitting to “facts” that are not facts. Federal law makes it clear that a party is not to suffer because of the incompetence of counsel. Consider Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp.,843 F. 2d 808 (4th Circuit, 1988) : “When the party is blameless and the attorney is at fault, the former interests control . . .”
So many errors of fact and law were made in this case, it's hard to know where to begin. Cartwright and Armstrong wrote our response to Ingram's Motion for Summary Judgment, and they did a fairly good job on the argument -- despite wrongfully admitting near the beginning to at least four non-facts that helped cost us the case. Perhaps the most important error by the court is this: 15 U.S.C 1692e holds that "a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt."
Representatives of Ingram and Associates lied to us over and over -- and we captured it all on tape. Perhaps the most important lie, in our view, was their claim that American Express hired them, even though their own sworn testimony showed that the debt-collection firm NCO hired them. Obviously, American Express is a powerful, well-known consumer brand, and claiming they hired you, makes it more likely you will collect a debt (whether you can prove it is owed or not) with relatively little effort.
What the appellate court did about it -- A three-judge panel did nothing to correct Kallon's numerous mistakes. Contrary to clear law, the panel found that we were to suffer for our attorney's mistakes, upholding as "facts" information that the record showed clearly was not factual. The panel also misapplied the standard for summary judgment review, which holds that all matters must be viewed in a light most favorable to the non-moving party (us). Instead, the panel upheld Kallon's rulings that gave Ingram the benefit of the doubt at every turn.
Why this opinion had to be stamped "Do Not Publish" -- We probably could point to more than a dozen reasons that this case could not be recorded in the actual law. But here's the No. 1 reason: The appellate court, more or less, overturned key provisions of the FDCPA, holding that it's OK for debt collectors to resort to deceptive statements, misrepresentations, threats, and out-and-out lies in efforts to collect a debt. Of course, that's not what the law says, so the ruling had to be kicked into the nether world of unpublished opinions.
That's the place where, all too often, truth, facts, law, and justice go to die.